Tracing the Likeness of Coulten Boushie in the Law Classroom (cross posted on Ablawg.ca)

On January 29, 2018, the nation’s gaze was decidedly fixed on Battleford, Saskatchewan where the second-degree murder trial of Gerald Stanley was commencing. From that first day of jury selection to the present, there is a general sense of shock, outrage and disbelief from so many corners of our country. In the legal community, there is much debate on the legal issues arising from the trial as well as concerns with jury selection and the presence of discriminatory practices that are embedded in our justice system. Many voices are being heard that are challenging the traditional common law perspective. Many of these voices are from the Indigenous community who are speaking from their heart and from their own personal experiences. As part of this reaction, the legal community is debating these issues through a variety of lenses and all sides of the issues. Like most everyone touched by this issue, I have read these accounts with interest. As a lawyer who practiced criminal law and now teaches it, my initial reaction is typically lawyerly: to parse the charge to the jury for legal errors, to debate the efficacy of peremptory challenges and to call for change in our justice system. But the overwhelming message, in my view, the message which needs to be presented in the law classroom is not just one promoting a legalistic analysis but one providing a broader more meaningful message presenting this case and this verdict as part of an overarching theme or subtext, which can be traced in the law classroom.

As mentioned, there are many salient legal arguments to be made in wake of the acquittal of Stanley for the murder of Colten Boushie. Most of those arguments are legalistic involving the law of homicide and the mens rea requirements for unlawful act manslaughter, the legal significance of the so-called “defence” of accident, opinion and expert evidence, instructions to the jury, and jury selection. But overlaid onto these legal arguments is the brutal truth – that our criminal justice system is slow to embrace the kind of change needed to make our justice system reflective of our Indigenous peoples. In fact, we have been meandering toward change in a very familiar and comfortable manner. To my case-law attuned mind comes the expression “incremental” change (i.e. R v Salituro, [1991] 3 SCR 654) as a description of how the justice system has responded to the dire issues raised by the Indigenous voices attempting to awaken the system. I cannot pretend to speak on behalf of those voices nor do I have the right to do so but I can through my own personal perspective add to this much needed call for change. To trace the likeness of this issue though the law classroom is an important piece of the awareness or awakening which needs to happen in our legal profession. We are the defenders of the rule of law but also the framers of that law and we need the future of our profession to be mindful of this awesome duty to create sustainable and meaningful change through law.

The trail must start somewhere, and I will choose to start it with a case which resonated with me as a young law student and then lawyer and still catches in my throat today: the story of Donald Marshall Jr., a young Mi’kmaq man wrongfully convicted of murder. His story was an egregious example of the miscarriage of justice our system could generate, and a shameful example of the discrimination and racism tolerated in that system. Out of that example came an acquittal, after years in prison, a royal commission advocating change, and a man who dedicated his life and voice to Indigenous rights. As inspirational as he is even a decade after his death in 2009, his example dates back to the 1980’s, some 35 years ago. His fight for traditional fishing rights culminated in a decision by the Supreme Court of Canada in 1999 (R v Marshall, [1999] 3 SCR 456) in which he was vindicated yet again for breaches of the Fisheries Act but this time on behalf of his people. This story exemplifies the subtext that can be found within the borders of case law and between the words enunciated by a jury verdict.

But I do not need to go back that far to continue the trace or the shadow cast by the “long arm of the law.” When I taught as a sessional instructor human rights and civil liberties to undergraduate criminal justice students in the 2000’s, I was sure to discuss Burnt Church First Nation’s struggle with fishing rights, the Neil Stonechild tragic and unnecessary death, and the treatment and incarceration of Indigenous peoples in the prison system as seen through Michael Jackson QC’s perspective on prisoner’s rights, the Arbour Report on the Prison for Women and the numerous reports from the Correctional Investigator of Canada. Added to this narrative is the Truth and Reconciliation Report and the call to action for monumental change, not incremental change, needed to eradicate injustice in our system. This mountain of information is more than a discussion piece it is the reality of our criminal justice system.

But the Stanley trial and the implications of the case shakes me out of past legal narratives to the present and to the continuing issues we see within the criminal justice system. In the 1L classroom my criminal law colleagues and I implemented curriculum changes to include Aboriginal sentencing issues and a panel discussion to hear, understand and experience the human connection between Gladue reports (R v Gladue, [1999] 1 SCR 688) and the criminal court room. Again, an example of how the law almost two decades ago changed but the impact of that change has not been a visceral one but a legalistic conversation which still haunts the criminal court room and the law classroom.

New cases emerge, adding to the memories of Donald Marshall and emphasizing the need to offer these examples as the contextual foreground in law classroom doctrinal learnings. Gladue comes easily to us as a paradigm of a discrete area of law involving clear statutory directions in s. 718.2 to include the aboriginal perspective. These newer examples are more difficult legally as they serve as counterpoints to the traditional trope of miscarriage of justice through the accused’s perspective. We are comfortable in law dressing our outrage in the language of legal errors directed toward our most cherished values as embodied in the presumption of innocence. This is important as evidenced in the Donald Marshall case but what is not evident and what is harder to debate is the criminal justice system as a societal mirror of how we implement the rule of law on behalf of the entire nation. To push ourselves to view justice in a big picture way is counterintuitive to the lawyer who is trained to peer through the magnifying glass and find those lacunae, those minute errors which provide us with the “Aha” moment when we can decry a miscarriage of justice on behalf of the accused who must face the imbalance of state authority and power. But it behoves us all to take up the mantle of lasting change by widening the focus and emboldening a deeper conversation involving the entirety of the justice system. These cases sit at the edges of the law but also serve as the reminders of what is at stake when the criminal justice system provides space for the stereotypical characterization of Cindy Gladue in R v Barton, 2017 ABCA 216 (see my previous posting on the case) and the impassive resistance of the complainant in R v Blanchard (see Alice Woolley’s excellent posting on this case)

The subtext or context or trace of the likeness of Colten Bushie can and must be taken in the law classroom. We must approach the discriminatory and slow to change mechanisms of our criminal justice system not as a mere legal problem or as a simple teachable legal moment akin to an in-class case hypothetical but as a mindful approach to what the legal principles and case law really mean. These discussions are hard and debatable but that does not mean we do not do it. We should question and debate the role of law in our society. A society committed to diversity, change and tolerance as reflected in our laws and our application of those laws. Sometimes incremental change works but sometimes it merely pulls from behind and pushes forward the vestiges of our legal past. If we want real change we need to listen to the echoes of the past through the lens of today and that includes the black-letter law we teach in the classroom.

We have the tools of reconciliation – desire and willingness to change but we need courage to do so. Our justice system is slow to embrace and integrate indigenous learning and practices. It should not be a question of accommodating or conforming. It should be a question of inclusivity. We are a unique nation and we need to recognize injustice when we see it and welcome those voices into the law classroom.

 

 

Who Are the “Parents of the Nation”? Thoughts on the Stephan Case and Section 215 of the Criminal Code ( also published on the ABlawg.ca website)

Much has been written and said on the characteristics of a “good” parent. Such information is easily accessible by anyone with a library card and internet access. It can be found by a click of our mouse on various blog postings (click here for a list of parenting blogs, which share the “real truth” about parenting) and dedicated websites (click here for a list of “not-to-be-missed” websites). Even celebrity has something to say about parenting practices; cue self-styled “lifestyle” guru, Gwyneth Paltrow, who famously has her children on a controversial low-carb, sugar free diet. Social media is another fount of information, often in the form of criticism or apologies. All of these venues enforce a “normative” notion of parenting. But through all this data there seems to be a bright-line drawn between “good” and “bad” parenting. For example, “bad” parents administer cocaine to a child (R v TB, 2010 ONSC 1579), knowingly leave a child in a car for an extended period of time during a hot summer afternoon (R v Huang, 2015 ONCJ 46), or intentionally attacks a child with a knife (R v BJG, 2013 ABCA 260). In those instances, the egregious conduct is not merely “bad” parenting but criminal behavior deserving of state imposed sanctions and its concomitant stigma. Although we can recognize “criminal” parenting when we see it, the real difficulty lies in identifying behaviors that are not so evidently “bad.” The recent Stephan case has ignited a debate on where that line between “bad” and “criminal” should be drawn; or is the line already drawn perhaps not as bright as we might have previously believed?

David and Collet Stephan were convicted of failing to provide the necessities of life to their 19-month old child, Ezekiel, who died from bacterial meningitis after the couple rejected medical treatment for the child opting instead for naturopathic remedies. The seven-day trial attracted intense media and social media attention. For instance, a quick and crude Google search of “David Stephan” provided 91,400 results, while “Collet Stephan” produced 67,700 hits. Interestingly, a Google search for “David and Collet Stephan” netted 40,800 results, while the reverse search of “Collet and David Stephan” suggestively revealed only 912 web hits. This difference can probably be explained by David Stephan’s very public disappointment in the verdict and the “open letter” to the jury he posted on Facebook. In any event, the reaction to the verdict was not homogeneous, with many people supportive of the couple shocked at the guilty verdict, while others were distinctly unsurprised. The reason for this disconnect may lie in the actual offence charged, which is found under section 215 of the Criminal Code.

Section 215(1) creates legal duties on people based on the nature of the relationships between them, or based on undertakings to care for a person in need. Under subsection 2, it is the failure to perform that duty which lies at the crux of the offence. Traditionally, criminal law is disinclined to base criminal sanction on omissions or failures to act. This disinclination can be seen in the parameters of criminal omissions such as found in s. 219, criminal negligence, wherein an omission can be an element of the offence if it involves a “duty imposed by law.” Indeed, such a legal duty can be found under s. 215. Even though omissions sit uncomfortably within the criminal law, section 215 as a crime of neglect has been in the Criminal Code since its inception in 1892.

Section 215 has changed very little over the ensuing 134 years other than making the application of the section gender neutral and increasing the maximum penalty upon conviction. Since 2005, if the Crown elects to proceed by indictment, the maximum sentence is five years incarceration, increased from the previous maximum of two years. On summary conviction maximum has also increased to a period of eighteen months incarceration, up from six months and/or a $2,000 fine. Despite the longevity of this section, there appears to be a surprisingly small number of reported cases (Westlaw search produced 371 cases with 149 of those pertaining to the duty of a “parent” to a child). The historical reason for the parental legal duty was to account for the husband/father deserting a wife and child, which caused an endangerment of life and health (R v Middleton, 1997 CanLII 12350 (ON SC) LaForme J (as he then was) at para 10). Although in later amendments, the definition of “parent” included either spouse, the broader objective of criminalizing parental conduct remained the same.

Case law has distinguished the duty imposed as a result of a familial or familial-like relationship from the duty arising from an undertaking to care for a person in need. In the latter case, it is this “undertaking” to protect and provide for another person which controls the duty. This focus on an “undertaking” has its genesis in contract law as noted in Burbidge’s Digest of the Criminal Law published in 1890 before the Criminal Code was introduced. In Article 269 the duty to provide the necessaries of life arises “by contract or by law, or by the act of taking charge.” This concept of “taking charge” with a resultant undertaking to assist is consistent with common law omissions, which arises from a positive act of the accused. Once an accused acts by undertaking to care for another then the duty to continue those actions arise. Any failure or neglect of that undertaking or duty, which results in harm or a risk of harm, becomes the omission under the criminal law. Much of the legal controversy regarding this duty naturally focuses on the actual initial act or undertaking and in what circumstances the law should find such a duty to exist or not.

In the matter of a “parent, guardian or head of a family” who fails to provide the “necessaries of life” for a child under sixteen years, it is the ongoing nuclear relationship which binds them. Case law, as it relates to a parent’s duty to a child, does not focus on the creation of that relationship. Rather, the more pressing issue, in terms of the actus reus requirements, is whether or not the neglect constitutes the “necessaries of life” which endangers the life or health of the child. In the 1912 Sydney case (20 CCC 376 (SKCA)), the term “necessaries” included “food, clothing, shelter, and medical attendance.” That list was non-exhaustive and depended upon the circumstances of the case. The term also acquires its meaning from the Criminal Code as the heading under which s. 215 is found is entitled Duties Tending to Preservation of Life. By this “preamble,” necessaries must be those which “tend to preserve life” and are not necessaries “in their ordinary legal sense” (Rex v Brooks (1902), 5 CCC 372 (BCCA)).

This uncodified judicial definition of “necessaries of life” has broadened in scope over the years to reflect society’s changing values. Modernity lies at the core of these changes as technological advances, the humanistic approach, and as mentioned earlier, the advent of media has required more or even different parental obligations. The “necessaries of life” has become more than adequate subsistence as it reflects society’s concern to protect the most vulnerable in our society from harm. To that end, Justice G. A. Martin in the 1981 Ontario Court of Appeal case of Popen (60 C.C.C. (2d) 232) found the “necessaries of life” should not be confined to specific necessities such as food and shelter. Rather, it also includes a more general duty to provide “necessary protection of a child from harm” (Popen at para 20). This broader definition was applied in the 1999 Hariczuk case ([1999] OJ No. 1424 (ONCJ)), in which Justice Vaillancourt found a parental duty, under s. 215, to provide a safe environment for a child. Tragically, the accused, who was making great progress in his drug addiction treatment in order to be a “good” parent to his six-year old son, prepared his methadone treatment by mixing it with his son’s favourite beverage. Although Mr. Hariczuk cautioned his son not to drink it, the child did so when he awoke thirsty in the middle of the night. In that case, Hariczuk was convicted of manslaughter.

Although society shares the obligation to protect children as seen through the myriad of child protection legislation both federally and provincially, public policy requires that parents must meet the standard of conduct of a reasonably prudent parent. It is in those cases where the failure in the s. 215 duty is a “marked departure” from the norm, that the criminal law bright-line is drawn between a “bad” parent and a “criminal” one (R v Naglik, [1993] 3 SCR 122, 1993 CanLII 64 (SCC), Lamer CJ at paras 45 to 46). This marked or criminal departure from the accepted standard of care constitutes the mens rea or fault element of the offence under s. 215. It is an objective standard of liability, which does not depend on the awareness or intention of the accused but on the legal construction of a standard embodied by the “reasonably prudent parent.” Therefore, the determination of criminal responsibility depends on "a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child"(Naglik at para 46; R v JF, [2008] 3 SCR 215, 2008 SCC 60 at para 8).

Despite Lamer CJ’s great efforts in the late eighties and early nineties to imbue the objective standard with the personal characteristics of the accused as a concession to human frailties in order to ensure the morally innocent would not be captured by the criminal law, the “reasonably prudent parent” does not “look” like the accused. The “modification” to the objective standard, if it can even be called that, lies in the requirement that the trier of fact assess the standard in light of the circumstances of the case. Therefore, it is in the determination of the facts and how they connect to both the actus reus and mens rea requirements, which will result in a finding that certain parental conduct is or is not criminal.

Of course, this suggests a range of contextualized conduct that will attract penal sanctioning. In fact, many cases involving the death of a child result in charges of murder (s. 229) or manslaughter (s. 222(5)(a) or (b)) or criminal negligence causing death (s.221). The legal duty found under s.215 can provide the underlying unlawful act for all of these charges, even for the offence of murder, which requires a subjective fault element. For example, in R v Boittneau, (269 CCC (3d) 227, 2011 ONCA 194) the grandparents were convicted of second-degree murder for the neglect of their grandson. Another Alberta trial is soon to begin in which the parents are charged with first-degree murder as a result of the death of their son who died of a bacterial infection, allegedly contracted as a result neglect.  Some cases, not involving a fatality, may be a criminal negligence charge, under s. 219 of the Criminal Code, predicated on s. 215 as the legal duty required as part of the actus reus of the offence. In those cases, the prosecution must not only establish the required elements of s. 215 but must also prove that the conduct of the accused, objectively viewed, displayed a “wanton and reckless disregard for the lives and safety of others” and was a marked and substantial departure from the required standard. The higher degree of departure being both “marked” and “substantial” is consistent with the higher possible penalties upon conviction (see R v ADH, [2013] 2 SCR 269, 2013 SCC 28 Cromwell J at para 61).

Understanding the background and make-up of s. 215 does assist us in discussing the Stephan case and the resultant public interest in the file. In many ways, the circumstances fit easily within the legal duty as outlined in s. 215 and the judicial interpretation of the necessaries of life. There are many cases where a parent’s failure to provide a child with prompt and adequate medical attention has resulted in a conviction under s. 215 or for the more serious offences of criminal negligence or manslaughter. Some of these cases are in the context of the belief system of the parents, typically on religious grounds. In the seminal case of Tutton and Tutton ([1989] 1 SCR 1392), Arthur and Carol Tutton were convicted of manslaughter as a result of stopping their diabetic child’s insulin injections in favour of faith healing. The Supreme Court of Canada sent the matter back for retrial but on the basis of the inadequacy of the charge to the jury on the defence of mistake of fact. In that case too, public opinion was divided. According to a news article describing the conviction, “a number of supporters cried and embraced” the Tuttons.

Although factually, the Stephan case seems to “fit” the kind of conduct prosecuted under s. 215, the emphasis must not be on the tragic outcome but on whether or not the conduct was a “marked departure” from the reasonable parent standard. As with so many legal terms “marked” is not quantified but is to be read in the context of the criminal sanction. As with driving offences, to attract a criminal sanction, the conduct must involve more than mere imperfections. Thus, the question of what is “marked” is not based on “are these parents “bad” parents,” or even, “based on my own personal standards are these parents bad parents,” but rather the question is based on the societal standard in place in the context of the circumstances.  Therefore, it is not those who occasionally slip off that standard or even those who are continually slightly below that standard, who should be subject to society’s ultimate approbation through our criminal law. For instance, in the 2006 Brennan case (243 NSR (2d) 18 (NSPC)), Rhonda Brennan was acquitted of failing to provide the necessaries of life to her two-month old child. The child was born seven and a half months premature. Although the baby initially gained weight and seemed to thrive while in the hospital, once in the mother’s care, the baby’s weight declined. Rhonda generally followed medical instruction, took her baby to the public health nurse and pediatrician, and implemented a feeding regime. In acquitting Rhonda, Provincial Court Judge Tufts found that although she failed to adequately feed the baby, the risk of harm to the child would not have been apparent to a reasonably prudent parent. Another parent may have been more “attuned” to the situation and more “aggressive” in their approach but the accused’s conduct was not a marked departure from the standard.  In the Stephan case people will disagree on the verdict based on their own concept of parenting and strongly held beliefs but, accepting that the jury was properly instructed on the law, the finding of guilt would be based on a finding that in all of the circumstances, objectively viewed, the Stephans’ conduct was a marked departure from that of the reasonably prudent parent.

Still there is room for debate over the criminalization of parenting and the efficacy of permitting the law access into our most intimate relationships (in a different context I harken back to Prime Minister Pierre E. Trudeau’s oft quoted statement that “The state has no business in the bedrooms of the nation”). We should, as a society, discuss where the line should be drawn and when we should “invite” the law into our homes or sanction its entrance through our Criminal Code in the guise of parens patriae (translates to “parents of the nation”). Perhaps we should also reconsider how we judge ourselves and our neighbours, particularly in social media.  In an age of opting out of vaccinations and home schooling, the boundaries of “good” and “bad” parenting seem to shift and waver with each Twitter re-tweet and every Facebook “like”: Was that lunch nutritious enough? Do my kids go to bed too late? Are my children too scheduled? And, finally, am I being judged for my parental decisions? Although all of these concerns are a far cry from the kind of conduct underlying s. 215, all of those criminal cases, including the Stephan case, raise the tension we all feel between private life and public expectations.

 

The Ideablawg Criminal Law Trend for 2013-2014: On Sentencing and On Podcasting

I start my criminal lectures at MRU with a current events “sweep” of criminal cases to ground the principles and the legal “speak,” learned throughout the course, with what is really going on out there in the real world of crime. This connects concept to context, which is so important in law, in order to teach the student to apply principles to a real life fact situation. This acquired aptitude requires the student to be comfortable outside of the academic rigour of law books, a much-needed skill in the lawyering world, which promotes creativity as the context forces the student to visualize alternate solutions for the legal problem.

As I teach in Alberta, I tend to look locally when I scout out the criminal law news of the week. This past week was so full of connections that we spent a good half hour discussing three of these current cases. Interestingly, the cases themselves were connected as they all referred to the sentence imposed in each particular case.

Of course, sentencing is the last act in a criminal case where there is a conviction. Most of the “legal business” of criminal law is concerned with pre-sentence matters such as the elements of a criminal offence and the application of criminal procedure, particularly in the Charter era. Sentencing is not even taught in the mandatory first year criminal law courses and some law schools do not even offer a sentencing law course. And yet, it is the sentence, the punishment to be imposed, which garners the most public attention and hence catches the most media attention as well.

The reason for this preference is varied. My theory on the popularity of sentencing cases in the media is that sentencing tends to be easily understandable to the average citizen. Everyone appreciates the significance of time in jail. No one needs the Criminal Code to explain that. Furthermore, sentencing is the only piece of the case in which the human aspect is so “front and centre,” no longer taking a backseat to the incident itself.

The victim, at a sentencing hearing, has the right to “speak” through the “victim impact statement” and is not merely a piece of evidence required by the prosecution to fulfill the legal requirements. Instead, the victim becomes a true stakeholder in the outcome as the Judge listens to the victim, not as a witness to the events, but as a participant, whose life was irretrievably changed.

The role of the convicted accused is also transformed from the defensive position wherein a legal “wall” is built around the accused to protect but also to minimize intrusion. It is only at the sentencing hearing that the accused steps out of a caricature of an accused and becomes filled in with the life stories all too familiar in the criminal courts of childhood troubles, conditions of abuse, and social failures. No wonder, it is the sentencing arena to which the public can so readily relate and which brings home, literally, the real life angst of the criminal law. 

On that note, it was unsurprising that the class started our current events journey with the Baumgartner case from Edmonton in which twenty-two year old Travis Baumgartner became the first Canadian to be sentenced for consecutive parole ineligibility terms for multiple murders under amendments to the Criminal Code from 2011. Section 745.51 of the Criminal Code permits such a sentence may be imposed by the trial Judge. Note the permissive “may” as the trial Judge is not mandated to impose such a sentence. Indeed, the section also includes the factors to consider in making the decision such as the character of the accused, the nature of the offence, and the circumstances of the incident. If the sentencing arises from a jury trial, the Judge must also consider the jury’s recommendation on whether or not the parole ineligibility should be consecutive under s. 745.21.

Baumgartner, a security guard shot four of his colleagues as they took ATM monies from the busy University of Alberta student HUB Mall.  Three of the guards died and the fourth survived. Baumgartner, as part of a plea negotiation, entered a plea of guilty to one count of first degree murder under s.231(2), two counts of second degree murder, and one count of attempt murder. As indicated by Associate Chief Justice Rooke in his reasons "these assassinations and executions were carried out by a cold-blooded killer, all with the simple motive of robbery." In sentencing Baumgartner to the agreed upon total sentence of life imprisonment with no chance for parole for forty years, Justice Rooke found the offence was “some of the most horrendous crimes that anyone can imagine.” However, it was not a case for the maximum parole ineligibility of seventy-five years, as Baumgartner was not the worst offender, being a young man with no prior criminal record and in recognition of the guilty plea, which showed remorse for his actions.

These amendments to the Criminal Code, part of the tough on crime agenda of Harper’s government, did attract much controversy. Critics voiced concerns over the political motivation of the change, suggesting it was merely a “political stunt” done to assuage the public fear of crime without any hard evidence such a change would in fact change crime statistics. In a word, the changes appeared to be more about “retribution bordering on vengeance” as characterized by D’Arcy Depoe of the Criminal Trial Lawyers’ Association and less about the sentencing principles of rehabilitation and deterrence.

On the other hand, sentencing is a punishment and does have an aspect of retribution for retributions sake. Certainly, the public outrage over concurrent sentences for multiple murders is understandable on a gut-level whereby a murder of one is equated with the murder of many. The controversy over this and the other numerous sentencing changes to the Criminal Code, such as the mandatory minimum sentences, is far from over, hence my suggestion that the hot button criminal law issue for 2013-2014 will focus on sentencing and these new amendments.

The other case we considered in class, another robbery case, was closer to the academic home as we discussed the 18 month jail sentence imposed on the ex MRU President Meghan Melnyk. Unlike Baumgartner, there was no joint agreement on sentence. As an aside, it must be pointed out that a sentencing Judge is not bound by a joint submission on sentence. In any event, considering the maximum sentence for robbery is life imprisonment, the sentence, in the eyes of the class seemed light. However, considering the position of counsel on sentence: defence asked for a conditional sentence or in the alternative ninety days, while the Crown asked for four years imprisonment being the typical “starting point” for such offences, the 18 month sentence appears to be within the range.  The eyebrow raising part of the matter was Melnyk’s concept of community work. Prior to sentencing she appeared at local High Schools discussing her situation and her gambling problem. Judge Brown, in sentencing Melnyk observed that she was paid for each appearance. This will definitely not be case when Melnyk fulfills the other part of her sentence when she is released from prison - 240 hours of community service.

The final case discussed was a sentence appeal argued before the Court of Appeal for Alberta. The Crown appealed the sentence imposed on ex-Stampeder running back, Joffery Reynolds, who was convicted by former Assistant Chief Judge Stevenson (of the provincial court and is now supernumery or a relief judge) of assaulting (actual convictions were for assault causing bodily harm under s. 267, assault under s. 266, and being unlawfully in a dwelling house under s.349) his ex-girlfriend for which he received a ninety-day sentence to be served intermittedly on weekends and two years probation as well as an apology letter and a five thousand dollar donation. The Crown’s position on sentence at trial and at appeal was for a two to three year sentence, an odd range considering a two year sentence is served in a provincial reformatory and a three year sentence is served in the much harsher federal system.

At trial, the defence recommended a non-custodial, particularly as Reynold’s celebrity status caused a media flurry and a diminishment of his public status. The Crown on appeal pointed to the sentencing Judge’s failure to consider the domestic nature of the offence. In discussion, the class clearly agreed with the Crown on that note, believing their relationship to be something more than just “buddies” as submitted by the defence.

This decision will be interesting as it may tackle the difficulty in sentencing the celebrity and it may also clarify the meaning of “domestic assault.” As an aside, the provincial government recently brought forward legislation to end intermittent sentences, which were used to allviate the burden of imprisonment where an offender had gainful employment. This may not be an issue raised on appeal but I believe this will cause a clash in the courts when the jail refuses to fufill a Judge's order to do so. Keep posted on this issue as well.

The other cases I had but were not discussed I will repeat here but I will not elaborate on today. Another sentencing case – the Paxton dangerous offender application is ongoing before Justice Martin. The Court of Appeal also heard an appeal against the conviction of the young offender in the Cavanagh murder case, which involved a “Mr. Big investigation.” Finally, a little off the crime path but still in the public welfare arena is the concern over work-related deaths in Alberta and the need to tighten regulatory laws in the area. The province recently went to the administrative efficiency of ticketing offenders, both employees and employers, in real-time for real-time breaches. However, the call is for more prosecutions, better outcomes, and a more serious consideration of criminal code charges for work-related incidents.

These cases, in my view, also signal some Canadian criminal law trends as the use of dangerous offender applications increase, as the courts struggle with unique investigation techniques in a Charter world, and as the public demands more and better action in the regulatory field. Keep an eye on my future blogs as we trend through the year.

On a final note is a new upcoming addition to this blog as I enter the world of podcasting. I intend to offer a short podcast on sections of the Criminal Code.

 

 

 

 

 

 

 

Calgary's Rough Ride Through The Emergency Laws

It has been a rough ride in Southern Alberta as the floodwaters subside and the damage becomes visible. The shock of seeing beautiful inner city neighbourhoods in Calgary left looking like war zones as a result of the sludge and mud is indelible. This surreal vision is mirrored by the unusual emergency laws in place during the flood and only recently lifted in Calgary.

Indeed Calgary's municipal bylaw requires the state of emergency to expire no later than 14 days after proclamation, unless the emergency is a pandemic, which expires at the end of 90 days.  Of note is Toronto’s emergency response to the SARS epidemic. The critical review of the response has shown endemic weaknesses in the system, particularly the health care system, which has become a lesson learned for other municipalities.  

As in a time of war, the emergency measures grants the province, municipalities (see Calgary’s emergency management bylaw here), and even the Federal government extraordinary powers. Even though the state of emergency has ended in Calgary, the municipal emergency management plan or MEP is still in place to ensure a smooth transition from immediate emergency to rebuilding. For example, the emergency management plan has been used by the City to bypass the usual red tape of municipal development rules to re-zone swaths of land for possible areas for temporary neighbourhoods for those without shelter and housing alternatives.

Calgary's plan also permits enhanced coordination between agencies through an implementation of three phases: response phase, local authority recovery phase, and community restoration and rehabilitation phase. The response phase, activated during the initial event, is for immediate response and mitigation. This would cover the first two weeks of the state of emergency. The second phase overlaps with the response phase as it ensures critical needs are met and bridges the immediate with short-term needs. Again this phase would have started during the two-week period that Calgary was in a state of emergency. The last phase, for rehabilitation and restoration, focuses on the long-term. The operations also transform during this phase shifting as they turn from an emergency operations centre (EOC) to a recovery operations centre (ROC). Clearly, Calgary is presently in the second phase of recovery and preparing for the rehabilitation phase.

In addition to the coordinated efforts through CEMA (Calgary Emergency Management Agency), there are emergency rules in place for businesses and other organizations, which handle sensitive documents. For example, the Law Society of Alberta sent out a newsletter during the flood to advise lawyers on disaster recovery including information on what to do if client and accounting files are water damaged to managing practice interruptions. The CBA (Canadian Bar Association) also has similar information.

Although, the local media has focused on information about the municipal emergency powers, and to a certain extent, the provincial powers, there has been scant discussion of the federal government’s role in disaster rebuilding. The federal government too has many laws, which they can utilize, when an emergency or a disaster strikes. These laws add support to the Ministry of Public Safety, now headed by The Honourable Vic Toews. The difficulty with this umbrella approach to disasters, such as in the Alberta flood, is the lack of focus on natural disasters in favour of a scheme, which can apply to all disasters including a terrorist threat. Of course the other difficulty with the Federal response is the slowness: funds pledged to support the disaster areas are often slow to come and as a result may be too little too late.

The main response tool is the Federal Disaster Financial Assistance Arrangements or DFAA. New guidelines were revised in 2008 to provide disaster relief to provinces and territories. Although, the principles of the program suggest the primary organization responsible for relief is the provincial government, the federal program is available for “support” or enhancement of the provincial efforts. The program does not, except in certain circumstances, apply to the fighting of forest or grass fires. There is a threshold monetary amount, which when exceeded triggers the federal “cost sharing” program. The program is announced in accordance with the Emergency Management Act and usually requires either a provincial request or a federal determination that assistance is needed through an Order-In-Council.

The Act was implemented in 2007 to “strengthen emergency management in Canada.” Despite this, past disasters in Canada have shown that the federal government’s response, unlike the municipal response, is slow. Of special concern is the lack of a federal mitigation strategy, which may result in funding for the infrastructure for disaster prevention as opposed to disaster relief. This is in stark contrast to the federal government’s response to international disasters, which have been touted as a global model. On the other hand, the provincial response many critics say has been excellent during this flood mostly due to the Premier’s stance on relief. Unfortunately, the quick provincial response this time has much to do with the provincial lack of response with the Slave Lake fire last year. Fortunately, the province reviewed the response and the nineteen recommendations implemented as a result of the review enhanced the provincial reaction and made it possible for flood weary Albertans to move forward.

Today, as the Stampede festivities go on and the City rebounds, there is much to still do. A recent torrential downpour re-flooded some flooded out areas reminding us of the fragility of our successes. A look to our neighbours – High River and the Siksika Nation, remind us that we are still not out of the water yet. Hopefully, all communities will receive the governmental support they need in the days and months to come.

In Remembrance: The Legacy of Mr. Justice Henry Nolan

Today, we remember the wars fought, the men and women lost, and the personal sacrifices, which formed Canada. Today we send our appreciation to those presently in service for our country and we are thankful to live in a country that values democracy and liberty. Last Remembrance Day, my posting was entitled “Lest We Forget,” which offered some profound words from poet/soldiers of WWI and WWII, including a moving passage from F.R. Scott, a Canadian lawyer who was an important civil liberties advocate and past Dean of McGill Law School.

This Remembrance Day, I recall Justice Henry Grattan Nolan, a Justice of the Supreme Court of Canada from March 1956 to July 1957, was born in Calgary, Alberta in 1895. His father, Patrick or Paddy Nolan, was one of the greatest criminal trial lawyers of his time. Paddy Nolan was a flamboyant character. A man of the new west, he was involved in all aspects of Calgary society, even appearing in the Gilbert and Sullivan comic opera “Trial By Jury.”

His son, Henry Nolan, was more serious by nature. A Rhodes Scholar, Henry served in the 49th Canadian Battalion (from Edmonton, Alberta) in France. There he was wounded fighting in the Battle of Cambrai in November 1917. He received the Military Cross in 1918. After completing his studies at Oxford, England, Henry joined R.B. Bennett’s law firm. Bennett had often been opposing counsel to his father, Paddy. It has been said when Bennett was opposing Nolan in the Supreme Court of Canada in 1908, Bennett entered into the courtroom with his junior, issuing orders: “Boy, give me Phipson on Evidence,” “Boy, give me Kenny on Crimes.” To this, Paddy replied “Boy, get me Bennett on Bologney.”  

Henry Nolan re-enlisted at the outbreak of World War II and served with the Canadian Army. Rising through the ranks, Nolan became a Brigadier as the Vice-Judge Advocate General. From the end of the war to 1948, Nolan served in Tokyo as a Prosecutor for Canada before the International Military Tribunal for the Far East (IMTFE). Since then, Canada has taken a strong role in the prosecution of war criminals, most notably with Louise Arbour, who acted as Chief Prosecutor before the Rwanda and Yugoslavia War Crime Tribunals.

Although, Justice Nolan died prematurely, at the age of 64 and only spent one year on the Supreme Court of Canada, he authored a number of the cases. Most notably however was his commitment to his country as a soldier in World War I and II and as a protector of civil liberties and human rights as a military lawyer and war crimes prosecutor. We remember Justice Nolan as we remember all who contributed to our country in this way.

 

Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case

Presently, there are essentially two different kinds or categories of criminal intent: subjective and objective. Intent or mens rea is the fault requirement of a crime. Without intent or the intention to do the prohibited act, there is no crime and the accused should be acquitted. Traditionally, the criminal law recognized only one category of intent: subjective mens rea as the basis for a criminal offence. Subjective intent requires the prosecutor to prove beyond a reasonable doubt that this accused intended his actions. This requires the trier of fact to contemplate on the thought processes of the accused as presented through the evidence. Subjective intent differs greatly from objective intent, which sets up as a model of behaviour the standard of the “reasonable man.” Thus, the trier of fact when considering an objective mens rea offence must consider what a reasonable man would have done in the circumstances. If the accused fails to act in accordance with this standard or model of behaviour, the accused is deemed guilty of the offence, even if the accused did not intend the consequences of his actions.

Objective intent can be a harsh standard as it can be argued that those individuals who are not “average” or have some deficiencies of character cannot possibly reach the standard of a reasonable man. On the other hand, the criminal law’s main thrust is to protect the public. In harsh terms then, the criminal law punishes those who are unsafe to protect the majority of people who are fully aware of what is a reasonable course of action in the circumstances.

I stop to reflect on the term “reasonable man.” This traditionally was the term and equally traditionally this was the standard: a reasonable and sober man. Not a woman, but a man. Obviously when society accepted the equality of the sexes, this phrase was changes to “reasonable person.” Of course there is no description of a “reasonable person.” One cannot simply look up the phrase in a dictionary and find a full description or even a picture of such a venerated individual. No, triers of fact are left to their own devices in conjuring up such an individual, presumably because the trier of fact is assumed to be a reasonable person. In almost a tautological argument, the presumed reasonable person assumes a reasonable person for the purposes of determining the guilt or innocence of an accused person.

As a result, the objective standard of intent is not favoured by the defence and yet, unsurprisingly is favoured by the prosecutor. It is much easier to rely on a concept of reasonableness, than it is to determine a particular person’s intention. As the bar is lowered, convictions occur more readily in an objective mens rea crime. Typically, however such crimes were reserved to unsafe licensed behaviour such as careless use of a firearm or dangerous driving. A licensed activity requires a certain licensing standard and thus if you fall below that standard while involved in a dangerous activity, then objective mens rea should apply: common sense dictates it must. And that is where we come to the new Supreme Court of Canada case of R. v. Walle, 2012 SCC 41.

Adrian Walle was charged and convicted of second-degree murder, when he shot at point blank range with a sawed-off .22 calibre rifle, Jeffery Shuckburgh, a Calgary bar owner who at the time was escorting Walle off the premises. Walle’s trial counsel argued that the rifle went off due to an unintentional movement made by the accused. In other words, Walle’s actions were not voluntary as he acted without awareness of his actions, in other words the shooting was purely accidental. A prohibited act or the actus reus of a crime must be a voluntary act. Without a voluntary prohibited act, there is no crime. This argument had little basis in the evidence and the trial judge, sitting without a jury as occurs when a case is complicated or based on legal argument, made the following finding in convicting the accused:


I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.


The trial judge also relied upon the “common sense inference,” which contemplates the reasonable person or that a “sane and sober person” intends the reasonable and probable consequences of his acts. On appeal, counsel for the defence argued that the trial judge was wrong to rely upon this “common sense inference” without recognizing that Adrian Walle was not only under the influence of alcohol at the time, but was also suffering from various psychiatric disorders including “Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder.”

 

The Supreme Court of Canada unanimously disposed of this appeal. In a judgment written by new appointment Mr. Justice Moldaver, who I have written on in previous posting, the court easily rejected this argument on the dual basis that this argument was not raised at the time of trial and that a trier of fact need not refer in the reasons to every piece of evidence proffered. As long as the decision appears to be based upon the relevant evidence, which it was in this case, the reasons are sound. The fact the issue was not raised at trial merely goes to trial tactics. Trial counsel views a case in a certain way and crafts a trial position as a result. Often, counsel will at trial pursue this theory solely and thus not raise very possible argument on the case as it would detract from the chosen position.

The secondary argument on appeal, raised by the intervenor’s in the case, the Criminal Lawyers’ Association of Ontario, cause the court more concern. The crux of that argument involved the propriety of using the “common sense inference” in circumstances where the accused is clearly not an individual who practices common sense due to his psychiatric issues. Such an inference essentially imports an objective mens rea standard into a crime which is considered one requiring subjective intent. To convict of murder, the prosecutor was obliged to prove beyond a reasonable doubt that Walle intended to kill or that he was reckless as to whether death would be a consequence of his actions. Murder is not based on what a reasonable person should have done at the time. However, manslaughter is an objective mens rea crime, which requires an accused to have an objective awareness that his actions will cause bodily harm. In murder, the accused must be subjectively aware that his actions will cause death.

Of course, in Walle’s case, the argument is a strong one. Certainly, Mr. Walle would definitely not be the poster-boy for a reasonable person nor would he be described as “sane and sober.” Despite this, Justice Moldaver rejected this argument but with a caveat. In his view, the “common sense inference” “provides a jury with a marker against which to measure the rather amorphous concept of intent.” The instruction also cautions the jury that such an inference may be made but is not required to be made in their deliberations on intent.

Leaving aside that the Walle case did not employ a jury, Justice Moldaver’s comments highlight the difficulty with the concept. To view the inference as “a marker against which to measure” in my mind clearly suggests the objective standard of mens rea is at work. Indeed, it is difficult not to view this inference as anything but applying an objective standard based upon the trier of facts conception of what a reasonable person would have done in the circumstances. Thus, the objective standard is not only alive and well in Canadian criminal law, it has crept into the very heart of criminal law precepts, which require those core crimes such as murder and theft, require subjective intention. This inevitably should leave us wondering if the categorizing of the intention required for a particular crime is history, in favour of what the Supreme Court of Canada likes to call the “principled approach” to legal decision-making.

In closing, I refer back to the finding of the trial judge mentioned earlier that “when the accused Walle deliberately pulled the trigger … he knew that the reasonable and probable consequence...” By the trial judge using that phrase “reasonable and probable,” he has blurred the lines between objective and subjective intention, ensuring that the concept of “reasonable person,” whoever that may be, is an integral part of the crime of murder.

The Supreme Court of Canada in a much earlier 1990 Charter case said, in the majority judgment written by Chief Justice Lamer, this about the importance of subjective mens rea in R. v. Martineau:


In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.


In the end, it is clear that there was ample evidence to uphold Walle’s conviction, but as they say, bad facts lead to bad laws. The question is whether this approach is a foreshadowing of what is to come in terms of the Court’s position on intention or whether it is merely a specific response to a particularly heinous crime.

 

Whatcott In The Courts Again

Last Fall, I discussed the cases of William Whatcott in previous blog postings. I say cases, as William Whatcott is before the Courts in two different, yet related matters.

On October 12, 2011, the Supreme Court of Canada reserved decision on the Whatcott case, which raised the issue of the constitutionality of the hate speech section of the Saskatchewan Human Rights Code. Whatcott, a prolific pamphleteer, was found in violation of the Saskatchewan provisions for delivering his pamphlets at various homes in Regina and Saskatchewan. People complained about the pamphlets some of which were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and "Sodomites In Our Public Schools." As a result, Whatcott was fined for violating s. 14(1)(b) of the Code on the basis the pamphlets “promotes hatred against individuals because of their sexual orientation.”

The Saskatchewan Court of Appeal overturned the Tribunal finding, but not on the basis of Whatcott's Charter claim. Justice Hunter, after analyzing the pamphlets and the freedom of expression protections found within the Saskatchewan Human Rights Code, namely s. 5 and s. 14(2), found the pamphlets were not hate speech under the Code. Although Justice Smith agreed with the analysis, she but did so mainly on the basis of the relationship between the hate speech provisions and the constitutional values of freedom of expression as entrenched in the Charter. The Saskatchewan Human Rights Tribunal appealed the decision to the Supreme Court of Canada.

The other case, presently in the news, relates to Whatcott's pamphleteering efforts in Alberta on the University of Calgary campus in 2008. At the time, Whatcott was banned from the property and was served with a trespass notice for being in violation. Alberta Provincial Court Judge Bascom stayed the proceedings on the rationale the notice violated s.2(b) of the CharterThe Crown has now appealed this decision, which will be heard on March 30, 2012 at the Alberta Court of Queen's Bench. 

Read my previous postings on the issue here:

The Road Taken By The Supreme Court of Canada

A Message of Tolerance

Blog Update: The Limits Of Expression

Law, Literature, And Inherit The Wind

 

 

The Sixty Day Review: Occupy Canada and Impaired Driving Alberta

Slightly more than sixty blog days have passed and it is time to review. I have chosen two of my most popular posting areas to review: the Occupy movement and the new Alberta impaired driving laws

As discussed previously, although the courts have recognized violations of freedom of expression resulting from the City's bylaws prohibiting the erecting of shelters in public spaces, these laws have been saved under s.1 of the Charter. This means the legislated restrictions on freedom of expression is justifiable in a free and democratic society. These decisions from across Canada have resulted in the removal of the various "Tent Cities," which were the outward manifestation of the movement's "occupy" philosophy. 

The media coverage of the court cases to remove the protesters seemed to overshadow the true nature and meaning of the protest. I recently read an excellent blog posting by the Dean of Osgoode Hall Law School, Lorne Sussin, who reminds us of the important "teachable moments" presented by the protest. In particular, Dean Sussin speaks of poverty and the inequalities arising from it, as the true issue to be resolved. 

This reminder lead me back to the letters written by the CCLA (Canadian Civil Liberties Association) to the various Canadian Mayors to remind the municipalities of their obligation to respect the protestors' human rights through "constitutionally-required tolerance towards peaceful, democratic activities."

As discussed in my previous posting, these reminders from the Dean and the CCLA provides the lessons we can learn from Charter values.

The second area of review is the contentious amendments to the Alberta Traffic Safety Act, which was passed late Tuesday, December 6 by the Tory dominated Alberta Legislature. After the Bill was passed, Premier Redford "softened the blow" by announcing the incremental implementation of the law.

The first phase, to begin in January 2012, will see the extraordinary penalties assessed against those whose BAC is over 80 and face criminal code charges as well. The second phase, involving increased penalties for those driving with BAC between 50 and 80, has no implementation date stamp as yet. According to Premier Redford, this second phase will be "accompanied by lengthy public education."

Already, there has been charts, graphs, and other such various multimedia presentations on what the new legislation "means." The difficulty is that these explanations are merely a general guideline and should not be used as a definitive guide to drinking and driving in Alberta. The calculations are estimates at best which rely on certain assumptions, which may or may not be the same for every person. As a result, the education may lead to more confusion.

In British Columbia, the harsh impaired driving laws, on which Alberta fashioned their new law, received a legal set back as discussed in my previous blog here. The BC government has still not announced their response, other than to recognize the need to change their legislation in order to make it constitutionally worthy. The growing issue is the response to all of the affected drivers, who were penalized under the old regime, and whether they will receive some recourse from the government.

The Alberta saw a real time example of impaired driving when Conservative MP Peter Goldring was stopped, after his constituency Christmas party, for drinking and driving. Goldring is now sitting outside of his caucus as a result of the charges: refuse to provide a breath sample contrary to the Criminal Code.

The only truly accurate educative message is: do not drink alcohol and drive. To that end, December, according to the Alberta Traffic Safety Plan Calendar, is Impaired Driving Awareness Month. As said in previous blogs, awareness education may be the best message to stop the dire consequences of drinking and driving. 

In the past sixty days we have discussed many interesting and important connections between ideas and the law. I invite you to read or even re-read these blogs, by visiting the "home" page, to make your own connections.

 

Follow Up To Yesterday's Post

For further clarification, the proposed Alberta regime requires the administrative tribunal sitting on an appeal of an automatic roadside suspension, resulting from a "warn," to consider the certificate of annual maintenance of the approved screening device and the records of the last calibration of the device. On the basis of those documents, the police report, and any other relevant evidence, either sworn or unsworn, the tribunal must be satisfied that the driver consumed alcohol with a blood alcohol concentration equal to or over .05 at any time within 3 hours after having driven a motor vehicle, before confirming the licence suspension.

In the case of a "fail," where the BAC would be at or over .08, and would therefore trigger the Criminal Code process as well, the administrative appeal board would also consider any certificate of analysis pursuant to s.258 of the Criminal Code and any other relevant evidence. In other words, the appeal hearing would not be unlike trying the matter before the criminal courts except that the process is civil and the standard of proof is not beyond a reasonable doubt but a lower standard of balance of probabilities.

The B.C. regime differs significantly as discussed in the main blog and there is no ability to argue that the approved roadside screening device is faulty. In B.C., there has been significant issues with the roadside devices used.

The Alberta Response to the Partial Unconstitutionality of the British Columbia Impaired Driving Regime

Yesterday, in Sivia v. British Columbia (Superintendent of Motor Vehicles)the British Columbia Supreme Court Justice Sigurdson struck down portions of the amendments to the B.C. Motor Vehicle Act. The amendments in question related to the "automatic roadside prohibition" or ARP, imposed when a B.C. driver was stopped by police under the suspicion of drinking and driving.

The legislation permitted ARP based on the "warn" or "fail" of a roadside testing device. A "warn," equivalent to a BAC (blood alcohol concentration) of between .05 and .08, would result in immediate suspension of the driver's licence, impoundment of the motor vehicle, and a fine. A "fail" would attract similar sanctions but also the criminal law regime under s.254 of the Criminal Code. 

Appeals of the ARP went to an administrative tribunal, under the auspices of the Ministry of Transportation. According to the legislation, the appeal process was limited to considering whether or not the appellant was the driver and whether or not he/she received a "warn" or "fail" on the roadside device. There was no ability to argue against the suspension outside of those very limited factual parameters.

Justice Sigurdson concluded that the legislation was not contrary to s.11(d), the presumption of innocence protection in the Charter, nor was it contrary to s.(10)b, right to counsel. Similarly, s. 7, right to liberty, arguments were dismissed in a very summarily fashion. However, Justice Sigurdson did find the ARP, as it related to roadside device "fails," to be an unreasonable search and seizure under s.8 of the Charter as the scheme authorizes a warrantless search without procedural legal safeguards, most notably, the lack of a meaningful appeal process at the administrative level. Justice Sigurdson acknowledged that the ARP was civil in nature and not criminal but even so required some level of due process when determining if an ARP was appropriate under the regime.

How does this case impact Alberta's proposed amendments to the Traffic Safety Act?  If you read the media articles, certainly the Alberta government is touting this decision as the "mother of all decisions," which effectively gives the Alberta regime the "seal of approval." Why the boast? Simply put, the Alberta amendments differ in the administrative appeal process and does have those safeguards which created the Charter difficulties in British Columbia. Do you think maybe the Alberta government was aware of this case before they created their amendments? 

Certainly, if the same arguments as in Sivia were brought in Alberta, there would, most likely, be no finding of unconstitutionality. However, that does not mean there are no arguments to be made. I refer to my previous posts on the issue, which suggest other arguments, not argued in Sivia, and which can be found here.

Indeed, Sivia may provide further support for some of the issues raised in previous posts. Although Justice Sigurdson found the ARP regime was regulatory and not criminal in prospect, such differences do not foreclose Charter scrutiny and possible unconstitutionality.

Further, as discussed in the Administrative Tribunals and Duties of Fairness posting, the transportation tribunals hearing the ARP appeals will be under the "fairness" microscope and will need to give each appeal full and fair consideration or be subject to judicial review. Such considerations would include whether or not the licence was suspended contrary to the Charter and/or Charter values, even though the tribunal itself has no true remedial powers under the Charter. This is a heavy burden indeed. Particularly as the members of the tribunal do not necessarily have any legal training. 

In the end, the Alberta government's response appears to be slightly premature and overly confident. What is clear is this: the B.C. case will not end the legal concerns with this legislation.

 

The Social Costs of Alberta's New Impaired Driving Regime

Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens.

Tomorrow, I will take a deeper look at the legal issues arising out of this proposal.

Blog Update: The Limits Of Expression

In the November 19 blog entitled A Message Of Tolerance, I discussed the most recent decision by Alberta Provincial Court Judge Bascom to quash a University of Calgary trespass notice against William Whatcott for handing out anti-gay literature on campus. This case is an intersection of two current controversies surrounding freedom of expression: expression on campus and hate speech. 

Although wilfully promoting hatred under s. 319 of the Criminal Code infringes s.2(b) freedom of expression rights under the Charter, it is a justifiable infringement under s.1. In both the Keegstra case and the Zundel case, the Supreme Court of Canada recognized the expressive content of hate speech, albeit repugnant. It is under the s.1 analysis, wherein the Court determines if limiting the expression in a particular instance is justified, where the balancing of expression against Charter values of multiculturalism, equality, and human dignity occur. In this context, expression can and has been limited, particularly where such expression reaches criminal proportions.

However, it is in the non-criminal arena of human rights codes where the line between protection and limitation is not clearly drawn. Criminal hate offences require proof of a high level of subjective mens rea or fault element. Hate speech violations under the human rights codes do not require such a high level of intent, which is at the core of the issue in the other Whatcott case, now under reserve at the Supreme Court of Canada.

Similarly, the Boission v. Lund case, set to be heard at the Alberta Court of Appeal on December 7, raises the spectre of hate speech and limits to expression. There too the extent to which non-criminal hate speech can be restricted by human rights codes will be considered.

The other issue of interest, freedom of expression on campus, I have discussed in two previous postings: the November 8 blog on The Pridgen Case and Freedom Of Expression On Campus and the November 9 blog on Freedom of Expression in the Classroom. The Alberta Court of Appeal has reserved decision on the Pridgen case.

However, the ability of a University to restrict free expression, no matter how ugly, is a current issue, with Campus Pro-Life groups across Canada fighting against university prohibitions of their graphic anti-abortion campaigns. Currently, the Calgary group has a judicial review pending in the Alberta Queens Bench as of April 2011. Calgary, Carleton, Victoria and Guelph have all banned the clubs on campus.

Even university marching bands are not immune as the Queen's University marching band's explicitly discriminatory material against women has resulted in a suspension of the band's activities.

Although the intersection of expression and intolerance is not surprising, what is of interest is the locus operandi or the commonality of place, of this intersection: the university campus. As a result, how the Courts will determine expression limits on campus has just become even more complex.

A Message Of Tolerance

Relying upon s.2(b) freedom of expression rights under the Charter, Judge Bascom of the Alberta Provincial Court stayed a trespassing charge against William Whatcott, who received the trespass notice when distributing anti-gay literature at the University of Calgary. An indefinite ban was also lifted. This decision is consistent with other decisions on hate speech: no matter how abhorrent the message may be, there is expressive content in the communication and therefore protected under s.2(b).

Another factor for Judge Bascom was the place of the communication. This too is consistent with expression cases, as discussed in my November 17 blog on the City of Montreal case. According to Judge Bascom, the fact the incident occurred at a University was significant as "the concept of free expression is part of the University of Calgary philosophy." Interesting comment in light of the Pridgen case as discussed in my blog post here.

William Whatcott has not only been the subject of a Provincial Court decision, but also a Supreme Court of Canada case. Whatcott's case, in which he argued the hate speech provision of the Saskatchewan Human Rights Code is unconstitutional, is currently on reserve. Further information can be found in my blog postings here.

The determination of Charter rights are complex when faced with competing rights such as s. 2(b) freedom of expression versus the right not be discriminated against under s.15 of the Charter. In those instances, we, as a society, must look to the Courts to balance both rights meaningfully and fairly, in the context of Charter values, to come to the appropriate decision. 

Sometimes, society can also take some sage advice from those individuals, who we deem wise and worthy. I end this blog with a link to a message from Nobel Prize recipient, Lord Bertrand Russell. The message of tolerance can be heard here.

Music, Noise, And Expression

Yesterday evening I attended Impromptu, a collaborative concert showcasing avant-garde or experimental musicians sponsored by New Works Calgary. Although, I had heard the music played on the CJSW's Noise radio program, to actually be present when the musicians compose and play in such a contemporaneous fashion, is truly wonderful. But being the lawyer that I am, I began to wonder about the expressive content of music, and particularly, the expressive content of noise.

The City of Calgary's noise bylaw or Community Standards Bylaw which prohibits continuous and non-continuous annoying or disturbing noise, including music. Whether or not the sound is "objectionable" according to the bylaw, is a question of fact for a Court to determine. Yet, what may be music to one person's ears may be noise to another person. What is objectionable to one may not be objectionable to another. Community standards shift and change over time, over place, and over age and temperament of the listener. 

In terms of Charter protection, section 2(b), freedom of expression, protects the expressive content of an individual. Certainly, in some circumstances, sounds can have expressive content and thereby be worthy of protection. In the Supreme Court of Canada decision in City of Montreal, both the majority and dissenting justice found noise can have an expressive content. However, in the majority's view "while all expressive content is worthy of protection, the method or location of the expression may not be". Thus an amplification of music onto a public street may be protected as long as it does not impede the public's use of the area for passage or communication. In the end the final determinant is whether the "free expression in a given place undermines the values underlying" the Charter right of freedom of expression. To determine this the historical function of the public area must be reviewed as well determining whether or not the expression undermines free "democratic discourse, truth finding, and self-fulfilment." The majority upheld the municipal bylaw as a valid justifiable restriction.

Justice Binnie, writing the dissent, disagreed the bylaw was benign and justified. His comments on expressive content is interesting. Based on the Larousse definition of noise or bruit in French, is not intrinsically a nuisance. Binnie's concern over the wide breadth of the bylaw included the scenario of a McGill student listening to Mozart with the window open or Stephen Hawking amplifying his voice through his voice assistance device. He found the legislation unjustifiable. 

Expressive content as a signifier of Charter rights under s.2(b) in the end is not the full expression of what s.2(b) protects. Shifting society values is ultimately what gives our Charter meaning. But values do shift. Once Beethoven's Fifth Symphony was considered "noise" and even, according to Goethe, "a threat to civilisation." So what is noise today may very well be the music of the future.

Lest We Forget

Remembrance Day is a time of reflection. Every November 11 at 10:50 a.m., my family and I honour the day by sharing passages of poetry written by war poets. We then, at 11:00 a.m., observe a moment of silence. Last year we also went to Lunchbox Theatre in Calgary and watched the musical, In Flanders Field, based on the poet John McCrae's life. It was a moving production which left none of us with a dry eye. This year, we will repeat the observance and watch Lunchbox Theatre's play on World War II, entitled Jake's Gift

I have already decided which poems, I will present tomorrow and among them are three poems which exemplify the war poetry genre. The first poem is written by the World War One British poet, Wilfred Owen, entitled Dulce Et Decorum Est,  which refers to the words of Horace: dulce et decorum est pro patria mori. The phrase translates to "it is sweet to die for one's country." Wilfred Owen uses the phrase in a stunning description of death by gas where he warns against teaching young children "ardent for some desperate glory" the old lie as expressed in the phrase. Owen, a friend of another famous British poet Siegfried Sasson, died only 7 days before the Armistice was announced.

The second poet, Keith Douglas, served for Britain in World War II in the Middle East and in North Africa. He was shipped back to England in time to participate in the Normandy invasion of D-Day where he died. There are two of his poems I will read: Vergissmeinnicht (Forget-me-not) and How To Kill. His poetry holds deadly visceral energy yet lands softly as he declaims that "A shadow is a man when the mosquito death approaches."

Finally, I will read a poem written by the Canadian poet, rights advocate, and previous Dean of McGill Law School - F. R. Scott. I have discussed Scott in my previous posting, which can be read here. His poem, entitled Lest We Forget  was written in contemplation of World War II, with the death of his brother during World War One in mind. It has a more cynical tone as he suggests:

And many a brave Canadian youth

Will shed his blood on foreign shores,

And die for Democracy, Freedom, and Truth,

With his body full of Canadian ores,

Canadian nickel, lead and scrap,

Sold to the German, sold to the Jap,

With Capital watching the tickers.

 We shall not forget this Remembrance Day.

The Pridgen Case and Freedom of Speech On the Canadian Campus

Tomorrow, the Alberta Court of Appeal will hear arguments on the Pridgen case. The issue involves the use of Facebook postings to criticize a University of Calgary professor, contrary to the student code of conduct. In the lower court case, Madam Justice Strekaf considered whether the subsequent finding of non-academic misconduct by the Pridgen brothers was a violation of freedom of expression under s.2(b) of the Charter. Ultimately she ruled there was a violation and the restriction could not be justified under s.1 of the Charter.

The issue of freedom of speech on campus is troubling. Universities are seen as the defender of academic independence and the protector of free thought. Through this freedom, critical thought is created, nourished, and encouraged. Innovation and excellence is the by-product of free thought. To restrict it, results in a withering effect and a loss of free debate on controversial issues. Thus, there is a societal interest in protecting free expression on campus. Our democratic tradition demands it.

On the other hand, as mentioned in previous posts, freedom of expression is not absolute under our Canadian Charter. Speech can be restricted but only if justified in a free and democratic society. There have been campus cases where Facebook postings were restricted justifiably. Those cases, however, involved threats of harm attracting Criminal Code sanctions. In contrast, the Pridgen case involved no threats and there was no evidence of resultant "injury" before the discipline council. Certainly, the comments were unkind, but were they the kind of expression we want to restrict on a University campus?

The answer will be left to the Court on Wednesday when the freedom to express oneself on campus will be tested. We will await the decision to see if the Pridgen brothers receive a pass or a fail.

 

 

Part Two: Occupying Public Space

Yesterday, I outlined the tension between the City and the Occupy movement over the tent city erected in the City's public spaces. Although, municipal legislation prohibts the camp, it has, to this date, not been enforced. Why? Initially, no doubt, the thought was occupy Calgary would make their point and move on. No "strong arm of the law," means no trouble. Unfortunately, that tactic has proven to be wrong. The Occupy movement has no plans to move their campsite, even in the face of declining public support (petitions) and despite alternative offers of living space. It appears a Western style show-down is inevitable and the only question is how soon before the matter is before the Courts. 

What would happen if the matter did go before the Courts? Two cases, involving protest in two very different Canadian Cities, may help answer this question.

First we go to Ottawa. It is 1994 and a Peace Camp, to protest cruise missile testing, is erected on the lawn of the Parliament building. Indeed, the protesters had a presence, in one form or another, in front of Parliament since 1983. An attempt to dismantle the camp led to various court actions. At the heart of the debate was the expressive quality of the protest: if the Peace Camp attempted to convey or did convey a meaning, then, Weisfeld the leader of the protest, could argue an infringement of s. 2(b) of the Charter, freedom of expression.

The Federal Court of Appeal agreed with Weisfeld: the structure, and the presence of other accouterments of the protest (brochures, pamphlets, signs, and the like), indicated there was a meaning conveyed by the Peace Camp itself. However, as discussed yesterday, the decision does not rest on a violation. An infringement of a right still requires a further analysis based on s. 1 of the Charter. Is this violation justified in a free and democratic society? Enter, the government to establish that indeed, it is, or the legislation restricting the right is invalid. The end result in Ottawa was a save by the government. On the s.1 analysis the removal of Weisfeld was justified. Exit the Peace Camp.

Fast forward fifteen years to Vancouver where the Falun Gong erected banners and a "make-shift shelter" in front of the Chinese Consulate, contrary to a City By-law. The City sought an injunction to remove the protest, which was granted. The Falun Gong appealed to the British Columbia Court of Appeal.

Following Weisfeld, the Court agreed there was a violation of s.2(b) as the structures had expressive content being "part and parcel" of the Falun Gong protest. That is where the similarities end. The BCCA did not find the bylaw saved under the s.1 analysis. In the Court's view, the prohibition did not minimally impair the legitimate right to engage in political protest; a cherished Charter value residing at the very core of our democracy. In a word, the by-law was over broad and captured legitimate forms of expression.

After that Canada-wide tour, we are now back in Calgary. What conclusions can we draw based on these other cases? Clearly, the occupy protest has an expressive quality which is protected by s.2(b) of the Charter. However, whether the City ordinance will be a justifiable intrusion on that right is questionable and dependent on a number of factors, including the type of evidence the municipality will proffer to justify the legislation.

Whatever the outcome, this much is clear, the protesters are here to stay for the near future. Indeed, no Canadian City has successfully evicted the movement. In the end, when the dust is settled and the shoot-out is over, this gun-fight might just be a draw.

Freedom of Expression: Occupying Public Space Part One

For weeks now, we have been inundated with the details of the Occupy movement. We know where they are, what they are protesting about, and in this age of technology, we can watch them on our computers. We can also watch the City authorities walk in circles as they try to avoid clashing with the protesters. Some cities have not avoided harm: Occupy Oakland is a good example. But other cities, like Calgary, have tried to give the Occupy movement a wide berth. Unfortunately, patience is now wearing thin with the municipal authorities, the press, and the public, as Occupy Calgary refuse to leave the public space provided to them. This has all the ingredients of a classic Western show-down. 

On the one hand, we have the Charter right of s. 2(b) freedom of expression and on the other, municipal by-laws prohibiting camping in public parks. Up to now, the City has not enforced the by-law and allowed the Occupy movement to inhabit the public space (Canada Olympic Plaza in downtown Calgary). But as the authorities begin to consider ending the occupation, the show-down between the Charter and the City looms. 

This conundrum is, of course, typical Charter fodder: a fundamental freedom is violated and the government must establish the intrusion is justifiable in a free and democratic society under s. 1 of the Charter. In this, our Charter differs dramatically form the American Constitution as our rights are guaranteed yet limited under the Charter : no rights are absolute, yet the s.1 analysis is rigorous. The analysis requires the right to be minimally impaired by the legislation, to be proportionately restrained, and the limit must have a rational connection to the valid legislative purpose of the law. It is a balancing act, which may lead to legislative death but it can also lead to legislative discourse between the Courts and the government. This dialogue can assist in re-framing legislation, which fulfills its objective, but in a Charter friendly manner.

Thankfully, we Canadians are not protest-shy and there are legal precedents to help guide the Occupiers and the Municipal landlords. Join me in tomorrow's post, as I navigate us through the legal side of the issue by looking at Ottawa and Vancouver.