Looking For Some Light-Hearted Law School Advice? Here’s The Ultimate Answer Courtesy of Douglas Adams

For many, the first day of law school can be overwhelming as it presents a new and unknown pathway through, what first appears to be, a maze of information. Over time, notably by even the second semester, the maze looks more manageable and no longer intimidates. By second year, the 2L student becomes adept at navigating the corners and anticipating the blind spots.  In third year, the maze is organized and colour-coded and may even shine as the 3L starts storing knowledge and skills, almost squirrel-like, to be taken out, burnished and applied in the articling year. 

This all sounds fine and even slightly poetic but when starting law school, you don’t want to wait for the happy ending, you want answers. Now. Sadly, unlike Douglas Adams and his massively metallic supercomputing thinker, Deep Thought, in the Hitchhiker’s Guide to the Galaxy, the answer is not simply 42. However, maybe we can learn something from that flight of fancy and slightly zany book. Law school, indeed the practice of law, is an adventure and like Arthur Dent, who turns out to be the ultimate hitch-hiker, what you take with you on this wild ride is what matters. 

First, what you take with you is minimal. it is important to come as you are. Indeed, like Arthur Dent, a bathrobe, metaphorically, will do. There is no law school persona to put on. Law school can change you. It can develop a sense of self by challenging your preconceived notions and view of the world. To make the best of it, keep your mind open to new experiences and new ideas. Look at things differently. Remember law school is a safe place to try on theories and discover possibilities. You can and should be creative. Remember those pan-dimensional creatures, looking like white lab mice, in Hitchhikers’ Guide – the ones who created worlds? Yup, that can be you too. 

At the same time, you need to be prepared. Ford Prefect, can offer a role model for the new law student in that regard. A towel is not just “an absorbent cloth or paper for wiping or drying.” It is a multi-purpose catch-all kind of item or your “go to” when you need just a little extra support. It is not to be thrown away as in “throw in the towel.” Success may be a state of mind but it can be tangible too, even the Bugblatter Beast of Traal knows that! Whether your “towel” is person, place or thing, don’t leave home without it.

Speaking of not leaving home without it, as this is my blog, I am going to make a pitch for the course I teach and as such is at the centre of the law school universe, and that is Criminal Law. What notto leave home without in criminal law is the Criminal Code. Yes, the Criminal Codeis my Hitchhiker’s Guide to the Galaxy and rightly so. It is chock full of important information that no criminal lawyer can do without. In perusing its enumerable sections (there are 849, which does notadd up to 42, particularly when your realize there are 45 micro-sections between ss. 487 and 488), you will discover it is also in badly need of an update. Not just the Ford Prefect kind but substantive change. This is another important law school lesson that lawyers can and should be agents of change.

Another key to law school is collaboration but without forgoing individualization. That can sum up law school and even the practice of law. We are all in it together and we need to support and nurture each other. There is a collectiveness about law. However, we do not want group think like those waiting for the Great Prophet Zarquon at Milliways, the Restaurant At The End of the Universe. We want to interact with people and learn from others but in a manner that permits us to stay in our own space and our own thoughts where we critically analyze and reformulate our own ideas.

However, each one of us could use a confidante like Ford Prefect, who can be relied upon to occasionally say “Don’t Panic” when we mean to do just that. Or a Zaphod Beeblebrox, of the “two-heads are better than one” school of thought, who may have a huge ego but is all heart. Specifically, however, everyone needs a Trillian Astra; the brilliant colleague, who can figure things out even when you are still in Deep Space 9. It may be best to stay away from the Marvins, with their constant negativity and conspiracy theories, but then again, Marvin is loyal, waiting millions of years for his friends to pop up. 

Finally, remember to have fun. It may be that you don’t realize it at the time, but enjoyment can be had by reading a really good case. Similarily, a really good argument can be entertaining. But most importantly, helping others, which essentially is what the law is all about, can be joyful. Yes, law school is about your development as a lawyer and finding your voice or unique personal identity. But it is also about taking the time to look outside of yourself and look to others who will benefit from your future knowledge and expertise. And here perhaps is the answer to Life, the Universe and Everything: paying it forward by using your new found knowledge for good by helping those who are unable to help themselves by volunteering for probono activities, student legal services or a clinical project.  Law school may be a journey through the universe and beyond, but it is also a magnificent self-discovery. So long and see you in the classroom!

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.

 

 

Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and the Private Living Space

Sometimes law creeps into the most unlikely areas. I was sharing an article by Alex Bozikovic, the architecture critic in the Globe and Mail, with my son, who is studying for his Master’s Degree in Architecture. The article comments on a structure, a house, designed for a modern family, who requires multigenerational living space for aging parents. The plan of the house is at once typical, with kitchen, bedrooms and living space, but at the same time atypical as it accommodates “kitchens.” At the heart of the home is a lively transparent “public” space connecting the generations so, as suggested by the owner, to “allow us to be together when we wanted to be.” My son commented approvingly of, what he called, “the stratigraphy of semipublic and private” running throughout the design. What struck me about his remark and the design of the house was the acceptable integration and embracement of the public into the private. This caused me to pause and consider what this sentiment and the design behind it means for the future of the legal landscape.

In my criminal law focused mind, the immediate correlation this design concept has with law matters is in the area of section 8, search and seizure, which provides protection of privacy rights. As with all Charter rights, this protection is not absolute but is framed against the permissible intrusions into our private sphere for the purposes of law enforcement. To ensure this frame fits and sits properly within that privacy sphere, judicial oversight is required. The frame should sit lightly yet must cover enough of that sphere to ensure public safety is not compromised. Similarly, the greater good must not be advanced at the expense of who we are as a society. This delicate balancing is done through the judicial gatekeeper’s lens, which is carefully calibrated through case law with a “cut once measure twice” philosophy. Indeed, the recent decisions of Marakah and Jones, which I commented on in previous posts you can access here (Marakhah) and here (Jones), serve as an example of this balancing and re-balancing of privacy rights. The majority of the Supreme Court seem to be recognizing that privacy is not a static concept nor is it a contained one but is a changeable concept requiring the law to be as nuanced as those conceptions of privacy seem to be.

However, when I look at how architectural space is conceived, I wonder if our legal conception of space is in step with this living space formulation. In terms of Marakah and Jones, which only now recognizes the integration of technology into our “living” spaces and therefore changes our legal conception of those spaces, the concern becomes more fundamental: does the generation that fashioned “reasonable expectation of privacy” truly understand what this generation expects from their “reasonable expectation of privacy?” Public and private are not in opposition, but as vividly exemplified in the multigenerational design of the house, they live together harmoniously. But it goes further: public and private flow from one extreme to another continuously as the core meaning of these terms ebb and flow. When my son refers to the “semi-public” aspects of the house design, he isn’t just referencing the transparent walls which permits the public into that living space but is also referencing the semi-public inner space of the home, which fluxes between one generational family to another. Is our law that flexible? Can it understand the layering and flow of the new reality of space, which embraces public and private occurring within the same time frame and essentially creates a collapsing of time as space recombines these terms into one “space”?

The irony of this “new” conception of space is that it is not in fact new. In Ancient Rome and in Ancient Greece, the home or domus occupied by the upper class was both publicus, of the people, and privus, of the individual. The Ancient Roman domus, for example, was often sandwiched between commercial premises, which may be owned by the home owner as well. Additionally, the living space inside the domus was open to the public demands of the “master of the house” or the dominus, who would receive daily morning greetings (salutatio) from his clients (those whom he gave monetary and economic support to in exchange for their support often in the political arena). For more on this, start here. It is only as society expanded that our concepts of public and private separated. Now that technology has brought us in close contact again, it might be time to be open to a totally modern approach to the legally constructed frame of privacy rights.

Consistent with this view, is further commentary made in Bozikovic’s article calling for a renewed approach to land use laws, which traditionally precludes multigenerational home design. The article maintains that post World War Two, the vision of people living separate and apart but together in one community, was the essence of “tidy” modernity. But that vision is contrived as life cannot be contained in a pre-fabricated frame but must be permitted to bleed over the edges. The need to blur the lines between private and public may be contrary to the bright lines we are taught to expect from the law, but the alternative may be just as murky. Without a living and breathing law that is reflective of the generation who must live by it, we, sitting in the legal landscape, will be left behind.

This brings me to the final connection this article brought to mind, which is the future use of predictive analytics in legal decision-making. In this area the collision of private and public space is a matter of concern rather than a matter of celebration. If the Charter is designed to protect informational privacy as a matter of self-autonomy and dignity, then the prospect of our waking moments being mined for data in order to suggest what we may or may not do in the future is legally concerning. This concern becomes magnified when such big data is funnelled into a “black-box” algorithms which uses the information to deny people bail or sentence them to long terms of incarceration. This concern with transparency and accountability in the realm of analytics is now front and centre in the soon to be “live” European Union General Date Protection Regulation or GDPR. Although the legislation was approved in 2016, the rules contained therein will be enforced as of May 25, 2018. This regulation of data privacy couples with the AI Now Institute 2017 Report on the use of Artificial Intelligence or AI mechanisms through the lens of civil rights and liberties, bias and inclusion and ethics is a must read for those legal minds concerned with the computerized mind making choices and decisions that impact life, liberty and security of the person. In Canada, we need to be doing more open access discussion of these thorny issues which intersect law, technology and social science. For more information, I highly recommend a google search and follow on Twitter my colleague at the University of Calgary law, Emily Laidlaw, who does research and writing in the area of regulation of the internet. Her blog postings on the faculty’s ABlawg website can be found here. Finally, I add to this eclectic mix, a recent article based upon a conference in Barcelona on  Internet, Law & Politics entitled “Personal Data Protection as a Nonfunctional Requirement in the Smart City’s Development” by Lorenzo Dell Corte (Tilburg University & TU Delft), Bastiaan van Loenen (TU Delft), and Colette Cuijpers (Tilburg University) and the intersection between issues of privacy, regulation and the support for the Smart City integrating this new technology.

The kind of interdisciplinary work needed to truly unpack and understand these issues and the significance to the legal landscape is possible and needs to be done. In some ways the scholarly approach needed, involving law, architecture, technology and politics, is a micro-reflection of the “modern” spaces we will be living in and constructing in the near future. Considering that, it is time to broaden the legal landscape and allow the private and public to come in.

 

 

Kienapple to Jordan: Some Thoughts on How Cases Become Icons

It is mid-August and I am busily writing a paper on W(D). Instantly, all criminal lawyers nod their head. Just the evocation of those initials recalls the penultimate paragraph of Justice Cory where he sets out the “ideally, appropriate instructions on the issue of credibility” and imprints, in words and in precedent, the trial judge’s obligation to assess credibility as an aspect of the presumption of innocence and consistent with the burden and standard of proof in a criminal case. Unsurprisingly, this “idealism” became “the law,” so to speak, as judge’s have taken Justice Cory’s words to heart resulting in over 9000 case citations (CanLii has 8590 mentions to date, while Westlaw finds 9, 133) of W(D) since its release in 1991. The case initials, W(D), have essentially become a constant reminder of the duty of a trial judge in a criminal trial. This transformation from case to icon, is not just about words and precedent, but is about something much more profound. Those two initials, like the madeleine savoured by Marcel Proust in Remembrance of Things Past, conjures up images of the “ideal” democratic society imbued with our principles of fundamental justice, of the impartial and independent trial judge as the gatekeeper extraordinaire, and as a symbol of our “community sense of justice.” Now that’s a heavy burden for one case! Yet, I would suggest, that W(D) does not stand alone in this iconography or more accurately, semiotic state (Umberto Eco, A Theory of Semiotics). Why or how a case attains this status is, I think, an interesting exercise for us to enter into as a different way to understand the development of law and precedent.

First, an admission. I came to this idea from some non-legal reading. Martin Kemp, an art historian and Leonardo Da Vinci “specialist,” not the Martin Kemp who was the bassist for Spandau Ballet, is an engaging and fascinating writer. His authorship glides over the orthodox as in The Oxford History of Western Art, but also wanders into the fringes in The Science of Art: Optical Themes in Western Art from Brunelleschi to Seaurat. His book, Christ to Coke: How Image Becomes Icon, runs through various obvious choices in this image/icon transmutation such as the Coke bottle and E = mc2 but also some non-traditional icons arising from photographic imagery such as the Pulitzer Prize winning photo by Nick Ut of the Vietnamese children running from the napalm blast on June 8, 1972. Although a reading and viewing of this book reveals the many and varied pathways to “stardom” or icon status, it also highlights the element these images share: the ubiquitous-ness of the image in the public psyche. As with Proust’s madeleine, the visual becomes a short hand for an avalanche of memories, facts and emotions. This is one time when a popularity contest works.

So how does all of this translate in the dicta of case law? Those cases which, at the same time are more than their name whilst being represented by just their name, become a short hand or an abbreviation for the case itself. I say, “for the case itself” as these cases go beyond the traditional ratio decidendi of the case and can encapsulate the implementation of that rule of law such as an in-court procedure employed to engage the issues raised in the case as in the Corbett application or as in W(D) an instruction or even more evocative, as a warning such as in Vetrovec. Highest status goes to those cases which become “grammarized” as verbs. Thus, a conviction can be “Kienappled” as referenced by imminent criminal defence lawyer, Alan Gold, at page 302 of his commentary "Appeal Courts - Jurisdiction" in the 1990, Volume 32 Criminal Law Quarterly. Sometimes, grammar changes – instead of a case being “Askoved” (see Alison Hatch Cunningham, North of the 49th Parallel: The Criminal Justice System of Canada, 13 Crim. Just. 21, 27 (1998)), we now, a year after its release, speak of a case being “Jordaned” (see Kelly Egan’s article online from April 28, 2017, Justice ministers focus on five areas to cut court delays). This grammatical construction is also akin to the vocative case in Latin where language directly “calls out” a subject of a sentence, usually done with a judicious use of an exclamation mark. Finally, the “iconizing” of a decision can make what is inanimate an animated object such as the “KGB statement.”

From case to icon means that the dicta or words found in the case are compressed or squeezed into the case name and become part of the verbal lawyerly language we employ in court, in discussions within our profession, and even in the advice we give our clients. Why these particular cases have such impact and such iconic status is a difficult question to answer but may be a result of their instrumentality or even more controversially, their weaponization, as cases which lead to determinative action such as in the Corbett application or as in the Askoved case. Their staying power may also rest on their dual status as used in both the bounded space of the courtroom and the boundless space of social media. As mentioned earlier, icon status also suggests a case meaning which transcends the obvious ratio and implies meaning which touches the inner core of societal ethos.

In a broader view, this inclination for iconography is also about the significance of naming in our society or more accurately our penchant for labelling, categorizing and listing. It leads us to ponder on the purpose of this short hand – are we cutting away too deeply by employing this “sound bite” approach or are we making law more accessible by promoting seminal and pivotal cases into everyday nomenclature? This concept of legal iconography also leads to further speculation on the role of the visual in law and one of my interests in visual jurisprudence as studied by the legal visual theorists, Peter Goodrich at Cardoza School of Law and Richard Sherwin, Director of the Visual Persuasion Project at New York Law School. It finally leads us to even broader considerations of access to justice and the kind of “human-centered design” we must be open to in the next generation of law iconography.  

W(D) is a case but it is more than that but what more it is, I am determined to find out!

 

In Praise of the Passionate Lawyer

Recently, Rex Murphy eloquently reminded us of the lawyer’s role in the justice system. He did this in support of Marie Henein's CBC interview. An interview she did not give to defend the profession but to remind us of how it works. To remind us, as Rex Murphy stresses, of the core values lawyers protect and engage in: liberty, fairness, and justice through the lens of the presumption of innocence. Some of these values may seem trite or overdrawn but they are not. They are at the very heart of our society as they define who we are and who we are not. For lawyers, who practice in this milieu, these values underscore and frame everything we do. Admittedly, these values, or objectives, are difficult to attain.  Clarence Darrow, who epitomizes these values, once said: “Justice has nothing to do with what goes on in a courtroom; Justice is what comes out of a courtroom.” Thus, these values can be elusive, can be difficult to attain, and can question your belief in them. Perhaps this is why we cherish them even more.

There is one comment made by Rex Murphy I do question. He describes the lawyer’s role as dispassionate. This is not so. To be dispassionate suggests an observer’s role or even an impartial one. Lawyers are not observers: lawyers are in it and they are in it zealously. Perhaps he means lawyers cannot get lost in the emotional content of the case for fear of losing their perspective. It is this perspective, as a person learned in the law, which is of utmost assistance to the client. Nevertheless, lawyers are in the business of passion: Whether it is around us as part of the case or whether we passionately advocate for our client. It is this passion, which connects us, as lawyers and as members of society, to those core values we hold so dear. Passion and compassion is our stock and trade – and so I praise it.

Riesberry – Does It Get Past The Post?

Fraud has been around for centuries. So has the concept of cheating at play. In R v Riesberry, the Supreme Court of Canada attempts to put 2 and 2 together, so to speak (albeit randomly!), to clarify the meaning of “game” under s. 209, which criminalizes “every one who, with intent to defraud any person, cheats while playing a game or in holding stakes for a game or in betting.” Game is defined under s.197 as a “game of chance or mixed chance and skill.” What was at issue in Riesberry was the favourite Ontario pastime of horse racing and Mr. Riesberry’s penchant for winning. In this case, winning by drugging two horses. Although the Court defined “game” as including a horse race, in my view the more interesting aspect of the decision is the Court’s comments on the fraud charges and what I will suggest is a failure to fully integrate criminal law principles.

Justice Cromwell, speaking for the unanimous court (although the case was not heard by the full panel of judges but of a smaller panel of 7), essentially relied upon previous SCC decisions on the actus reus requirements of fraud, specifically Olan (1978) and Theroux (1993) and the companion case Zlatic. The actus reus for fraud is comprised of two parts as per section 380, an act of “deceit, falsehood, and other fraudulent means” coupled with, according to Theroux and Zlatic, a deprivation “caused by the prohibited act,” which may result in an actual loss or a risk to the “pecuniary interest” of the victim. In the earlier decision Olan, the court expanded on the phrase “other fraudulent means” by defining it as any act “which can properly be stigmatized as dishonest.”

Before we move onto Justice Cromwell’s position, let’s unpack the significance and the impact of the Olan and Theroux/Zlatic decisions.

First, Olan, an Ontario case about a substantial fraud involving a convoluted fact scenario of companies within companies. However, as Justice Dickson (pre-Chief Justice days), on behalf of the full Court, astutely reminds the reader “One of the dangers in this case is the risk of being overwhelmed by factual minutiae. Superficially, the facts are complicated. Stripped of unessentials, it is clear what took place.” Of note is the manner in which this decision is structured, with a full recitation of the relevant law before the facts of the case are outlined. Clearly, according to Justice Dickson, the facts are not the issue as the lower court should have realized, this is an “easy” case of fraud. Hence the broad definition of “other fraudulent means,” which nicely concurs with Lord Diplock’s assessment in the House of Lords Scott decision, three years earlier. In Scott, Lord Diplock gave a generous definition of the phrase by suggesting “other fraudulent means” can involve “dishonesty of any kind.” Justice Dickson, approved of this passage and Justice Cartwright’s earlier 1963 decision in Cox and Paton to arrive at the now oft quoted meaning of the phrase as found in s. 380 as “not in the nature of a falsehood or a deceit” but acts that can “encompass all other means which can properly be stigmatized as dishonest.”

Although Justice Dickson also discussed the further actus reus requirements of deprivation, this aspect was thoroughly canvassed in the Theroux/Zlatic cases. Theroux is one of those great cases indicative of the unsettled Court of the early 1990s. Rendered in the 1993 when the Court grappled with the meaning and content of mens rea in light of the subjectivity principle and the objectivity “creep” from the driving cases of Hundal and the manslaughter decision in Creighton.  This was a time when the Court’s decisions were visceral and driven by ideology, when members of the Court aligned themselves both with other members of the Court and against other members of the Court. To prove my point just read the following SCC cases rendered that year: Cooper on the “slightly relaxed” intention found under s. 229(a)(ii) murder,  as previously mentioned Hundal and Creighton, and three further cases on the presence of objective criminal liability in Naglik, Gosset, and Finlay. Not only was mens rea on the Court’s mind but also an expansion of evidential and procedural rules as in KGB, Plant, Wiley, Grant, Levogiannis and Osolin as well as the meaning of s. 7 of the Charter as in Rodriguez and Morgentaler.

It is in this context that Theroux was decided with 3 decisions which concurred in the result:  from Justice Sopinka (with Lamer, CJ), Justice McLachlin’s majority decision (with LaForest, Gonthier, and Cory JJ.) and Justice L’Heureux-Dube’s own decision. The fragmented decision is connected to the companion Zlatic case where Justice Sopinka and the Chief Justice dissented as stated in the opening parargraphs of Theroux, because “there are several issues in my colleague's analysis of the law of fraud with which I have difficulty.” One of these “issues” involve the tension between objective and subjective mens rea and the Court’s inability to envision how the traditional criminal law world would look when that Pandora’s box containing an objective form of liability is opened. We are still feeling the effects of this conundrum today, which deserves another blog posting all together. In any event, Theroux is typically now quoted for Justice McLachlin’s (as she then was) clarification that mens rea signifies the guilty mind and does not encompass all of the mental element requirements of an offence as the actus reus too has a mental aspect requiring the prohibited act to be a voluntary act “of a willing mind at liberty to make a definite choice or decision” (See Taschereau J. in the 1962 King case). For our purposes, however, Justice McLachlin reiterated fraud’s actus reus as described in Olan with a reminder that Olan was a departure from precedent as it marked a broadening of fraud by removing the requirement for deceit and replacing it with a “general concept of dishonesty” to be objectively determined and by permitting deprivation to include a risk or “imperilling” of economic interest.

Viewing Riesberry in this context, we should not be surprised that the Court unanimously accepted this precedent and found the act of “cheating” to be an act worthy of criminal sanction. However, what should surprise us about the decision is how the Court treated the required causal connection between the dishonest act and the deprivation. Justice Cromwell easily made this crucial connection through the time-honoured “but for” test, wherein the trier asks “but for” the accused’s actions would this consequence have occurred or, as in this case, “it created the risk of betting on a horse that, but for Mr. Riesberry’s dishonest acts, might have won and led to a payout to the persons betting on that horse.” This “risk of prejudice to the economic interests of bettors” provided a direct causal link required to prove the actus reus of the fraud.

Although to Justice Cromwell this linkage was elementary, the decision on this issue is disquieting. Causality in criminal law has received much attention by the Supreme Court of Canada.  It has been a particularly difficult issue in cases where there may be multiple causes or, as in Mr. Riesberry’s case, there is a temporal issue. Causation is also a civil law concept, arising in tort cases. Like the tension between subjective liability, a traditional criminal law precept, and objective liability coming to criminal law from the regulatory or civil arena, the concept of “criminal” causality has been a long-standing subject in criminal cases.  

The question of factual causation or the “but for” test referred to and applied by Justice Cromwell has indeed been straight forward and easy to apply. But the issue of legal causation, the concept of culpability and where the criminal law should draw the line has been less easily determined. Legal causation sees the “but for” but wants to know to what degree is the accused the cause and is it sufficient to attract the full force of the criminal law. This was the issue in Harbottle, where the degree of causation required in a first-degree murder charge was considered, and interestingly enough was decided in 1993 when Theroux was considered. It was also the issue in Nette where second-degree murder was considered and the entire concept of criminal causation was considered. To attract criminal culpability not only must the “but for” test be fulfilled but the actions of the accused must also be a “significant contributing cause” of the consequence. Since Nette, this legal test has been applied such as in the recent case of Maybin involving a manslaughter. Not only did Justice Cromwell not enter into this legal analysis, he did not even mention its existence. Considering fraud is akin to theft in that it is a “true crime,” which attracts stigma upon conviction, the legal concept of causation should have been considered even on these facts.

Had it been considered, the final analysis may very well have been the same but the case, left as it is, seems unfinished. Without getting into it, another area of disconnect in this decision is with the concept of deprivation as a “risk” as opposed to an actuality. This position seems consistent with previous decisions of the court such as Mabior and Hutchinson as it related to fraud vitiating consent under s. 265(3). Again, no analytical connection is made here. This also seems decidedly “unmodern.”

As early as 1990 (see Starr v Houlden), the Supreme Court of Canada had begun to embrace the “holistic approach” to law, refusing to be pigeon-holed by the past (specifically see paragraph 16 of the 2011 Sarrazin case and approval of this concept as recommended by Moldaver, J.A., as a then dissenting voice in the Ontario Court of Appeal decision). This recognition and desire for integration has also seen traction in the broader societal context. Riesberry, by failing to integrate principles and make these holistic connections, leaves us to consider the pieces of the puzzle instead of the picture as a whole.

 

 

A Fresh Look at Fearon: How Language Informs The Law

A case commentary typically expounds on the legal doctrinal issues raised by the decision and rarely looks at the judgment as a literary document. The final full SCC judgment of the year, Fearon, has been much discussed on the doctrinal level but as a final 2014 legal send-off, a different kind of case commentary is in order.

On a literary linguistic level, the Fearon case is a fascinating example of how the majority and the dissent employ differing or shall we say dueling word usage. The choice of terminology is not only intended to signal a very particular perspective but firmly connects the decisions to doctrinal perspectives emanating from prior cases. This continuity with the past provides precedential value to the two decisions and challenges us, as readers, to determine which decision is really the right one. Hand in hand with this analysis, is the revealing metaphors abounding in these decisions.

Let’s first look at the majority decision written by Justice Cromwell. The first term used in this decision is the phrase “truly incidental” as in the police generally (note that the general versus the specific is also underlined in the majority decision) have a common law power to search a cell phone incident to arrest if the search is truly incidental to the arrest. Not just incidental but truly incidental. In the judgment there are 22 incidents of this phrase, all in the majority decision! Yet, in terms of previous SCC cases, the term appears only in the Caslake decision, which found an “inventory” search of an accused’s vehicle, hours after arrest, invalid as such a search was not “truly” incidental. For a search to be truly incidental, there must be a “valid purpose” connected to the arrest. By the way, the term “valid purpose” pops up 5 times in the majority judgment.

Caslake is referred to 15 times in the judgment, with 12 references in the majority and 3 in the dissent. The dissent refers to the generalities of Caslake - as to when a warrantless search may be appropriate - and does not mimic the s. 8 language as the majority does. Although “truly incidental” is found in only 2 SCC criminal cases, the term is used in lower court nomenclature. In Ontario, including Fearon, there are about 46 cases using the term but they all occur after 1998, the year the SCC decision in Caslake was released. Although the Manitoba Court of Appeal decided the lower court decision in 1995, Caslake, was not, as yet, part of the s.8 vocabulary.

Before we move onto other terminology, note that the phrase “strictly incidental” is used only once as is the phrase “properly incidental.” According to the Merriam-Webster Dictionary, “truly” is defined, for Fearon purposes, as “without question or doubt” and “strictly” means “rigorously conforming to principle or a norm or condition.”

The word “prompt” is used 31 times, with only two of those occasions by the dissent and for very different reasons. The majority uses the word “prompt,” defined as “performed readily or immediately” to provide the underlying reason for a search incident to arrest as the immediate need to investigate the offence by gathering crucial evidence.  It is the timeliness and the speed with which the police must pursue this investigation, which underlies the majority decision. Conversely, one of the times the dissent uses “promptly” is in reference to Justice Cromwell’s majority decision and the other occurrence is to highlight how quickly the police, in the case, applied for a warrant when case law suggested they needed to do so. Thus the term “immediate” or “immediately” is used often throughout as well.

Another phrase used liberally throughout the majority decision is the phrase “law enforcement objectives,” which is used 26 times, 4 of which is in the dissent. Again, 3 of those 4 occasions in the dissent are direct references to Justice Cromwell’s majority decision. This term is used in 4 previous SCC cases, 3 of which are search and seizure cases being the Law case from 2002 – privacy interest in stolen property; Chehil – sniffer dog case involving the search of vehicles from 2013; and the Stillman case of 1997 the case on the seizure of bodily samples and discussed at length in Fearon. The term “law enforcement” is further described in the majority judgment as being “important” 12 times in the majority.

The word use is much different in the dissent. Indeed, the atmosphere of the two decisions differs dramatically. Justice Cromwell’s decision has a law and order aspect reminding us of the need for investigatory powers to enhance and uphold the rule of law. As will be discussed below, the choice of words highlights this theme through the use of metaphors involving balancing and weighing and metaphors involving the limitation of space and time.

In contrast, the dissent is a decision marked by Charter values and modernity – it reads like a law school paper on constitutional rights and freedoms, inviting the reader to muse on the lofty ideals crucial to a free and democratic society. Indeed that term, “free and democratic society” appears three times in the dissent (plus “democracy” appearing once) and appears there only with no such Charter values relied upon in the majority, other than the balancing of rights required under s.8.

Other Charter values involving individual rights and freedoms are also relied upon in the dissent decision but it is the word “privacy” that trumps them all. This word is used 123 times in the decision with the word used 37 times in the majority but a whopping 86 times in the dissent. Certainly “privacy” is a word that at some point must be used by the majority when the decision speaks to the balancing of rights under s. 8 but more telling is the use of the word “private” in the decision. It occurs once in the majority but only in reference to strip searches and “private areas.” In the dissent however “private” occurs 27 times to describe “private digital devices,” “private lives,” and the “private sphere,” among some of the uses of the term. Again, this term is signaling the core of the dissent’s decision that privacy is at stake in the case and therefore it is privacy and the living of the “good” life protected by Charter values which are be the controlling issues in the case.

Not only are certain terms and phrases utilized to bolster each of these decisions but the decisions use the literary device of metaphor to solidify and justify the decisions as well. Thus, both the majority and dissent use balancing and weighing metaphors (25 times) to support different outcomes. The majority relies heavily on space metaphors and the desire to delineate the space wherein the rule of law must reside requiring the use of the words “scope” and “parameters” and “limits” and “points” by the majority. The majority also uses work or structure metaphors, using the term “framework,” “task,” and “link.” The dissent uses social words connoting society and community such as “lives,” “relationships” and “intimate” with a liberal use of emotive terms such as “likes and dislikes, our fears, hopes, opinions, beliefs and ideas.” The metaphor of “big brother” also looms large as a pointed reference to Orwell’s 1984 figures in the dissent. In contrast the concept of freedom and the ability to choose one’s own path is highlighted.

There are many other nuggets in this judgment worth discussing as a counter-point or enhancement of a pure doctrinal study of the case. It will indeed be interesting if any future SCC cases utilize this stark linguistic contrast or if it is merely a result of the impassioned differences on the SCC on this particular issue, which determined choice of language. 

I must at this point acknowledge Professor Jonnette Watson-Hamilton, for whom I did some research on metaphors and language many years ago while pursuing my Masters at the University of Calgary, Faculty of Law. She introduced me to the critical theories of language involving the use of metaphors in legal decision-making – a “truly” illuminating experience! Review her articles written to access her publications involving language and metaphor.

For further information on this, start with the seminal works by cognitive linguist George Lakoff, particularly Metaphors We Live By, which Lakoff wrote with Mark Johnson. There are now multiple scholarly articles involving metaphors and linguistic techniques in legal discourse. The starting point for this is found in the articles written by Robert Cover, a fantastic legal scholar, sadly now deceased. Read his two seminal articles entitled Violence and the Word and Nomos and Narrative. I have also written a previous blog on Cover called Is Violence The Word? Additionally, I have written two previous blogs using metaphors as part of the legal analysis in Impression and Claim: Are They Both The Same? and in Blogs As Graffiti.

 

My #clawbies2014 Nomination 2014: CanLII Connects

It is Clawbie or Canadian Law Blog Awards time again and this year I am nominating CanLII Connects. Now before I justify my choice, I want to make it perfectly clear that I am a proud contributor to CanLII Connects but this is NOT the reason why I strongly believe CanLII Connects should be recognized. Instead, it is the concept, the very idea of CanLII Connects that drives my nomination. It is the brainchild or should I say web-baby of Colin Lachance, who had a vision of an open web-based co-operative cyberspace for legal thought and innovation; a safe space in which lawyers could exchange ideas freely and without prejudice. A space unbounded by the four walls of an office, a boardroom or a courtroom where lawyers could share knowledge as well as their passion for law across Canada and the global community.

And so at the close of 2014, I tip my blog to CanLII Connects and all those bloggers who post insightful commentaries and help me and many thousands of others to understand that the rule of law is not just a compendium of static principles but is rather something more organic as they derive a deep richness from the multi-faceted perspectives of CanLII Connects.

 Bravo to CanLII and to the dedicated CanLII Connects Community!

A Short Note On Why Behavioural Economics Should Matter to Criminal Lawyers

In some sense this blog posting is both a book review and a legal analysis. It is a book review as this blog arises from my reading of the Daniel Kahneman’s book entitled Thinking, Fast and Slow. It is also a legal analysis as the ideas and theories arising from Kahneman’s Nobel Prize winning research form the basis of my suggestion that it is time to critique some traditional criminal law principles. In the end what this blog is about is connections and how we, as in the legal profession “we,” must be cognizant of new and innovative developments in other subject areas, in this case social sciences, in order to craft new and innovative arguments. New arguments can lead to new law and this book might just be the catalyst for this kind of change.

I will not belabour the specifics of the book nor will I give a deep analysis of it. That kind of discussion should be done in a formal setting as in a well-reasoned journal article but I will leave that to a later opportunity. Essentially, Kahneman and his research partner did a series of break through behavioural testing which turned the field of economics on its head.  The two researchers, as psychologists, approached the construction of the rational Economic or Econ person in a totally different manner than the economists did previously. When I say previously, I mean the theories had been in place and used for decades. This would be, in Kahneman’s view, a good example of theory-induced blindness. In any event, Kahneman showed that the basic Econ, which was a staple figure in economic theory, was not in fact rational and at times, even down right irrational. Well, not really irrational, as the research showed there were a pattern to the behavioural responses but not the expected pattern of the Econ. Instead the Econ was really a Human – someone who made choices, often seemingly economically irrational choices, not based on the utility theory favoured by the economists but based on other more ephemeral reasons including fear, loss, and bias. What caused such a stir in the field of economics was that Kahneman and his partner could actually prove, through research data, that this was so. The rational Econ was a false promise and not the stuff upon which sound economic theory should be based. Additionally, what economic theory needed were better reference points – starting points from which the Human could become a better decision maker. In other words, the Econ was not working with a full deck or full information upon which these economic decisions or even life changing decisions should be made.

There is, of course, more to the book and the prize winning economic theory, called prospect theory, which arises out of Kahneman’s research. For instance, the first part of the book dwells on the cognitive theories of how and why we make decisions or choices. According to Kahneman we have an intuitive System 1, which thinks fast enabling us to make split second decisions and gives us speedy answers to questions like one plus one or the colour of the sky. We also have a slower or lazier System 2, which kicks in when we need to give a decision some thought such as the answer to 124 times 26 or remembering the lines of a poem we may have learned when we were young. These systems do not work totally independently. Although being aware of these two systems we can improve the correctness of our outcomes by slowing down our thought processes to allow System 2 to take over so we can improve our chances of “getting it right,” mostly we reflexively defer to our System 1, particularly when faced with exigent circumstances. This often produces acceptable outcomes as our System 1 works so fast as it is primed with crucial experiential information. However, these stored memory fragments are sometimes incorrect leading us to make bad choices and erroneous decisions. In those instances, we have no real choice but to simply go along for the ride.

So how does this lead to a critical analysis of legal principles? By extrapolating and applying these research based theories to the underlying reason for certain legal constructs, we can argue that certain unquestioned legal principles used in criminal law such as the “reasonable person” standard and the well-accepted premise that we intend the natural consequences of our actions (see my blog on the Walle case), may in fact no longer be valid. It is time, therefore, for the legal profession to break out of our theory-induced blindness and integrate, in the appropriate case, theories from other areas of the science and humanities to ensure that the law is a real reflection of society. Now, doesn’t that sound reasonable?

Ideablawg’s Weekly Connections: Inside The Courtroom

Although criminal lawyers have an intimate knowledge of the courtrooms in which they practice, what do we really know about courtrooms elsewhere? We assume other courts would be all fairly similar but having practiced in Ontario and appeared in a myriad of courtrooms from Toronto, to Windsor, to Lindsay, and beyond, I can say courtrooms do differ. But how do courtrooms in other jurisdictions look? What about other countries? What goes on in them anyway? Well, thanks to the Internet, there are options and tools to help anyone peek into the inside of a court and to see, and perhaps understand more clearly, what exactly is going on inside.

1.   The International Criminal Court (ICC): I have written about the International Criminal Court in previous blogs, most notably here. This past week, the ICC trial chamber has been hearing the Ruto and Sang prosecution. William Samoei Ruto, the Deputy President of the Republic of Kenya and Joshua Arap Sang, head of operations of Kalenjin language radio station KASS FM in Nairobi, are charged with crimes against humanity under the Rome Statute. Ruto and Sang are being tried for their role in the ethnic violence ocurring after the 2007-2008 Kenyan elections. The ICC distributes a video summary of weekly cases in their video series called “In The Courtroom.” The Ruto and Sang matter is this week’s installment showing the courtroom and the various members of the court as well as excerpts of the testimony of a witness, whose identity is carefully protected through use of a pseudonym, facial pixilation, and voice distortion. After the hearing summary, there is a short explanation about the court process including the possible prison terms and where such a sentence would be served. Not only does this video give us an opportunity to experience a totally different kind of criminal court but it gives us a better appreciation of the difficulties surrounding the prosecution and defence of international crimes.

2.   You Be The Judge: This is a great online interactive tool created by the Ministry of Justice in the UK to explain how a judge sentences an accused. The website allows the viewer to observe various criminal cases and to make interactive decisions, based on various factors, to determine the length of incarceration. The viewer/player experiences the courtroom setting and benefits from a number of “asides” from the Bench explaining the process. Through polls taken during the hearing, the viewer can see, in a risk-free environment, if their decisions are consistent with other viewers and with the sentencing judge. I have used this website in my undergraduate criminal justice classes to show how a sentencing judge uses his or her discretion with the rule of law to come to an appropriate and fit sentence.

3.   The Model Court: In a previous blog, I wrote a short piece on the intersection of law and art based on readings from a group of essays in Thousand Eyes: Media Technology, Law and Aesthetics published by Sternberg Press. In the journal are photographs of the “Model Court,” which is a collaborative research project involving a group of artists, Sidsel Meineche Hansen, Lawrence Abu Hamdan (who does some fascinating aural work in the area of the political role of voice in law called Aural Contract), Oliver Rees (he’s so supercool I can’t even describe what he does, so just check out his website) and architect, Lorenzo Pezzani. The project “uses the structure and technologies of the courtroom to interrogate the signifying and controlling role architecture plays in contemporary art and society.” By offering a “model court” as a container of ideas of “jurisprudence, evidence, and the hidden apparatuses that become the essential constituents of tribunals,” the project extends us beyond the courtroom into a representative space, which pushes the traditional four-wall envelope to give us an alternative view of justice. 

Ideablawg’s Weekly Connections: International Women’s Day and Legal Inspiration From Abella, Arbour and Smith

Today is International Women’s Day, a day to celebrate how far women we have come in terms of gender equality but also a day of hope as we reflect on what still needs to be done. We are not quite there yet and certainly in many countries across the globe not there at all. There are so many inspiring women of all ages but I devote this week’s connections to three jurists women who give me legal inspiration.

  1. There are of course numerous Canadian women in the law profession who provide inspiration to us all. Check out the page at U of T Law School dedicated to some of these legally minded trailblazers. Out of the list, I find inspiration from Madame Justice Rosalie Abella, now sitting on the Supreme Court of Canada. Not only she is an exceptional jurist and dedicated human rights advocate (see the blog I wrote on her dissent in the Court of Appeal on Crown misconduct) but her life story is also an inspiration. A child of the Holocaust, she was born in a Displaced Persons’ Camp in Stuttgart, Germany where her father, a lawyer, helped advocate for the other displaced persons’ in the camp. I have had the opportunity to appear in front of Justice Abella when she was first appointed to the Ontario Court of Appeal and argued a sentence appeal before her in the first week she was sitting on an Appeal panel. Although it was a straightforward appeal, Justice Abella showed her mettle and her mind by dissenting in the case. This was not a controversial case at all and indeed the dissent, legally, did not matter but what did matter was the humanity and compassion she showed by doing it.
  2. Another Justice of the Supreme Court of Canada, albeit a former Justice, is Louise Arbour. Most people recognize her as the Justice who stepped down from the SCC to become the Chief Prosecutor for the International Criminal Tribunals investigating the war crimes of the former Yugoslavia and Rwanda. She then became High Commissioner for Human Rights in 2004 and retired from that position in 2008. Although her tenure in the international scene was not without controversy, she is an inspiration for her tenacity and her deeply held beliefs in international human rights. She now heads the International Crisis Group where she speaks out against any oppressive regime and even western powers like Canada, who, in her view, are not doing enough to advance human rights internationally. Again, I had the pleasure of appearing before Justice Arbour many times when she sat in the Ontario Court of Appeal. Her expansive knowledge of criminal law made it a pleasure to argue a criminal appeal before her. However, I believe it was when she took on the unenviable task of inquiring into the Prison for Women at the Kingston Penitentiary in 1995 that I truly found her most inspiring. Her report is a shocking read but an important one for prisoner rights and women rights. She truly made a difference. After her report, P for W was disbanded.
  3. For more inspiration, I look no further than the trial court. Day in and day out trial judges sift through the nuts and bolts of legalese and listen to the narratives placed before them. Sure they determine cases by applying legal principles but the very best trial judges do so by hearing the stories of the people affected. This is an important part of access to justice – to listen and to give those before them a fair and just hearing.  When I was a law student at Osgoode Hall Law School, I was lucky enough to win the lottery for the incomparable Criminal Law Intensive Program run by the then criminal law professor Alan Grant. It was an amazing program where we students were seconded with lawyers and judges to shadow their daily work lives and to take in their unique perspective on the criminal justice system. I was seconded with the then District Court Judges and among the group I had the honour to work with was the then the Honourable Judge Heather Smith. Of course now she is Chief Justice of the Ontario Superior Court of Justice and the first woman to hold that position. There are no words to express how impressed I was with her abilities and her commitment to the criminal justice system.  As a woman and as a soon to be articling student, she inspired me to treat the law and those individuals in the law, be it lawyers or clients, with respect. In my mind she was the epitome of a trial judge – competent, thoughtful, compassionate and learned in the law - and an inspiration for a young female barrister ready to take on the world.

Ideablawg's Weekly Connections: From Pronouncing to Pronouncements

This week I looked at the dual nature of the word “pronounce.” Although in both meanings to “pronounce” is a speech word, the effects of the meanings are very different.

1. Pronounce: In this meaning – to make a sound of a word or letter with your voice – is something we do everyday. Even in this digital age, the speech act is integral part of being human. However, how we pronounce our words has developed over time and the dialect or way in which we pronounce a word has changed radically in the English language. For example, every teen is required to read Shakespeare, typically Romeo and Juliet, Macbeth, and Hamlet, but inevitably with present-day pronunciation. True we recognize the words and the grammatical structure differs from ours but few of us consider that pronunciation in the 1500s was quite different. Thanks to the linguist, David Crystal, Pronouncing Shakespeare, is possible. Listen here for the correct pronunciation (i.e. as Shakespeare would have pronounced them) in Romeo and Juliet. To follow along, the text is here. Just to connect Shakespeare to law, I remind everyone of the famous passage in Act 4, Scene 2 of Henry the IV, wherein Dick states "the first thing we do, let's kill all the lawyers," which presages the disintegration of society and the beginning of anarchy.

2. Pronounce: Another aspect of pronouncing a word is to speak the word properly. In law, Latin words and phrases are common. Indeed, two such phrases come immediately to mind when I teach criminal law. The first is actus non facit reum nisi mens sit rea, which means there is no guilty act without a guilty mind and from where the terms mens rea and actus reus, the essential elements of a crime, come. As an aside mens rea and actus reus are never used in the Criminal Code of Canada. The second Latin maxim is the causation concept of de minimis non curat lex or the law does not concern itself with trifles. Although the Latin language is liberally sprinkled throughout legal textbooks and case law, Latin is not a required course in law schools. But thankfully there are opportunities for self-study. Just buy Wheelock’s Latin and go online for the correct pronunciations. Your law professor will thank you for it.

3. Pronounce: The second meaning of the word is to declare or announce something formally or officially. A Judge, when he or she renders a decision, is making a pronouncement. How the Judge or trier of fact comes to a decision is a matter of much academic speculation and argument. Critical legal theorists spend much of their academic career trying to articulate this seemingly inarticulable process. Is decision making predictable? Is it based on preconceived views of the trier of fact? Is it random or guided by an innate sense of justice? These heady questions are still being deconstructed in legal jurisprudence. As a primer, read Benjamin Cardoza on The Nature of the Judicial Process for an enlightened view on the subject.

4. Hazmat Modine: to end this week’s connections, I decided to move completely away from my theme and leave you with some excellent music and an example of how our world seamlessly mixes all genres to produce new sound – kind of like how our pronunciations have changed over time. Enjoy!

 

 

 

Section 4(3) Possession – An Example of Judge-Made Law: Episode Six of the Ideablawg Podcasts on the Criminal Code of Canada

I ended last episode with a bit of a teaser: I said in this episode we would explore the old adage: possession is nine-tenths of the law. Well, sorry to say, this is not the law, particularly in the criminal law meaning of “possession.” What we will explore in this podcast is what section 4(3) tells us about the meaning of “possession” and what it does not.

Once again, we will encounter the difficulty of using the Criminal Code as an inclusive repository of criminal offences. According to section 9 of the Code, which we will be discussing on these podcasts very soon, all crimes in Canada are in the Code, except for the common law crime of contempt of court. However, although all crimes are found under a particular section of the Code, on the plain reading of a particular section one cannot be certain of the requisite elements. Sometimes, we need to look elsewhere in the Code for further illumination, such as s. 2 definitions or the definitions found under the relevant Part.

More often, we need to look at case law for the answer. This reality suggests the concept in s.19 of the Code, that ignorance of the law is no excuse, is a bit of a joke, as certainly the average reasonable person, who has no legal training, could not access with certainty the requirements for each crime. This is even more evident when case law does not just define certain words used in a section but actually reads into the section additional words.

This is the case with the s.4 (3) meaning of “possession.” This section is a perfect example of how the Courts have restricted or narrowed the prohibited act of a crime, as originally conceived by Parliament, through legal interpretation. Of course the courts do not do this whimsically. There is a method to their madness and the modifications ensure the integrity of the criminal law as a whole. In the case of possession the added requirements ensure the law is not overly broad and does not capture those whom we would consider legally and perhaps, although not necessarily, even morally innocent. The big puzzle is why Parliament doesn’t take the hint and, in the next round of omnibus Criminal Code changes, amend the section accordingly. To not do this smacks of “ostrich-in-the-sand” kind of mentality. Or better yet, is to liken the attitude to the Ravenous Bugblatter Beast of Traal from the Hitchhiker’s Guide To The Galaxy– what you can’t see isn’t there.

In any event, with this lengthy introductory rant, let’s look at section 4 (3), which reads as follows:

For the purposes of this Act,(a) a person has anything in possession when he has it in his personal possession or knowingly(i) has it in the actual possession or custody of another person, or(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

What we really want to focus on is the concept of joint or constructive possession under s. 4 (3)(b), which requires “knowledge and consent.” The difficulty with this definition started with the Alberta case, from the sixties, Marshall.  The teenager, Daniel Marshall hitched a ride with some friends from B.C. intending to make his way home to Alberta. During the ride, the other teens smoked a hookah pipe filled with marijuana, which Marshall passed along but did not partake. When the Alberta police stopped the car for a broken headlamp, billows of marijuana smoke drifted out of the open windows. Everyone was charged with joint possession of marijuana on the basis of s. 4(3). Marshall was convicted at trial on the basis there was knowledge and consent per the wording of the section. The Alberta Supreme Court, Appellate Division, as it then was, disagreed, finding that consent required more than the mere presence of Marshall in the car and that although he consented to be in the car, that did not mean he consented to the presence of the drugs. Furthermore, the court, in discussing whether or not Marshall was a party to the possession, noted that Marshall had no power to control the people with the drugs nor was he the driver of the car.

This control aspect was applied directly to the meaning of possession in the 1983 Supreme Court of Canada Terrence case. In this case, the issue was possession of a stolen vehicle and Terrence’s presence in the vehicle as a mere passenger. In referring to and approving of the lower Court of Appeal for Ontario decision in the case, the SCC agreed that an element of control was required for proof of possession. In their view, if control was required for proof of being a party to an offence, then, similarly, control was required for joint possession, which was also a mechanism for deeming multiple parties legally responsible for a crime.

This case law restricting the meaning of joint or constructive possession under s. 4(3) does make sense and does ensure that responsibility is properly meted out. However, the concept can be a bit of a stretch. Take for example the 2001 Mraz case from the Saskatchewan Provincial Court wherein the accused was acquitted of possession of marijuana. There the judge found there was no control, even though the accused shared a “joint,” one of the many euphemisms for a rolled marijuana cigarette and apropos here as we are talking about joint possession, with his co-accused. There was no control because the co-accused had full control of the bagful of marijuana from which the previously smoked “joint” came. There was some dispute as to where the bag was found, as the accused believed his co-accused kept it on his person, while the bag was actually found in the car under the seat.

As a quick aside, this leads me to consider the origin of the slang “joint” used to describe a rolled marijuana cigarette. Although I am loath to use Wikipedia, the webpage on the etymology of the slang “joint” seems credible. “Joint,” which is derived from the French word “joined” was used in the 1800s to refer to an annex to a main room. The term picked up an unsavoury flavour when in the late 1800s it was then used in reference to a run-down bar or even an opium den. In the thirties the slang was used in reference to a heroin hypodermic needle because the needle was often shared. The same reasoning is applied to the use of the word “joint” for a marijuana cigarette, as it too, as seen in the cases of Marshall and Mraz, is usually shared.

Thank you for joining me. In the next podcast we will complete our discussion of section 4 when we look at the three “esses;” subjects, sexual intercourse, and service.

Episode Six Ideablawg Podcasts on the Criminal Code of Canada Section 4(3) Possession as an Example of Judge-Made Law

Section 3.1 and the Effect of Judicial Acts: Episode Four Ideablawg Podcast on the Criminal Code of Canada

The following is the text version of Episode Four of the Ideablawg Podcasts on the Criminal Code of Canada. At the bottom of the text is the actual podcast. However, I do encourage you to read the text as well and follow the hyperlinks to the cases and other websites to which I refer. Enjoy!

Welcome to Episode Four of the Ideablawg Podcasts on the Criminal Code of Canada. My name is Lisa Silver and today we are discussing section 3.1 of the Code, which is entitled “Effect of Judicial Acts.” When I started researching this seemingly innocuous procedure section I uncovered some extremely interesting connections that I am really excited to share with you. So let’s dig deep into section 3.1!

First, I want to set the stage, so to speak, on this section and there are many ways to do this. As I already said, this section is a procedure section. What does that mean? A procedure section involves the process in criminal law as opposed to a substantive law section, which sets out the essential elements of criminal offences or the substance of criminal law.  Criminal procedure is just a set of rules on how that substantive law is enforced and implemented through the criminal justice system. I will reserve a fuller explanation for my blog “basics of Canadian criminal law” series – coming soon.  So, section 3.1 involves the rules of criminal process.

The placement of s. 3.1 is also of importance. Last podcast, when I introduced s. 3.1 as my next podcast, I did so by identifying the section with its place in the Code. I said that s. 3.1 was the first section to come under Part I of the Code, known as the “General” Part. Oddly enough, when I looked at my annotated Criminal Code, being Martin’s Annual Criminal Code, section 3.1 is not placed under Part 1 General Part but is found under the previous interpretation segment discussed in the last three previous podcasts! To make sure I was not mistaken in my podcast placement, I checked the actual statute as found on both the Department of Justice website and canlii (Canadian Legal Information Institute) website and found that s. 3.1 is found under the General Part as I indicated.

So is s. 3.1 an interpretation section or is it a General Part section? With all due respect to my favourite annotated Code, I submit section 3.1 properly comes under the General Part as a matter of process as opposed to a matter of interpretation. Also, Martin’s rival, Tremeer’s Criminal Code, which my husband favours, places section 3.1 as the statute does, under the General Part I. Now that would make a good future blog discussion on the various Criminal Codes, both annotated and not, and their history. Now back to this podcast.

You may wonder how there can be such a discrepancy. I can only speculate but as this section is a fairly recent amendment to the Code, from 2002, the publishers of Martin’s, Canada Law Book, simply placed it after section 3 as opposed to separating the two sections by placing them under different segments. Logically s. 3.1 should come after section 3 but really when the government amends the Code there is often no rhyme or reason to the numbering, as we will see. I mean, where else could they have put this section? I’ll have to think about that.

So we have physically placed the section and now I will read it to you:

Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.

What exactly is this section doing? It is in essence creating a presumption. A presumption, which I will later argue is contrary to the common law. This section is telling us that when a court or a specific judicial officer does something – any action such as an order – that act is effective immediately, no matter how it is communicated. So, the presumption is for immediacy. The presumption is however rebuttable, meaning that the court or judge when he does the act can say the act does not take effect immediately. However, if the court or judge says nothing about the time of effectiveness, the presumption is for immediacy.

Okay. That makes sense. When someone does something they mean it to be done asap unless they indicate otherwise – brings to mind Yul Brynner as Ramses II in the Ten Commandments when he says “so let it be written, so let it be done.” Of course, this is as opposed to Yul as the King of Siam in the King and I where he adds onto all of his orders “etc., etc., etc.”

It makes sense to be sure but why did the government add this and why did they only add this in 2002?  In order to find out why they added this section, we turn to the Parliamentary records. This section was part of an omnibus Bill C-15 also known as the Criminal Law Amendment Act of 2001, brought in by the then Liberal Government and sponsored by the then Minister of Justice and Attorney-General, the Honourable Anne McLellan. It is amusing and ironic to read the debate on this bill as the opposition, namely the then Canadian Alliance through Vic Toews as the Justice critic, bash the bill because of its omnibus nature. Agreed the bill is an odd mix of Criminal Code amendments, everything from procedural changes such as 3.1 to “animal cruelty, child pornography, and firearms,” but this practice of kitchen-sink amending appears to be pro forma today.

In McLellan’s speech to kick-start the debate on the second reading of the Bill, she stated:

Let me turn briefly to the area of criminal procedure reform. The Department of Justice has been working closely with the provinces and territories on criminal procedure reform for some years. This work is now in its third phase. The objectives of phase three are to simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system. As I said at the outset, the provinces and territories support these reforms. As they are responsible for the administration of justice, I believe that we should do our best to give them the tools they need to ensure the efficient and effective operation of the criminal justice system.

It appears then the amendment was for efficiency and modernization, particularly as a result of the increased use of technology. This is consistent with the legislative history of the amendments, which gives the “key thrust” of the bill is to provide for the use of electronic documents. In terms of section 3.1, the document states:

As a general matter, clause 2 of the bill ensures the legality and immediate effectiveness of judicial acts from the moment they are done, whether or not they are reduced to writing.  This provision ensures the validity of judicial acts made in a number of circumstances where hard-copy documentary proof of the act is not immediately generated.   Such situations could include judicial decisions in the form of orders or warrants which may be issued electronically or orally by telephone or some other form of audio or audio-visual communications link.

There may be another reason for this change as well. Such a rule, albeit worded differently, is found in some provincial rules of court. Each court level has rules to assist them in the nuts and bolts of the organization and maintenance of the courts as well as procedure. Criminal procedure, as a result of s. 91(27) the Constitution Act, 1867, is within the power of Parliament, while s. 92(14) gives the provinces the power to administer justice in the province through rules on civil procedure and the “constitution, maintenance, and organization” of the civil and criminal courts. In terms of civil procedure each provinces rules of court apply. There are also criminal rules, which tend to the organizational side, leaving the procedure, as required by the Constitution Act, with the feds.

Just looking at the Alberta Rules of Court, which were completely overhauled in 2010, rule 9.6 states that the effective date of “every judgment and every order” is on the “date of pronouncement” unless the court orders otherwise. It is similar to section 3.1 yet different. The civil rule is restricted to judgments and orders and to “pronouncements.” According to various dictionaries, “pronouncement” means a formal declaration, usually a judgment. Of course, the Criminal Code section applies to any act of the court and is therefore much broader.

Now we understand why the government decided to put this section into the Code but what is the effect of this effect of judicial acts? For that we are going to look at some case law and the concept of functus. The word functus is from the Latin word fungor, which means to execute or administer or to discharge. When used in its legal sense, it refers to the phrase functus officio, when a judge has exhausted his or her authority over the matter and can no longer alter his or her decision. It typically applies to final decisions of the court. A judge would be functus officio when he or she acquits an accused of a criminal offence. That finding is final, in the sense, that judge no longer has any power over the accused and the case. In other words, the judge cannot re-open the case or amend a final decision unless there has been an administrative “slip” in the decision or “error in expressing the manifest intention of the court.” Instead, there are appellate remedies but the trial judge is now functus and out of the game.

The concept or doctrine of functus officio originally comes from English common law on the premise that we need some finality in court in order for parties to an action to have finality as well. However, this common law rule applied to the final formal judgment and did not apply to any and all acts done by the judge. In fact the common law rule made allowances for informal reasons that may be changed. That is still the law in England, where there is “within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected.” Section 3.1 has now changed the common law. This was recognized in 2004 in the Alberta Queen’s Bench decision in R. v. Harris.

Next podcast, we will be dealing with section 4, which can be viewed as an omnibus section of unrelated statements regarding interpretation of the application of criminal law. It does sound as if this section should be in that interpretation segment but we will see that this section goes further than interpretation to position all users of the Criminal Code on common ground. In this way, this section truly deals with generalities and thus properly in the General Part of the Code.

 

Episode Four Ideablawg Podcast on Section 3.1 and the effect of Judicial Acts

Let’s Talk About the Canadian Criminal Code: Episode Two Section 2 (and s. 2.1) - Definitions

Welcome to episode two of the Ideablawg Podcast entitled: Let’s Talk About the Canadian Criminal Code.

Last week we discussed the short but complete section 1 “naming section.” This week we will talk about its polar opposite: the hefty yet incomplete section 2.

As discussed in the last podcast, there is a method to the madness of writing legislation. Indeed the framework or structure of a statute is not whimsical but follows certain prescribed formats. These formats may differ slightly from statute to statute and from levels of government as we learned when we talked about preambles to an act as opposed to a purpose section found within a statute. But in essentials, statutes tend to look very similar.

One of these similarities is found in section 2 of the Criminal Code – found under the interpretation segment of the Code, entitled “definitions.” These words and phrases are definitions of key terms used within the Criminal Code.

Now I called this section hefty yet incomplete. Hefty, because this section 2, which is not broken down into subsections as other sections of the Code are, provides us with a long alphabetical list of words in which some terms are defined quite lengthily. In fact, there are 73 words listed under section 2 from “Act” to “Writing.” Of the 73, 2 are repealed: the term “feeble-minded person” was repealed in 1991 and “magistrate” in 1985 as these terms are no longer used in the Criminal Code. Of course, Canada no longer has any “magistrates” as they are now known as “provincial court judges.”

The term “feeble-minded person,” however, comes from the old rape provisions in the Criminal Code, namely s.148, and came into force through the 1922 Code amendments.   It is difficult to read this old section without cringing:

s. 148. Every male person who, under circumstances that do not amount to rape, has sexual intercourse with a female person

(a) who is not his wife, and

(b) who is and who he knows or has good reason to believe is feeble-minded, insane, or is an idiot or imbecile,

is guilty of an indictable offence and is liable to imprisonment for five years.

The term also applied when considering the old insanity defence under the now amended (as of 1991 there is no insanity defence but an offender may be found NCR or “not criminally responsible” as a result of a mental disorder) s.16 of the Criminal Code. Unlike the rape provisions, this term when used in the context of insanity, applied equally to men and women. Interestingly, in the 1984 Supreme Court of Canada decision, rendered a year before the term was repealed, Justice Dickson, as he then was, in the Ogg-Moss case, agreed that the term was “somewhat disturbing to modern sensibilities” but was really equivalent to saying “mentally retarded” or “developmentally handicapped.” Of course, both of those terms today are deemed completely inappropriate as well. The term “mental disability” is now the preferred adjective. There is still a sexual offence related to this: sexual exploitation of person with mental or physical disability under s.153.1 and it applies to both men and women, married or not.

Amazing that the term, “feeble-minded person,” was only repealed in 1985.

I also call out this so-called definition section as being incomplete. Incomplete, because not all words used in the Code are defined. This has a twofold significance: as not every word which we would like to be defined is defined and not every word which is defined is found under this section.

Let's tackle the first thought: not every word we would like to be defined is defined in the Criminal Code. As we ramble through the Code, we will be faced with some crimes for which some essential elements of the prohibited act are not defined for us. At this point our only recourse is to go to the case law. Case law produced, by judges, interpret statutes together with principles found in the common law and come up with legal interpretations or definitions of the words used.   If there is no case law on the word or phrase then a lawyer is forced to be creative and come up with a definition, which they hope the trial judge will accept. To be frank, the best starting point to do this is the dictionary. How is this word defined in Webster or Oxford? Then, how is it defined in case law? In other jurisdictions? And so on. To me this is the fun part of being a lawyer – when you can be part of the creation of the law.

An example would be the phrase “planned and deliberate” under s.231(2) of the Code, which is the section outlining when murder is deemed first-degree. The term is only important for sentencing classification and comes into play only after the Crown has proved beyond a reasonable doubt the intention required for murder as found under s.229. This phrase is not defined in the Code but is neatly defined in case law to mean the follows: planned - a scheme or design previously formed, and deliberate - considered and not impulsive.

Now the second thought: not every defined word is found under this section, tells us that there are other places in the Code where words are defined. For instance, there are definitions, as referred earlier, at the beginning of some Parts of the Code such as Part VI Invasion of Privacy.

There are also definitions found within sections of the Code such as the term “crime comic” under s.163(7).

Then there are the hidden gems such as the term “negligence,” an extremely important term as it signifies the level of intention required to commit an offence and is used for one of the most serious offences in the Code s.222(5)(b) manslaughter. Yet, “negligence” is defined only by reference to a title of a section. In section 436, entitled Arson By Negligence, a fairly recent offence in the Code from 1990, the actual section setting out the crime does not use the word “negligence” but instead defines it as follows:

“Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.”

“As a result of a marked departure from the standard of care that a reasonably prudent person would use” is the definition, found in case law, of criminal negligence. I leave it to you to decide if this is indeed a “hidden gem” or merely another example of the complexities of our Criminal Code.

So, in the end, section 2 is not only a list of some definitions but is also a list of what is not defined in the Criminal Code.

 But of course it is not that simple.

For example, let’s look at a recent definition added to section 2 – “justice system participant.” The definition is a list of very specific categories of people who come under this term, such as under

(a) “a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council.”

Caution is required, however, as the definition is also very broad: under (b) it is also

“a person who plays a role in the administration of criminal justice.”

The definition does go on to list examples, but clearly this definition is not exhaustive. Imagine if we went to the dictionary for a definition of a word and it said etc, etc, etc.. Not overly helpful is it – so again we are down to case law and a possible argument in court in order to define the definitions and give them boundaries.

Before I close, I would like to discuss s. 2.1, which is a new section added in 2009. This section also provides us with definitions; in fact it is entitled “further definitions – firearms.” Okay, so instead of amending section 2, the government simply added a section 2.1 with firearm specific definitions.

Well, no not really.

Section 2.1 merely points us to the place where the listed terms are actually defined. The section lists words such as “ammunition” and “replica firearm” and tells us that those listed words have the same meaning as in s. 84(1). If we go to s. 84(1), we see a section defining a number of terms, including the ones listed under s. 2.1. This s. 84(1) is in fact the definition section for Part III of the Code on Firearms and Other Weapons. As mentioned earlier a Part may start with definitions of words found within the particular Part. Certainly, there are no definitions in the Code, which contradict, meaning there are no definitions of a term for one Part of the Code and then a different definition for the exact same term in another Part. So why did the government add this s. 2.1? For clarification? For extra emphasis? Why?

Well, in my view, Section 2.1 instead of clarifying actually does the reverse as it leaves the impression that if the word is only defined under a particular Part, that does not necessarily mean that word, if found elsewhere, has the same meaning.

And to make us even more confused, there is a federal statute with definitions, which apply to all federal legislation, as long as it is consistent with that legislation, called the Interpretation Act.

Now that’s confusion for you, that’s the Criminal Code for you, and that is the podcast for this week.

Next week we will discuss this Interpretation Act a bit more when we look at the last of the interpretation sections in the Code: section 3

Please note: This is the text of the Episode Two of my podcast. I do not have the audio file attached but will be sending out the actual podcast in a separate file.

Let’s Talk About The Canadian Criminal Code PodCast: Episode One, Section One

 

The following is the text of my first podcast including the actual downloadable podcast found at the end of the text. I am working on adding the podcast to iTunes and will announce this next step when it is completed!

Welcome to the “Let’s Talk About The Canadian Criminal Code” podcast. This podcast is a companion to my blog found at www.ideablawg.ca where ideas and law connect. In this podcast I hope to go through the Criminal Code section by section and discuss some interesting issues arising from each one. Be warned, although the Code ends at s.849, there are so many sections between sections that this podcast will continue for quite some time. Indeed the length of the Code will form part of one of my podcasts. After a few sections, I will do a “brain break” podcast where we will discuss a fact or issue related to the Criminal Code or criminal law in general but not arising directly out of a particular section.

Today we are going to do the obvious and start at the beginning – section 1. On the face of it, Section 1, as with many statutes does not seem to be very important or overly interesting. Typically, the first section of a Federal statute is called the “short title.” The “short title” names the statute in a user-friendly manner. Often when the government brings forward a statute as a Bill, the working title is lengthy and cumbersome. Thus, the short title is a welcome first section.

Note, however, I said this is typical of the first section of a Federal statute. Provinces, who also produce legislation, do not have the same typical format for their legislation. For example, in Alberta many statutes start with a “preamble.”  This preamble sets out the government’s purpose for enacting the legislation as a kind of mission statement indicating why the government desires this legislation and what the legislation aims to do. It also acts as a “forshpeis” or “bouche teaser” and gives us, the reader, a taste of what’s to come in the Act. It fills in the statute with emotive content as it speaks to the societal values ultimately expressed by the legislation. Some cynics might say the preamble is the political posturing or propaganda piece of the law. A good example is the preamble to the Alberta Human Rights Act, which reads as follows:

Preamble

WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice and peace in the world;

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation;

WHEREAS multiculturalism describes the diverse racial and cultural composition of Alberta society and its importance is recognized in Alberta as a fundamental principle and a matter of public policy;

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all Albertans should share in an awareness and appreciation of the diverse racial and cultural composition of society and that the richness of life in Alberta is enhanced by sharing that diversity; and

WHEREAS it is fitting that these principles be affirmed by the Legislature of Alberta in an enactment whereby those equality rights and that diversity may be protected:

 

You get the idea.

 

So the question is: why doesn’t the federal government do this? First, the federal government through Parliament does present their reasons for bringing forward legislation. They write background papers and other such reports posted to their website to bring home to the nation why they consider their laws to be important and essential for living the “good life” in Canada. So they don’t usually need to express it in a preamble. What they will do is have a section in the Act, often near the beginning, where they state the purpose of the legislation such as in The Competition Act and The Contraventions Act. Usually this kind of statement is terser than the preamble I just read to you and form part of the actual legislation. Of course, there is an important

exception: the Constitution Act, 1867 founding our Dominion of Canada comes with a preamble and so does Part 1 of that Act being the Canadian Charter of Rights and Freedoms. The Charter’s “preamble” is short and to the point and reads: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:” I will pause here as I am sure many of you are a little surprised to hear that God has been invoked as a preamble to our Charter. Hmm. I wonder if the Charter breaches s.2(a) of the Charter – the fundamental freedom conscience and religion – in which we protect a person’s right to not believe in a supreme being.

Well, on that note, I leave you to consider the short title section of the Criminal Code. Next week we will consider section 2 – the unwieldy interpretation section.

Thank you for listening to the Ideablawg Podcast – where ideas and law connect!

 

EpisodeOneLetsTalkAboutSectionOneoftheCriminalCode

The SCC’s Whatcott Decision Explores The Meaning Of “Hatred’ While Continuing The Subjective/Objective Debate

As discussed in previous blog postings, the Supreme Court of Canada appears to be moving towards the objective standard in criminal law – a standard in antithesis to the subjective standard which requires the trier of fact to determine the accused’s perception of the facts in deciding upon guilt or innocence. The objective standard found in objective mens rea offences and used as a standard of assessment in many defences, relies upon the seemingly objective perception of the reasonable person – a legal construct endowed with the standard of a standard citizen from a standard community.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

 

Is The Law Round?

Neil Degrasse-Tyson is an American astrophysicist who is also a cult hero. His books, written for the layman, are extremely popular and readable. He has almost a million followers on Twitter. The Imaginary Foundation, an experimental research think tank, which also hosts a website and blog where they post cool ideas, has multiple postings on Degrasse-Tyson. There is even a magical video as part of the Symphony of Science series where one of Degrasse-Tyson’s lectures is to put to music.  In short, he rocks. His lecture series, which I have had the opportunity to watch, are informative, interesting, and hilarious. He is above all thought provoking and the lecture I recently watched on “On Being Round,” started me thinking about the connection between “being round” and the law.

“Being round” is such an important concept in our physical world because all objects want to be round. Being in a state of roundness is being in the most efficient shape as it provides the largest surface area for an object. It is, in other words, the natural shape for an object. Rain, is spherical as it falls from the sky. Our stars, planets, and even the observable Universe are round. However, other forces, such as gravity, may squash the sphere either a little, like our earth to make it more an oval shape, or completely, like our flattened solar system. Either way it is the circle shape that is the most natural and most sought after shape.

So applying this premise, I ask is the law round? In many ways the law is, particularly if you consider that roundness means that two ends meet to complete an object or an event. Certainly in the civil context, usually the best-case scenario is where the parties come to an agreement before a trial of a matter. This is the most efficient and equitable outcome.

There is also continuity and stability with roundness. The rule of law is in place to provide a familiar and thus stable form of discourse in society: we all understand what a stop sign means and we all have the same expectations when we see it. However, despite this, there are times when people do not act as the rule of law dictates. In these instances, the bubble bursts and the completeness of the law seems to be imperfect. Like the forces of gravity causing our planet to bulge in the middle and therefore deviate from the perfect spherical shape, the law must provide an outlet or a mechanism for those situations when the perfectness of the law is broken. Criminal law attempts to provide another set of rules for those instances, perhaps making the law more elliptical in shape than perfectly round.

There is one instance in the criminal law, where roundness is everything: the sentencing circle. The sentencing circle is an innovative sentencing practice, which arose out of the need to provide a more meaningful and relevant outcome to criminal offences for the Aboriginal community. Our criminal law, based in English common law, imposes sentences based on traditional sentencing concepts such as deterrence, retribution, and rehabilitation. These concepts are decidedly based on Western ideals and do not accommodate differing cultural practices. This rigidity translated into a disproportionate amount of Aboriginals in the criminal justice system, resulting in a disproportionate number of Aboriginals serving jail sentences. It was clear that the traditional precepts of the criminal law did not resonate with the Aboriginal community. It was equally clear that the adversarial system so entrenched in our criminal law was part of the problem. This conflict-oriented system was at odds with the Aboriginal values of community and collective respect. The idea of a sentencing circle embraced the concept of reconciliation and collaboration requiring the input of the community, not just the judge and case law, in crafting an appropriate, and hopefully rehabilitative, sentence. Thus the “round-table” becomes part of the criminal law nomenclature.

Unfortunately, unlike nature, “being round” does not guarantee success. According to the 2011-2012 Annual Report of the Office of the Correctional Investigator, released by Howard Sapers, the number of Aboriginal offenders in the penitentiary system has increased. In fact, over the past ten years the Aboriginal inmate population has increased by 37.3% and although only 4% of the Canadian population is Aboriginal, 21.4% of the penitentiary population is Aboriginal. Although, sentencing circles are not typically used for the most serious offences and this could explain why the numbers in the penitentiary system are still high. However, this does not mean that alternatives to traditional criminal law do not work. Indeed, to “think outside of the box” and to be open to different legal solutions, may in fact, make the law more transparent, more equitable, more efficient, more impactful, and well, more round.

Touching On The Biographical Core of Personal Information: The Supreme Court of Canada’s Decision in Cole

As soon as the Supreme Court of Canada issued the Cole case, I went to the website to read it. Initially, I was drawn to the case hoping to find further clarification and the “filling in,” so to speak, of the legal principle of “reasonable expectation of privacy.” As with so many phrases used in law, legal interpretation is required to give the terms a more robust character and to solidify the meaning so that the mere hearing of the term conjures up the correct legal principle or the proper connections to be made between case law and precedents. The term of “reasonable expectation of privacy” is one of those terms which requires this incremental corporeality in order to make the law more certain. This is particularly needed in the Charter universe where heady terms like “Liberty” and “Freedom”, which by the way are not synonymous according to Chief Justice Dickson in the Edwards Books and Arts case, delineate the parameters of our Charter rights.

Certainly, the Supreme Court of Canada did not disappoint in the Cole decision, as they “filled in” the term in relation to the work place. In doing so, the court answered the question of whether or not there is a line drawn between personal and work and if so, where that line can and should be drawn. Of course, the judgment is not so practical as to suggest the exact place in which the line rests, but it does serve as a guideline for the employer-employee relationship. This posting, however, will not be a critical legal analysis of the judgment in relation to the answer provided by the court. Instead, this posting focuses on one paragraph, indeed the second paragraph of the majority judgment written by Justice Fish.

The second paragraph reads as follows:

Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

Two concepts found in this paragraph hold my interest. The first is the striking way in which the court defined the personal information found on a computer as “meaningful, intimate, and touching on the user’s biographical core.” Interestingly, this description, which does not refer to any previous case law, does, on a close reading, come from two earlier Supreme Court of Canada cases, which although are related to reasonable expectation of privacy in a search and seizure context, are not related to information found on a computer.

The first is the 2004 Supreme Court of Canada case, R v Tessling. This case is familiar to most criminal lawyers faced with an unreasonable search and seizure or section 8 challenge. Tessling involved the use by the RCMP of FLIR or forward looking infra-red technology. In this instance, the RCMP employed a FLIR camera on an overflight of property, which revealed infra-red images of the emission of heat radiating from the suspect property. The abnormally large amount of heat radiating from the observed property, together with informant information, resulted in the issuance of a search warrant. Police found on the property a large quantity of marijuana and weapons. Counsel at trial argued the overflight using the FLIR camera was an unreasonable search and seizure. The trial judge disagreed and the accused was convicted. However, the Court of Appeal for Ontario reversed the decision, finding there was a violation of s.8 and the evidence was excluded under s.24(2) of the Charter.

The Supreme Court of Canada, through the unanimous decision written by Justice Binnie (an Ontario appointment), did not agree with the provincial appellate court. They did agree that the ability to be free from state action while at our home (as in "the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604)), unless there was prior judicial authorization to do so, was of paramount importance. Justice Binnie discussed how this concept of territorial privacy of the home has expanded to the protection of the bodily integrity of the person through the protection of the privacy of being at home. Thus, being at home suggests, “being the place where our most intimate and private activities are most likely to take place.” It is these activities, which the Charter must zealously safeguard.

In the end, the FLIR camera, revealing only heat images, did not step into the private refuge of the home. Equally, the camera did not step into the “intimate and private” activities, which are core to personal integrity and self-identity of a person as a human being.

Another issue discussed by Justice Binnie in Tessling, brings us to the second Supreme Court of Canada case to characterize personal information as “meaningful, intimate, and touching on the user’s biographical core.” According to Justice Binnie, the difficult decision was where to draw the line: at what point does the state over step their authority and wander improperly and, more importantly, unreasonably into the private lives of an individual. This too was the issue with which the Court struggled to understand in Cole.

To answer this, Justice Binnie turned to Justice Sopinka’s words in R v Plant (1993), another unreasonable search and seizure case involving a warrantless perimeter search of a dwelling house. Justice Sopinka, in starting from the underlying values of the Charter of “dignity, integrity, and autonomy,” found it an intellectually easy journey that

s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (Emphasis in bold added)

Thus, it is out of a nuanced discussion on the privacy of the home, which expanded the concept of the “home as our castle” metaphor to another metaphor found in the idiom “home is where the heart is,” suggesting that it is not the structure that reflects who we are but what is inside – the people and the thoughts we leave behind.

As an aside, the 2011 Saskatchewan Court of Appeal in R v Trapp, which is also a child pornography matter considering the “reasonable expectation of privacy”, utilized these cases in determining the legality of the seizure of information from the accused’s internet service provider. In fact, Justice Cameron, speaking for the court, reviewed this seizure

to identify the import or quality of this information, having regard for the principle that section 8 protects a biographical core of personal information, including information tending to reveal intimate details of the lifestyle and personal choices of the individual.(Emphasis added)

Such an analysis lead the court to conclude that the seizure of the information was not contrary to the Charter.

This brings me to the second point arising from this short second paragraph written by Justice Fish. The finding in Cole not only “fills in” the term “reasonable expectation of privacy” but also “fills in” or further defines the Supreme Court of Canada’s interpretation of the Charter; the concept that the Charter reflects the underlying fundamental values of our society. The Cole decision merely continues the line of cases, which embrace the idea that Charter values, not necessarily concrete or corporeal Charter terms, lend meaning to Charter rights. Thus, it is the concept of “meaningful, intimate, and touching on the user’s biographical core,” coming from Charter values, which delineates the line of reasonableness.

Now back to the Cole case and the further expansion of personal information, as protected by Charter values, to personal information contained on a computer hard drive. Now, the private world of an individual’s has shrunk from the home as the container of our most intimate and meaningful thoughts to the nano-world of computers. Like a diary, the computer captures a timeline of who we are and who we want to be: our desires, our dreams, and our inner most thoughts. Recognizing this decision is truly a further “filling in” of Charter values helps us understand this decision more thoroughly and causes us to consider what will be next. Perhaps the intimacy of details on Facebook and other such sites will prove to attract more protection than initially thought. In any event, it is clear that the sanctity of the home has become the sanctity of the hard drive.

Whose Life Is This Anyway? The Canadian “Right To Die” Debate Part One – Definitions and A Story

Sue Rodriguez was an active and intelligent woman when she was diagnosed with the debilitating and ultimately fatal, Lou Gehrig’s disease or amyotrophic lateral sclerosis (ALS) in 1991. Indeed, it is her wit and poise many of us remember when we recall the headlines she generated. Her quote, “whose life is it anyway,” spoken in a slow drawl, her ability to speak being slowly taken away by disease, still resonates with Canadians today as once again our courts grapple with the most basic issues of life and death.

As with all controversial issues, the right to die has taken a “life” of its own as it extends over all areas of deeply held beliefs such as philosophy, science, law, religion, politics, and socio-economic concerns. The issue has been considered in all forms of media and in all manners of legal cases. It has been touted in Kevorkian-like advertisement and debated in the highest offices of the land and yet, it is a profoundly personal issue, which transcends nationality and ethnicity.

Throughout this vastness of ideas and beliefs, it is essential to keep in mind that at the very core of the issue, there is always an individual, a person who is suffering, a person who wants a choice where a choice is not legally given. Sue Rodriguez was such an individual those many years ago when she took her right to choose to the Senate and to the Supreme Court of Canada. In the end, it was Sue Rodriguez who choose to die “on her own terms” outside of the law, even though her last wish was to remain one who respected it.

Euthanasia and assisted suicide are actually two different concepts. Euthanasia is the deliberate act undertaken by one person with the intention of ending the life of another person in order to relieve that person’s suffering. There are three forms of euthanasia: voluntary, non-voluntary, and involuntary. Voluntary euthanasia occurs when the act is done in accordance with the wishes of a legally competent individual or on the basis of a valid medical directive prepared when the patient is competent to authorize the procedure. A competent individual is capable of understanding the nature and consequences of the decision to be made and capable of communicating this decision. Non-voluntary euthanasia occurs when the act is done without knowledge of the wishes of a competent individual or, with respect to an incompetent individual. This form of euthanasia may attract criminal sanctioning. The third and last form is involuntary euthanasia occurs when the act is done against the wishes of the individual. This act is indistinguishable from murder or manslaughter and should attract the full force of our criminal law.

The Criminal Code of Canada, pursuant to s.14, essentially prohibits euthanasia by stating: “No person is entitled to consent to have death inflicted on him.” It is a core traditional principle of our criminal law that an individual cannot consent to his or her death. Indeed, one cannot even consent to grievous injury, which explains why even in a consensual violent sport like hockey, Todd Bertuzzi was charged with assault causing bodily harm. Whether or not the sentence imposed, a conditional discharge, was appropriate is another matter for a later blog. In any event, even in the medical sense, a doctor who gives the patient a lethal injection would be criminally liable. Also in the Criminal Code are legal duties placed upon medical personnel, which require them to perform their duties with all due care, requirements contrary to taking a patient’s life.

Therefore, euthanasia is clearly contrary to Canadian criminal law, and should be prosecuted as first-degree murder, because there is an intent to cause death, which is the definition of murder, and the act is most often planned and deliberate, which is the definition of first-degree murder. However, the Canadian reaction to euthanasia scenarios have fallen short of first-degree murder charges and have tended toward lesser charges such as charges of second-degree murder, manslaughter, and administrating a noxious substance. The charge decisions have definitely been influenced by the circumstances surrounding the euthanasia as a response to human suffering and the desire to relieve the suffering, such as in the Robert Latimer case.

Another factor is the unpredictable nature of juries, who are required to make decisions according to the rule of law but can be swayed by emotional factors as well. Finally, it can be legally difficult to prove murder in euthanasia cases. The Crown prosecutor must prove a legal and factual casual connection between the accused’s actions and the death. Typically, medical evidence is required to make this required connection. In euthanasia cases, it may be medically difficult to prove the exact cause of death when a person is in any case close to death and taking considerable pain medication. 

Assisted suicide, on the other hand, is the act of intentionally killing oneself with the assistance of another who provides either the knowledge to do it or the means to do it, or both. Assisted suicide is specifically prohibited in our Criminal Code under s.241, in which counseling someone to commit suicide or aiding or abetting someone to commit suicide is contrary to the law. Even if the person in question does not die from the aid, the person so assisting may be guilty under the section.

The difference between euthanasia and assisted suicide is therefore dependent on the type of involvement of the third party: euthanasia is when the action of a third party intentionally causes the death of a patient such as through the administration of a lethal injection and assisted suicide is when a third party provides the means and/or information necessary but the actual act causing death is carried out by the patient herself.

My next posting will continue outlining the legal background to this debate with a survey of the legal decisions made on the issue. However, to start and end this posting with Sue Rodriguez is essential: she was a real person suffering from the effects of a debilitating disease and her choice, to end her life when she saw fit, not when it was beyond her control, was her truest wish.