SPEAKING NOTES TO THE STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS: Concerning C-75 and the Amendments to the Preliminary Inquiry

Mr. Chair and honourable members of the Standing Committee, thank you for giving me this opportunity to comment on the proposed amendments to the preliminary inquiry sections of the Criminal Code. It is a privilege to be here to speak on an issue which carries the weight of historical discourse and has engaged far greater minds than myself. The question of abolishing the preliminary inquiry has echoed through these halls and the courts of our nation and has engaged the public’s interest as well.

How do I come to speak to this matter? I am by trade a criminal defence lawyer and have been so from my early days of law school in the mid1980s. I have conducted preliminary inquiries, I have argued about them as appellate counsel, and I have written about them as a now law professor. Indeed, I have been rather vocal about the preliminary inquiry and these proposed changes. I hope my Brief and this opening statement will shed some light on why I believe the preliminary inquiry, albeit in a different structural format, is worth saving. 

But first, I will open with a personal story. A story I often repeat to my students when asked which case most significantly impacted me in my early career. The day after being called to the Bar in 1989, I received a case from one of the lawyers sharing space with the law firm for which I was employed. 

The preliminary inquiry was only 2 days away. The client, who was detained in custody, was charged with an attempt break and enter with the intent to commit an indictable offence. The maximum punishment for the full offence, as it involved a dwelling house, would have been life imprisonment but as an attempt it was punishable by fourteen years. Still a significant term. As an aside under the new proposed amendments such a preliminary inquiry would not be possible. 

 It was rather a pathetic and all too familiar story. The client was found loitering in front of a home on the sidewalks of Rosedale holding a pointy and frayed stick. He appeared to be intoxicated. The police were called. Upon investigation of the nearby home, it appeared that the front door lock was freshly scratched with bits of paint that appeared to be derived from the client’s pointed stick. Appearances, however, may be deceiving, Upon review of the file, I recommended to the client we argue against committal at the preliminary inquiry. Needless to say, Judge George Carter agreed. The client was discharged and immediately released. This preliminary inquiry changed his life. He had a lengthy record and was an alcoholic, but this change in his fortunes gave him hope. He straightened out, went back to school and became a youth worker in a young offender facility. Ultimately, he attached himself to the UN peacekeeping tour of Bosnia and he never looked back. 

 I know I was asked here based on my academic credentials and writing in the area but to me there is no clearer evidence of the importance of the preliminary inquiry as a tool for good than this story and I did want to share it with you.

So on to the less emotional side of the equation.

I am certain you have already heard last week many good reasons for why the preliminary inquiry in its present format must be retained. My Brief also outlines the historical significance of the preliminary inquiry as an essential protective shield against the power of the state. It is more than procedural. It lies at the heart of the criminal justice system as it is linked with the presumption of innocence and fair trial concepts. The preliminary inquiry calibrates the scales of justice in accordance with those fundamental principles of justice and provides meaningful judicial oversight. 

The power of the preliminary inquiry, as I have already alluded to, cannot be taken for granted, nor underestimated. But preliminary inquiries take time, precious court resources that are finite. We are, in many ways, facing a crisis in our court system as evidenced by the Jordan andCody decisions on trial delay. In fact, one of the suggestions arising from the Senate Committee Report on that crisis recommended the termination or limitation of the preliminary inquiry. The recommendation before us today in Bill C-75 is the more tempered vision of this Senate recommendation but, in my submission, it still goes too far. The amendments do not provide the protection promised by the full operation of preliminary inquiries and, as outlined in my Brief, does not account for the many other ways the preliminary inquiry assists the proper functioning of the criminal justice system.

Keeping in mind all of these competing concerns, we must create a solution to the problem that still remains consistent with our desire to provide a fair trial in accordance with our long-held principles. Such a solution will require another recalibration, yet one which will maintain the scales of justice as writ large in our common law and Charter. In my respectful submission the solution recommended in the amendments do not do this. Instead, this honourable committee should consider a more practical solution. A solution that lies within easy reach can be found in our civil system of justice in its procedures for civil questioning or discovery. This discovery system, for the most part, lies outside of the courts. It provides useful evidence for trial and can encourage resolution. It is also predicated on full disclosure.

By using that civil system, judicial resources, and therefore court resources, can be used in a focussed manner that stays true to the primary committal function of the preliminary inquiry, yet would permit the advancement of those vital ancillary purposes, be it preservation of evidence, building an evidential threshold case for a defence, or engaging in resolution discussions. Where there is a realistic committal issue, a preliminary will be heard by a judge. Where the matter involves one of the other viable purposes for a pre-trial questioning, the matter can be heard in a less costly forum, outside of court, in a conference room where the matter can be recorded for future use at trial. This solution provides a viable alternative to the amendments, it balances competing rights, it is mindful of court resources and it is already in use.

I thank the Chair and the other members of this honourable committee for inviting me to make submissions on an integral part of our criminal justice system.

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!

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.

Ideablawg’s Weekly Connections: The Olympics Edition

Of course, this week is all about the Olympics and when sport and law sometimes intersect.

1.   The Dispute: How does the IOC (International Olympic Committee) decide which sports should be included in the games? Although the Olympics have come a long way since the Ancient Greeks competed in a handful of events, there are a number of sports not included in the games and a few, which have been dropped over the years. Baseball and softball were not on the roster for the London Olympics but considering Tokyo will be hosting in 2020, this may change. Wrestling was off and then on again.  The Olympic rules require all sports to be reviewed after every Olympics with sports to be added or dropped by a two-thirds majority vote. There are, of course, those sports, which have been added to the Olympic lineup, such as golf, rugby (reappearing) and kitesurfing (new) in the 2016 Olympics.   At Sochi there were new events such as team figure skating and the snowboard and ski slopestyle.  Women’s ski jump was a new event this year but not without some controversy. The quest for gender equality in the ski jump event evolved over time, culminating in a legal challenge by high-ranking women ski jumpers before the 2010 Vancouver Olympics and Paralympics. The British Columbia Court of Appeal, in dismissing the women’s case, found that the Charter could not apply to the selection of the 2010 events as and that even if the Charter did apply there was no breach of equality rights under s.15(1). Although, the question of whether VANOC or the Vancouver Olympic Committee was a government entity was easily answered in the negative, however the more difficult question was whether in organizing and staging the event VANOC was carrying out governmental activities. Even though there was governmental support for the Olympics, the Court found that this fact was not decisive on the issue of selection of Olympic events. In deed, neither VANOC nor the governmental agencies supporting the host City were involved in the selection of events. Thus, it could not be said that VANOC was the decision-maker and therefore the Charter could not apply.   Even so, the Court considered the reach of the equality s.15. In finding there was no breach the Court stated, “section 15(1) sets out constitutional guarantees of equality that are broad in scope, but it does not constitute a general guarantee of equality.  Rather, the section guarantees equality only in the way that the law affects individuals.  Where the law is not implicated in discrimination or inequality, is not engaged.” As the law or statutory authority was not engaged by the right or lack thereof to compete in the Olympics, s. 15 was not available and was not breached. A leave application to the Supreme Court of Canada was dismissed with costs. In the end, women’s ski jumping was approved for inclusion in Sochi. Unfortunately, none of the women who brought the court case won a medal in the sport, but what they did, in the end, win a victory for the sport.

2.   The Crime: Remember when Olympic scandals read like soap operas? If your memory needs refreshing, take a backward glance at the Tonya Harding – Nancy Kerrigan incident, when Kerrigan was attacked by a hammer to her knees, before the 1994 Olympics at the Women’s Championship and could not compete. That year Harding won and then lost as it was revealed that she was involved in the conspiracy to assault Kerrigan. But don’t worry, Nancy Kerrigan went on to perform in the Ice Capades while Tonya is now a professional boxer. Irony on ice?

3.   The Sabotage: What is it about skates? The Kerrigan/Harding incident did not stop some members of the American short track team from sabotaging Canadian Olympic gold medalist Oliver Jean’s skates in 2011. Despite this admission, the skater who did the deed accuses the coach for pressuring him to do it. The ISU or International Skating Union’s disciplinary commission considered the case last year and laid the blame for the incident squarely on the coach. This year at Sochi the Canadians were careful to check their skates before competing.

4.   The Dissent: Controversy swirled at the Olympics over the lack of gay rights in the host country and the lack of desire to meet with the Vancouver envoy supporting gay rights. But dissent escalated even further when Pussy Riot, the female punk rock activists, who were jailed last year after performing a “blasphemous” song in the Moscow Cathedral, were arrested but released in Sochi and then whipped by Cossacks – yes, there are still Cossacks. Read about their angry music video on the debacle entitled "Putin Will Teach You To Love Your Country" here

Ideablawg’s Weekly Connections: Peace And Violence

This past week there were some defining moments in history all in a background of love, war, violence, and peace.

1. All You Need Is Love: This week we celebrated the anniversary of The Beatles on the Ed Sullivan Show. In this moment of reflection, let us consider the various ways the boys engaged law and authority. Consider Paul’s marijuana as found by the Japanese authorities in 1980 or John’s deportation battle in the USA. If you want something more uplifting – recall John and Yoko’s bed-in at Montreal’s Queen Elizabeth Hotel. Here is a great legal connection – Allan Rock, lawyer and politician (now President of the University of Ottawa) – managed to convince the couple to go from Montreal to Ottawa in 1969 when he was President of the University of Ottawa Students’ Union. Here is a personal connection – Allan Rock taught me Civil Procedure II while I was at Osgoode Hall Law School. Only two degrees of separation between John Lennon and me!

2. War: Sixty-nine years after the end of World War II and we are still learning something new about the events of the War years. The Monuments Men, a movie that opened this past week, enlightens us on how art and architecture was saved or not saved during the war. I also recommend reading the book but if you do, read it with an iPad nearby to reference not only the art pieces but also the places in which the art was found. This further connects to the ongoing struggle for the return of art stolen during the war. I have written a previous blog on the issue. This past week, Germany considered extending the law allowing Jewish families to recover this art as more caches of such art are being found.

3. Peace: One of my personal heroes is Richard Feynman – the Nobel Prize winner in Physics who passed away 26 years ago on February 14, 1988. Not only was Feynman an engaging man and a tremendous mentor and teacher but he was also a clear thinker with a heart of gold. He’s the one who dropped the O-rings into the ice-cold water to demonstrate how the Challenger disaster accident really occurred. He also ended his minority report on the disaster by stating “For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled.” A dramatization of these events aired on the Science Channel last year with William Hurt playing Feynman. Having read all books Feynman, I recommend the autobiographical What Do You Care What People Think? and his lectures on Physics. Although he was one of the young physicist working on the Manhattan project and was at Los Alamos during the War, he had a very strong reaction to the dropping of the bomb on Hiroshima. I strongly recommend watching his interviews on the subject here.

4. Violence: Is the independence of the judiciary something to fight about? In Turkey, a fistfight broke out over the government’s plan to restrain the judiciary. Certainly, this undemocratic move has political overtones in a country rife with such difficulties. This latest move is unsurprising considering the government’s past treatment of free thinkers such as Orhan Pamuk, the Nobel Prize recipient in Literature, who was charged with a criminal offence after speaking out on the Armenian genocide. Ultimately, the government dropped the charges but certainly this was a precursor to the events of Taksim Square and to the latest round of violence. Orhan Pamuk is another one of my role models – read Snow and My Name Is Red to experience Pamuk’s lyric and unforgettable prose.

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 4 Of Cabbages and Kings and Stamps!: Episode Five of the Ideablawg Podcast on the Criminal Code of Canada

The following is the text of episode 5 of the Ideablawg Podcasts on the Criminal Code  of Canada. The podcast is found at the end of the text. Enjoy!

"The time has come," the Walrus said,
 "To talk of many things:
 Of shoes--and ships--and sealing-wax--
Of cabbages--and kings--
And why the sea is boiling hot--
And whether pigs have wings."

- Lewis Carroll from The Walrus and The Carpenter

Welcome to Episode Five of the Ideablawg Podcasts on the Criminal Code of Canada. Today’s episode is a kickoff as we begin to tackle the potpourri we call section 4 – a housekeeping section, which tidies up the various loose ends of criminal law. It brings to mind Lewis Carroll’s poem The Walrus and the Carpenter and particularly the excerpt I quoted at the start of the podcast. But instead of cabbages and kings, we will chat about postcards, stamps, valuable securities, chattels, possession and joint possession, expressions, sexual intercourse, service and notification, and attendance.

But no oysters – theft of oyster beds will come much later down the road – probably next year - when we discuss section 323.

The task today will involve a discussion of section 4 in subsection (1) and (2), and remember we are in Part I of the Code called the General Part. These subsections, as I said, tidy up some of the definitions we encountered in s. 2. Section 4 (1) reads as follows:

For the purposes of this Act, a postal card or stamp referred to in paragraph (c) of the definition “property” in section 2 shall be deemed to be a chattel and to be equal in value to the amount of the postage, rate or duty expressed on its face.

We see a few words in this paragraph that call out for definition. We are told the section is referring to the definition of “property” under that section 2 definition, but the paragraph really begs the question because now of course we also want to know the definition of “postal card” and “stamp” and “chattel.”

First let’s take a look at s. 2(c) “property.” It says:

any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person;

That is of course important to know because the term “property” is used throughout the Code. Indeed a simple word search reveals that the word “property” appears in 161 sections of the Code. Take note that the word “property” is not found under s.322, which is the offence of theft, as the crime involves the taking of “anything, whether animate or inanimate.” Property, as defined under s. 2 is much more restrictive, as the definition in (a) and (b) actually refers to itself - “property.” It is only (c) which gives a concrete example of what property may be – postal cards, postage stamp or other stamp issued by the federal or provincial governments.

However, a word of caution: case law has considered the seemingly broad actus reus or prohibited act in the theft section and has overlaid a concept of property. Thus, in the 1988 Supreme Court of Canada Stewart case, confidential information was not considered “anything” in accordance with the theft section. Even so, as explained in the SCC 1992 Milne case, the criminal law concept of property does differ from the civil law, just as the purpose of criminal law differs from the purpose of civil law. More on this when we get to that section.

So s. 4(1) is adding onto that (c) definition – clarifying it for us – by advising us that “postal cards, postage stamp or other stamp” is a chattel with a value equal to the amount expressed on its face. So if you have a stamp for 5 cents its value is 5 cents. Now, that may be a problem as I now purchase stamps with no number value but with a “p” embossed on a nice red maple leaf placed in the stamp’s corner, which, so the post office assures me, means the stamp is “permanent” and can be used anytime as it is worth the going rate no matter when it is used or when it was bought. The other problem is that a 5 cent stamp may actually be a rare stamp and worth much more than the face value. The offender may be charged with theft but which punishment section applies under s. 334? Is it theft of property valued over $5000, which is an indictable offence and punishable by a maximum of ten years? Or is the stamp valued under $5000, which is a summary conviction offence with a maximum of eighteen months imprisonment?

To answer that question, we need to look at the definition of “stamp.” “Stamp” is only defined under the counterfeit stamp section 376 as “an impressed or adhesive stamp used for the purpose of revenue by the government of Canada or a province or by the government of a state other than Canada.” Not a very helpful definition for the police who want to charge the thief with the theft of the priceless 5 cent stamp, which is worth over $5000 dollars.

The next question is: what is a chattel and why does this section 4(1) insist on deeming the post card and/or stamp as one?  A chattel is an item of personal property, either animate or inanimate, which is moveable as opposed to real property, which includes land and improvements, which is not moveable. For example, when you purchase a house, which is real property, the items inside the house tend to be chattels, like the furniture, unless it is affixed to the house like the glass fireplace doors. Those items affixed to the real property stay and those, which are moveable, the chattels, usually go with the seller unless the item is specifically referred to in the purchase agreement. What does this mean for our postal card and stamp? It means these items are personal property even though they are government issued. Also they are moveable and thus chattels.

Onto s. 4(2) for which the marginal note explains is on “value of valuable security.” This subsection helps us determine the value of a valuable security, where value is material, in the context of the Criminal Code by expanding on the definition as found under section 2. So the purpose of this subsection is similar to subsection (1). Before I read this subsection, let’s go to the section 2 definition that reads as follows:

“valuable security” includes

            (a) an order, exchequer acquittance or other security that entitles or evidences the title of any perso

(i) to a share or interest in a public stock or fund or in any fund of a body corporate, company or society, or

(ii) to a deposit in a financial institution,

(b) any debenture, deed, bond, bill, note, warrant, order or other security for money or for payment of money,

(c) a document of title to lands or goods wherever situated,

(d) a stamp or writing that secures or evidences title to or an interest in a chattel personal, or that evidences delivery of a chattel personal, and

(e) a release, receipt, discharge or other instrument evidencing payment of money;

 Section 4 (2) further defines “valuable security” as:

  (a) where the valuable security is one mentioned in paragraph (a) or (b) of the definition “valuable security” in section 2, the value is the value of the share, interest, deposit or unpaid money, as the case may be, that is secured by the valuable security; 

(b) where the valuable security is one mentioned in paragraph (c) or (d) of the definition “valuable security” in section 2, the value is the value of the lands, goods, chattel personal or interest in the chattel personal, as the case may be; and 

(c) where the valuable security is one mentioned in paragraph (e) of the definition “valuable security” in section 2, the value is the amount of money that has been paid.

How ironic that the purpose of this subsection is to clarify the intrinsic value of the security as opposed to subsection 1, which speaks only of face value. Of course this kind of clarity is required as the valuable security may be a deed to property, which is a document showing land ownership, and is therefore merely a representation of the actual property. Thus, the deed itself is a piece of paper with very little value but it represents much greater value in accordance with the value of the actual land.

For those of you wondering what “exchequer acquittance” means, the term comes to us from English law, in fact I found a similar definition of “valuable security” in the Irish Larceny Act 1861. The “Exchequer” is the Royal Treasury. Originally, the Exchequer was also a Court of Law concerned with revenue, like our Tax Court, but later merged with the then King’s Bench. As a government department, the Exchequer was in charge of the national revenue of the United Kingdom. An “acquittance” is a document, which acquits or discharges an obligation and acts as a “receipt in full.” So an “exchequer acquittance” is a receipt for payment of revenue to the government. Clearly, the relevancy of this term today is questionable. Just another example of how our Criminal Code needs to be streamlined and updated.

On that note, I will end this podcast with Shakespeare’s Henry the IV, Part I Act 3 Scene 3 and an exchange between Sir John Falstaff and the future Henry V or as he was known then, Prince Hal, wherein they discuss Falstaff’s bumbled robbery and the positive resolution of it at court. By the way, as an aside, that is a Shakespeare aside, the PBS Hollow Crown series presenting the history plays of Richard II, Henry IV Part 1 and Part 2, and Henry V is outstanding and very worthwhile to watch. In any event, Hal then boasts “I am good friends with my father and may do any thing.” Without skipping a beat, Falstaff urges the Prince to “Rob me the exchequer the first thing thou doest, and do it with unwashed hands too.”

Thank you and come back next time when we continue our discussion of section 4 of the Criminal Code and whether or not possession is really nine-tenths of the law.

 

 

 

 

 

Episode 5 Section 4 Of cabbages and Kings and Stamps!

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.

THOUGHTS ON THE INTERSECTION OF LAW AND ART: LEGAL ARCHITECTURE

I recently read a compilation of essays, in a work from an outstanding publishing house Sternberg Press, Thousand Eyes: Media Technology, Law and Aesthetics, on the connection between contemporary art and law, particularly courts of law, where the art theory concept of “representation” and the physical and legal attributes of law intersect through the courtroom. From that connection the comparative analyses are many and varied: the courtroom as theatre, evidence as iconoclastic images, and the changing role of new media. But what struck me was the concept of the law court as a bounded space, which reinforces the separateness of the law world from the real world.

In his essay In Between: Power and Procedure Where the Court meets the Public Sphere, Richard Mohr observes the fixity of our courts within a self-constructed bounded space and the resultant tension between those inside, the legal players, and those outside, the public. He argues this border between the two is not just physical but conceptual as well. Not only does the courtroom have a fixed address with an enclosed space but the rules or procedures too emphasis closure through the rules of evidence, which permit only certain forms of approved facts into its space. This closing off of the law not only impacts public access but also public perception.

Other essays in the collection go further and suggest the advent of new media and the relaxation of media in the courtroom has expanded the courtroom walls and changed the static concept of law. However, one of the editors, Judy Radul for whom the essays were published to celebrate her World Rehearsal Court exhibition, in her essay, Video Chamber, argues to the contrary: in her view, the ability of the courts to be connected elsewhere through, for example, CCTV, makes the court an even more enclosed space “monolithic and unmovable” as the court hunkers down, forever fixed in place, as the images come to it.

The legal architecture then becomes an impactful aspect of the law, particularly in light of the access to justice issues Canada has been recently facing. It may also impact how the Supreme Court of Canada view evidentiary rules: should they unbind the courtroom or provide further enclosure?

The connections between art and law may, at first glance, appear superficial: yes, the lawyers are like actors in a Shakespearean play, albeit their backs are usually to the audience. However, when viewed through the lens of art theory, the representational force of the law cannot be doubted. This is something to think about when arguing in the bounded space of the law.

 

 

 

 

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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

What’s Up At The Supreme Court of Canada: A Peek Into The February Criminal Hearing List

Four criminal appeals, from across the country and spanning diverse areas of criminal law, will be heard by the Supreme Court of Canada this month.

The Belanger case from Quebec will be the first to be heard on February 12. This case raises the issue of objective mens rea in the charge of dangerous driving causing death. As discussed in previous postings, in recent decisions the SCC has increasingly shown favour with objective mens rea as a standard of liability in criminal law. The Belanger case will be of great interest to see if this trend continues.

Next to be heard on February 15 is the Blacklaws case from British Columbia, which raises the issue of severance of counts where there were two different complainants, both sex trade workers, but the circumstances of each incident involved similar facts. Although the majority of the BC Court of Appeal allowed the appeal against the refusal of the trial judge to sever the counts, the Chief Justice disagreed and found no error. 

The Ontario case of Youvarajah will be heard on February 20. This case raises an interesting issue of whether an Agreed Statement of Facts signed and used as a basis of a guilty plea for one accused can then be admitted in the co-accused’s trial for the truth of its contents.

Finally, the Newfoundland Taylor case, to be heard on February 22, turns on the adverse inference a trial judge can draw when alibi evidence is not disclosed in a timely manner. In this case, the trial judge specifically rejected Taylor’s evidence at his sexual assault trial, where credibility was the sole issue, on the basis that his denial amounted to an alibi, which had never been previously disclosed to the police.

Significantly, all of these cases raise complex and novel issues in the area of criminal law without raising Charter issues. I will discuss each case in detail as the hearing dates draw near. 

What Are Human Rights Anyway?

Today is International Human Rights Day, the day to commemorate the signing of the Universal Declaration of Human Rights on December 10, 1948 (see my previous blog on the issue). This event has changed the world in many ways as we struggle to understand what it means to have human rights and as our governments struggle to implement that societal vision.

To understand the concepts involved and the values at stake, we need to start from the essentials: what does it mean to be human? As simple as this question might sound, it is so very complicated and so difficult to answer. It is like describing the colour green without reference to something that is green. Also, such a description depends on the author’s perspective: a scientist may describe being human physiologically or even evolutionary, a psychologist may describe a human emotionally, an anthropologist may describe a human collectively, and so on. Therefore, to come up with an encompassing universal concept of being human is challenging. So, instead of defining humanity, we have concentrated on defining what humanity universally enjoys and expects or has a right to enjoy and expect. Hence, the idea of human rights is born.

But what does having “human rights” mean? Let’s start with the conception of a “right.” One meaning of “right” is an act, which is morally or socially correct or just, such as right vs. wrong. But in the realm of human rights this definition is weak: is it “right” to open a door for someone who has his or her hands full? Yes it is, but the person has no special right or claim on you to open the door. In order to ensure our “rights” will be respected consistently and in order to give “human rights” the special weight it deserves, a right in the human rights context must involve a justified claim or a special entitlement for something, which can be enforced against a person or institution.

Rights however differ from a privilege or a gift: often for a privilege, like a driver’s license, one must apply and show themselves worthy of receiving the privilege. Therefore, having a privilege is discretionary and not given out to all. In contrast, human rights are universal and should not be dependent on any given scenario.

Furthermore, when one possesses a human “right,” one is specially entitled to do or to have or to be free from something, but also entitled to enforce claims against others to act or refrain from acting in certain ways. Thus, the claiming of a right involves, by necessity, someone from whom to claim the right. In other words, we need a society in order to give human rights meaning. Robinson Crusoe, for instance, while alone on the Island has “human rights” but they are irrelevant until Friday shows up.

This “two-way street” therefore requires a “right holder,” the person claiming the right and a “duty-bearer,” who has an obligation to respect those claimed rights. An example can be found under our own Charter of Rights and Freedoms, which is a human rights document outlining an individual’s rights, which then can be claimed or enforced against the State. According to s.10(b) of the Charter, I have a right to counsel upon arrest or detention. This is a special claim I possess or have but I need another actor to fulfill my right. Therefore, it is the State who must act to fulfill my claim; called a positive right. Oftentimes, in the realm of human rights, the State must refrain from acting as in the freedoms found in the Charter such as a person’s freedom of expression under s.2(b); known as a negative right.

It should be noted that our rights under the Charter are not absolute. Rights compete with one another and, at times, contradict with other just as viable rights. Thus, it is this balancing of rights, not the existence of rights, which forms the biggest part of our human rights discourse.

Now, we understand what “rights” mean but from where do human rights come? Human rights arise out of our humanity or human nature: I am human therefore I have human rights. Human rights may consist of the basics to keep us alive but they are much more than that: human rights are not needed for life but for living a life of dignity. What a life worth living looks like comes from a particular vision of what that life should look like. This moral vision then becomes integrated into the political and legal institutions of a society in order to give those human rights the special claim or force needed to make them meaningful. 

Human rights therefore are described as inalienable rights, which everyone equally enjoys. Rights are called inalienable, not because one cannot be denied access or enjoyment of human rights, but because losing these rights is morally impossible. Human rights cannot be given or taken away even though historically institutions have tried such as in Nazi Germany and in slave-holding countries.

There are however difficulties in the application of human rights. It is almost impossible to come up with a list of human rights with which all humanity would agree. Most people can agree on the essentials such as food and shelter but it is when the concepts become less concrete that disagreements arise. Even if we can agree on the right to life, liberty and security of the person (s. 7 of the Charter), we would all have a different conception of what those grand words mean. Does that include universal healthcare? Does that include the life of a fetus? And so on, and, quite frankly, on to the courts to figure these nuances out.

Now we understand human rights better (or maybe for worse?), we can enjoy International Human Rights Day. In the end, it is a celebration of who we are, of who we want to be, recognizing that we are “all in this together” merely because we are human. 

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.

 

Extraditing Magnotta: Explaining the Extradition Treaty

Not unexpectedly, Luka Rocco Magnotta, aka the alleged “body-parts” killer, was arrested, without incident, in Berlin, Germany. As he was arrested outside of Canadian jurisdiction, Magnotta may only be transferred to Canada pursuant to treaty agreements between the two countries. The Treaty now in force dates from 1979 and governs both the extradition of fugitives facing charges (or having been convicted facing sentence) in Canada when found in Germany as well as those fugitives from German justice found on Canadian soil.

In 2004, a supplementary Treaty was implemented between Canada and Germany.  For the most part, this supplement merely clarifies or simplifies the language of the original, but there are a few substantial changes to the document, which I will note. One significant change is a broadening of offences subject to extradition: in the original Treaty, an extraditable offence needed to be listed on a Treaty, while in the amended version, the schedule or list requirement is deleted. Thus, any criminal offence, which is a criminal offence in both Germany and Canada, is subject to the Treaty. In extradition, it is the substance of the crime, which is relevant, and therefore it is of no matter that the crimes may be described differently in each country. As long as the essential elements of the crime are similar, the crime is subject to the extradition process.

There are, of course, some exceptions. For instance, extradition will not be granted for “purely military” offences. Extradition may also be refused if the charge is purely politically motivated or if the charge merely persecutes the fugitive on the basis of race, religion, nationality or political opinion. Some offences are excluded from these exceptions, such as murder and kidnapping.  Also, if the fugitive is a national or a citizen of the country in which he or she is found, and is not therefore a national of the requesting country, the fugitive will not be produced to the requesting country, but prosecuted in the found country.

Additionally, extradition shall not be granted if the alleged fugitive has already been tried and acquitted for the crime or the fugitive has already completely served his or her sentence for the offence. A significant change from the 1979 Treaty is the treatment of situations of amnesty: now extradition may be refused if the fugitive was pardoned or received amnesty for the crime. In the 1979 Treaty, a fugitive was still subject to extradition in cases of amnesty.

Consistent with Charter decisions, the treaty suggests extradition “may be refused” should the crime be one for which the death penalty may be imposed where the other country does not impose the death penalty. However, a fugitive may be extradited, in those circumstances, where the requesting country agrees not to impose the death penalty.

A further possible ground for refusing extradition is on the basis of a conviction of an offence of “contumacy.” The term refers to a disobedience of a court order or a refusal to obey an order, such as a summons. An example would be where the accused failed to appear in court for his trial on a criminal matter and he was convicted in absentia or in the person’s absence. In this instance, extradition may be refused unless the requesting state agrees to permit the fugitive to test the underlying conviction as well. This safeguard ensures that the fugitive’s conviction will be proven properly, based on the facts and evidence and not on the basis of a mere failure to appear. 

There are also various procedures to be followed in requesting extradition under the Treaty. Previously, the request must come through diplomatic channels, but the 2004 amendments now requires the request to come from the respective departments of justice from each country, yet still permitting the use of diplomatic channels where appropriate.

Procedurally, documentation must be sent to support the request. Such information is required to establish the identity of the fugitive, a description of the crime alleged, and proof a warrant for arrest is outstanding. In certain circumstances, if required, information justifying the charges may be sent and presented as well. If the information provided is insufficient, instead of discharging the fugitive for want of prosecution, the state must now request the needed information from the requesting state.

When extradition is finally granted, the fugitive is surrendered to the requesting state’s authorities with the requesting state bearing all expenses of transport. This surrendering may be postponed if the fugitive faces charges in the surrendering state or the state may, as provided by the 2004 amendments, “temporarily” surrender the fugitive to be returned at a later date.

There is a further caveat to the extradition process, which is known as the “rule of specialty.” This rule requires that the fugitive be only tried in the requesting state for those crimes for which he was surrendered. He may face trial on no other charges. This requires particular attention by the requesting state to ensure that all appropriate charges are before the extradition court.

What does this all mean for the Magnotta case? Press reports have suggested Magnotta will be consenting to his surrender to Canada. Considering the provisions of the Treaty, the charges for which he faces, the fact he is a Canadian national, and the documentary evidence, which is readily available to be sent to Germany, Magnotta’s consent makes sense.  On extradition for this charge there appear to be no valid arguments, which could be raised, to stop his surrender to Canadian authorities. Even with consent, it will take some time before Magnotta will be sent back. Formal requests do still need to be made and certain documents are required to be sent and signed. Additionally, in light of the Treaty provisions, the Department of Justice will need to first complete the Canadian investigation to ensure Magnotta will be surrendered for all offences he might possibly face in Canada. Only then, will Magnotta return to face the real issues of guilt or innocence.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In Defence of Civil Disobedience: Part Two

In my previous posting, I outlined the historical significance of civil disobedience, tracing the creation of the phrase from Thoreau, who turned an innocuous poll tax into a deeply personal articulation of one’s beliefs, to the present iteration of collective disobedience against government policy. Today’s posting will take these concepts a step further into the legal realm.

The definition of “civil disobedience’ as found in Merriam-Webster’s dictionary, suggests the act is a “non-violent” form of group protest. This definition conjures up a vision of peaceful sign-bearing protesters, shouting slogans, and holding hands in solidarity before dispersing for a musical interlude and barbecue. This peaceful concept of civil disobedience no longer seems to fit the bill as today’s more complicated issues require a much higher shock quotient to get the attention of the media and then ultimately the government. Hand in hand with this more virulent form of disobedience is the more intransigent reaction by the government: as crowds shout “hell no, we wont go,” the government lawyers are busily drafting court applications for injunctive relief.

Injunctions, as I thoroughly discussed in my previous posting on the Occupy Movement, are a favoured response by the government as, if successful, results in a court imposed order for the disobedience to stop and then turns the protest into legally recognized unlawful conduct. This can have enormous repercussions as an injunction can not only effectively shut down any future protests, but can also provide legal precedent on the ultimate issue at stake: the fundamental freedoms protected under s. 2 of the Charter of Rights and Freedoms involving s.2 (b) freedom of expression rights, s. 2(c) freedom of peaceful assembly, and s. 2(d) freedom of association. As discussed in previous postings, the Charter is not absolute and the Courts try to balance societal rights with the individual freedoms found under section 2. As a result, although the Courts may find a violation of s. 2 rights by the government seeking an injunction, where societal harm or violence is caused, the Courts tend to find such injunctions a reasonable limit in a free and democratic society under s.1.

The government may also respond to civil disobedience through the criminal justice system. Typically, such response is reserved for the clearest examples of law breaking such as the destructive effects of a rioting crowd. In those cases, the law is most severe, imposing harsh sentences on those who destroy property and harm others under the flimsy disguise of a "cause".

Criminal contempt charges may also be laid when injunctions are not obeyed. This scenario is subtler as it does not involve harmful action but involves inaction: a failure to obey a law, which has been declared valid by the courts. The justice system deals with this form of disobedience slightly differently. Here again Charter violations may not provide a valid defence, but may be taken into account as a mitigating factor on sentence.

To raise a valid defence on a criminal charge arising out of civil disobedience is a challenge as any moral or ethical arguments for committing the prohibited acts do not change the essence of the crime committed. The best way to explain this is through the Robin Hood scenario. Robin Hood and his Merry Men stole from the rich to give to the poor. When we hear this story we usually give Robin the “thumbs up” for fighting against tyranny and greed. We also cheer as he takes the gold from evil King John, knowing that the good King Richard will absolve Robin of any guilt. But, in terms of criminal law, a bandit is a bandit no matter how you slice it. Although Robin Hood may have a valid moral argument for his actions and therefore an excellent motive for breaking the law, the law is clear: the guilt act and the guilty mind are present and therefore Robin Hood is guilty of highway robbery. He may receive a suspended sentence from a sympathetic court but he is still a convicted felon.

There is, however, a possible defence available. In Perka v. the Queen, the Supreme Court of Canada, when considering the common law defence of necessity, suggested such a defence may be a valid defence to acts of civil disobedience. In the necessity defence both the prohibited act or actus reus and the fault requirement or mens rea is complete. Therefore, all essential elements of the crime have been fulfilled and the defence merely excuses the blameworthy conduct.

Essentially, the accused acknowledges the wrongfulness of the action but in the circumstances the accused should not be punished for the crime. Excuses are typically limited to emergency situations wherein the accused had no choice but to break the law. As our criminal law punishes only those who choose to act criminally, an excuse can exonerate an accused of a crime. In the necessity scenario, the accused must choose between two evils.

However, such exoneration comes with a price: the defence of necessity is only accepted in certain, very limited circumstances. There are three elements to the necessity defence. Firstly, the accused must be facing imminent peril or danger. Secondly, there must be no reasonable legal alternative but for the accused to break the law. Thirdly, the harm inflicted by committing the crime must be proportional to the harm, which would have been caused if the accused followed the law and not committed the crime. As a result, necessity is rarely advanced and even rarely accepted as a valid defence. When it is accepted, the Court views the behaviour as a form of moral involuntariness.

How does the necessity defence work in practice where there are acts of civil disobedience? The best case examples are not from usually staid Canada, but in the protest fuelled United States. In the 1969 case of United States v. Moylan, the appellants were charged with the destruction of government records, records they seized from a government office and burned with napalm in protest of the Vietnam War. Counsel for the defence, the “radical lawyer” and activist William Kunstler, argued that the jury should have been instructed that they “had the power to acquit even if appellants were clearly guilty of the charged offenses.” This “right’ was based in moral arguments as the appellants were protesting a war “outrageous to their individual standards of humanity.” Furthermore, the war itself was illegal and therefore citizens had an obligation, in the name of justice, to break the law in order to enforce the law.

The United States Court of Appeals Fourth Circuit Judge Sobeloff, took a page from the Robin Hood myth and found no matter how sincere the appellants were in their actions, and no matter how strong their moral arguments were, they still committed crimes for which they must be accountable. In upholding the law Justice Sobeloff remarked:

To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law, which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.

The best known case of a jury being invited by defence to eschew the law and decide a case on their own moral conscious, was in R. v. Morgentaler, when Morris Manning, Q.C. invited the jury to acquit Dr. Morgentaler of violating the "bad" abortion law. The Supreme Court of Canada chastised Manning for his emotional appeal, finding that such an invitation would “undermine and place at risk” the jury system. In support of this position, Chief Justice Dickson referred to the British 1784 criminal libel case of R. v. Shipley and quoted Lord Mansfield as follows:

So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.

To be free is to live under a government by law . . . . Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.  ...

In opposition to this, what is contended for? -- That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.

Certainly, it is valid to be fearful of a capricious jury who are guided by their own prejudices and sensibilities but there is an attraction to the ability of a jury to “do the right thing” and acquit in circumstances where the law is unjust, not just unfavourable, but unjust. When I was a student at Osgoode Law School in 1983, Morris Manning came to the school and reenacted his Morgnetaler jury address, an address which did result in an acquittal for the doctor. It was a moving piece of advocacy, which did stir the moral conscious. In the end, I was questioning the moral and legal basis for a law, which could send Dr. Morgentaler to jail. Ultimately the court system did work for Dr. Morgentaler, due to our Charter, the best defence against tyranny and injustice.

What does all of this mean for the ongoing student protests in Quebec? It is unclear where the Quebec government will go. Certainly the new laws they have introduced to stop further protest has only fueled more acts of civil disobedience. As with the occupy movement, these acts have gone viral and the issue has become one of students’ rights and the moral obligation to speak out against seemingly “bad” laws. However, to speak out against laws is much different than acting out criminally. It will ultimately be up to the Courts to draw the line between the two.

 

 

The Incivility of Civil Disobedience: Part One

Civil disobedience is a familiar phrase these days what with the Occupy movement occupying public space and now University students protesting higher tuition rates. The term “Civil Disobedience” was coined by American author, writer, poet, naturalist and all around polymath Henry David Thoreau as the title of an essay originally published in 1849 as "Resistance to Civil Government." At the time, Thoreau was the voice of a country struggling with itself, both politically and morally. His was a voice of reason but also one of deep moral principle. In 1846, Thoreau was arrested and imprisoned for a failure to pay his poll taxes. Poll taxes were levied on all eligible voters as a prerequisite of voting and were the main means of raising funds for local governments. The poll tax, which anti-slavery abolitionists like Thoreau refused to pay, was levied to fund the Mexican War in a bid to extend American slave territories. The amount of the tax, even at that time a paltry $1.50, was viewed by Thoreau as too high a moral price to pay. Although his Aunt, against his wishes, paid the fee and Thoreau was released after only one night in jail, his essay on the experience remains today the first in a line of many personal actions of civil disobedience. I say “personal” as there was already an American example of group disobedience in the form of the famous Boston Tea Party, an act of disobedience heard across the ocean by King George III and the British Parliament.

Martin Luther King Jr., in another example of personal disobedience to the law, would also pen a famous piece of prose in the Letter from the Birmingham Jail. In this acerbic response to his critics, King tackles head on the moral and ethical issue of obeying “just” and “unjust” laws. To support his actions, King refers to St. Augustine’s position that an “unjust law is no law at all.” He also uses as a stark analogy the ultimate “unjust” laws of Nazi Germany. The letter became a touchstone for the civil rights movement and the idea that morally “unjust” laws should not and could not be followed became a permanent fixture in the American psyche.

Unsurprisingly, in Canada, acts of civil disobedience have been most pronounced in Aboriginal rights issues such as in the Burnt Church conflict involving the traditional fishing rights of the Mikmaq nation of Atlantic Canada. Another high profile case of civil disobedience was the Ipperwash Crisis and the police shooting death of Native activist, Dudley George.  Of course, more recently, the Occupy Movement is another example of collective disobedience. Canadians even have a “how-to” book for such practices with the Protestors’ Guide to the Law of Civil Disobedience in British Columbia. This document is easily accessible on-line and is written by Leo McGrady Q.C., a well-known BC lawyer specializing, on the union/employee side, in labour relations. No surprise, as BC has seen more than its share of civil unrest relating to teacher labour issues. Read my previous blog on the Legal Politics of Seussville for more on the issue.

With this little history lesson, my next posting will deal with the legal aspects of civil disobedience. How have the Courts reacted to this issue? Is the Charter engaged when acts of civil disobedience are stopped? And finally, what kind of legal defences are available when such acts become subject to the criminal courts?

 

Let’s Talk About: Property Rights & The Canadian Charter of Rights and Freedoms

The Alberta election is heating up and is soon to be decided as Albertans go to the polls on Monday, April 23, 2012. One of the many controversial issues raised by the Wildrose leader, Danielle Smith, is on property rights and the absence of such rights guaranteed in the Charter. Smith, on her Wildrose website, suggests the “fundamental role” of government is the “protection and preservation of property rights.” As part of her platform on this “fundamental” issue is the promise her government would “entrench property rights.” She would do this by implementing an Alberta Property Rights Preservation Act, entrenching “basic property rights in the Alberta Bill of Rights” and spearheading “a national initiative to add property rights to the Canadian Charter of Rights and Freedoms.” 

Really? Are we really to believe that this “pressing” issue of property rights should be shoulder to shoulder in our Charter along with our fundamental freedoms such as freedom of expression, freedom of conscious, and equality rights. Should our preoccupation with individual, political, and democratic rights take a back seat to issues of ownership and possession? What will this mean for our criminal law and the ability of the government to reasonably search and seize property for a criminal investigation? Does the corporeal trump the spirit? Is property, which not everyone has the ability to own, require the special attention and protection of our most Supreme laws? Why should property rights, which were specifically and deliberately left out of the Charter, now be placed back in?

Not that we would ever see the unanimous agreement to do so that is required before the Charter could be amended. Do we need the kind of property rights litigation, which occurs in the United States, where property rights were specifically enshrined in their Constitution and viewed as sacred as life itself? And if we feel we do want this protection, are we prepared for the result. For a good discussion on the history of American Constitution property rights, read the SCC decision in Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.).

Danielle Smith may have taken a page from her namesake, Adam Smith’s, Wealth of Nations, with a call to protect life, liberty and property but fails to recognize the positive obligation protecting property would place on the government. Thus, we would need a robust and interventionist government, willing to step into the property rights fray. Entrenching property rights would mean not less government but more government, as the Courts would be busy reviewing the government’s ability to regulate and protect the national interest in the name of the economy. Take for instance the issue of natural resources and the role ownership of such resources would play under a property Charter rights scenario.

Canada does in fact have some experience with protection of property rights as section 1(a) of the Canadian Bill of Rights, 1960, the statutory, quasi-constitutional precursor to the Charter, protects “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.” While this still enacted statute can still be used to “protect” property rights, the legal interpretation of this right has not provided the protection the Wildrose maintains they can provide if elected. 

But would such entrenchment of property rights really “protect and preserve” an individual’s right to their property as touted by the Wildrose? It is instructive perhaps to look at the case law on property rights in the Bill of Rights. This passage of the Bill of Rights was considered by the Supreme Court of Canada rather recently in the 2003 Authorson case, in which disabled veterans attempted to require the federal government to pay past interest on pension funds despite legislation minimizing Crown liability. The end result of the decision, dismissing the veterans’ claim, was to uphold Parliament’s right to expropriate property without compensation.

Legally, an “entrenchment” of property rights does not in and of itself suggest an individual’s right to property would be absolutely guaranteed. Indeed, considering all of our rights under the Charter are not absolutely protected, any “new” Charter rights would be treated similarly. According to s. 1, all of the Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  In addition, both Parliament and each provincial legislature, including Alberta, have the authority to enact legislation contrary to the rights guaranteed in the Charter through the Charter notwithstanding provision contained in s. 33.

Therefore, the Wildrose is promising, in a very heated election, something they cannot themselves guarantee. Undoubtedly these are the best promises to make: no one can take them to task for merely promising to try. Interestingly, the Authorson case was written by the then Alberta appointment to the SCC, Justice Major, who is now trying to sort out the MLA compensation debacle. Of course, the proponents of property rights would suggest it is the poor wording of the Bill of Rights, offering property protection in accordance with due process, which is the problem and which can be easily fixed.

But even if the Charter was amended and property rights were absolutely protected as desired by the Wildrose, the question still remains whether or not protecting property rights is in the best interests of Canadians. If we say “yes” to property rights, then we must be prepared for all kinds of litigation overrunning our justice system such as: litigation on the right of the government to tax individuals; litigation on the government’s right to make decisions on natural resources; litigation on intellectual property rights including copyright and access to information; and litigation regarding criminal law and search warrants as discussed in the SCC case of Quebec (Attorney General) v. Laroche. We could even see spill-over litigation in the area of economic rights, which traditionally has been unprotected by the Charter as discussed in the SCC Gosselin case, which could put Canada’s economic health at risk by promoting the financial sovereignty of the individual at the expense of a strong economy and healthy society.

Thus, in the end, we must decide if property rights are worth protecting in our country knowing the possible legal pitfalls, which may ensue. Let’s ensure the next thirty years of Charter litigation promotes our fundamental freedoms as individuals of choice and free will, entitled to respect and dignity, instead of a document weighed down by possessory rights and self-interest.

Are You Listening to This? The Constitutionality of Interceptions of Private Communications In Exceptional Circumstances

Justice Moldaver and Justice Karakatsanis, writing for an unanimous court in the Tse case and their first decision as Justices of the Supreme Court of Canada, found s.184.4 of the Criminal Code, which governs investigatory interceptions of private communications in “exceptional” circumstances, lacking in the constitutionally required safeguards required for such interceptions. According to the Code, “exceptional” circumstances refers to the situation where a peace officer is facing an “urgent” situation whereby he or she is reasonably unable to follow the normal procedures outlined in the Code for such interceptions.

What would these normal procedures require? First, we must step back from the section and pause to consider the context. Section 184.4 is in Part VI (6) of the Criminal Code relating to “invasion of privacy,” or when a peace officer wants to investigate a criminal matter by using an investigative technique involving the surreptitious interception of private communications. In other, more colloquial terms, the police want to “spy” or “eavesdrop” on a targeted individual, whom the police believe on reasonable grounds to be committing or planning to commit a crime. As we know from television and movies, spying is a very high tech activity requiring the most cutting edge devices such as wiretaps accessed by loads of smart looking mechanical equipment found in plain white cube vans with cool looking techies wearing enormous noise-cancelling headphones. Also present is the ubiquitous computer laptop, as today’s savvy cop needs to use the best in order to combat the even technologically savvier criminal.

As great as these techniques look on the big screen, they do not translate well in the constitutional setting; a context, which takes individual rights seriously, and violations of such rights even more seriously. In our Charter, through sections 7 and 8, the state is required to respect the dignity, autonomy, and integrity of the individual as a defining element of individual freedom. However, with this state obligation, as Pierre Trudeau so eloquently stated “there's no place for the state in the bedrooms of the nation,” comes the competing need to protect society from harm through state-sponsored police investigation and protection. It is the judiciary’s role to determine the appropriate balance between these competing rights through a generous and flexible interpretation of the Charter.

As a result, the starting point in the Criminal Code for invasion of privacy is to create an offence where private communication is intercepted by any means. Private communications are any oral, telephone, or radio-based communication made in the context of a reasonable expectation of privacy. Thus, the originator of the communication intended the communication to be made to another person, with an expectation no one else other than the intended receiver would hear it. Any non-consensual interceptions to such private communication are therefore unlawful and contrary to section 184 of the Criminal Code.

There are two exceptions to the rule, wherein the interception is unlawful. One scenario involves the consent to intercept by either the originator or the receiver of the communication. The other scenario, which is of interest in the Tse case, contemplates a lawful interception where the investigators obtained prior judicial authorization to intercept the communications in accordance with the procedure as set out in the Criminal Code. The application to a Judge for such an authorization is described in section 185 of the Criminal Code.

The application procedure is rigorous: it must be made in writing, it must be made before a superior court judge or a designated judge, it must be signed by the provincial Attorney General or the Minister of Public Safety and Emergency Preparedness or a duly authorized agent specially designated in writing, and must be accompanied by a sworn document (affidavit) of the investigating officer. 

In turn, this affidavit, based on the information and belief of the investigator, must include the following information: the facts justifying the authorization should be given; the particulars of the alleged crime; the type of communication to be intercepted; the names, addresses, and occupations, if known, of all the persons intended to be intercepted together with the reasonable grounds to believe such interception may assist the investigation; a description of the place, if known, where the communication is to be intercepted; general description of how the communication will be intercepted; the number of times, if any, such an application for interception has previously been made under the section and the specific details of that prior application; the length of time for which the interception is required; and why other investigative techniques would not likely succeed or why it would be impractical to use other techniques due to the urgency of the situation or if other techniques were tried and failed, what those other investigative techniques were and why they failed to work.

Even if the above procedure is followed to the letter and even if the peace officer has fulfilled all of these pre-requisites, the application Judge, under section 186, must not issue an authorization unless her or she is satisfied that it is in the best interests of the administration of justice to issue the authorization to intercept and that other investigative techniques have been tried and failed, or are unlikely to succeed, or urgency requires this technique.

The steps needed and the information required before an authorization is issued emphasizes the status quo of non-interception and provides a constitutionally permissible exception to the general rule.

Now that we have stepped back from the section at issue in the Tse decision to look at the broader context, we can appreciate the constitutional deficiencies found in s.184.4. First, as earlier discussed, s. 184.4 is an exception to the exception found in s. 185. Section 184.4 permits a peace officer to intercept a private communication in prescribed exigent circumstances where: the peace officer believes on reasonable grounds that an authorization cannot reasonably be obtained and the peace officer believes on reasonable grounds the interception is “immediately necessary” to prevent an “unlawful act” that would cause “serious harm” to person or property and where either the originator of the communication or the receiver of the communication will cause the harm or is the intended victim of the harm. That’s it. There is no requirement for prior judicial authorization. It is the investigator, not an unbiased judicial officer, who makes the determination of the urgency of the situation.

All the safeguards found in sections 185 and 186 seem to disappear as “urgency” trumps “privacy” in s. 184.4.  Not so according to Justices Moldaver and Karakatsanis. In their view, certain aspects of the section pass “constitutional muster” as it provides an appropriately flexible authorization approach in dire or emergency circumstances. However, this appropriate response can only be found by stepping back once again from the section and looking to s.188.  This section contemplates a “stop-gap” authorization, which is issued in urgent situations where an interception is required before there is an opportunity to apply for an authorization under s.185. This “follow-up” authorization must be sought for the s.184.4 situation as soon as is practicable to minimize the time in which a non-authorized interception is at play, thereby maintaining the rigours of the interception exception.

But wait, did the SCC not find s.184.4 invalid and contrary to the Charter? Yes, but in a very limited way, which protects the integrity of the section and signals to the legal community that crime fighting is back on the Agenda with the Charter’s full approval. The constitutional concern with the section is not the lack of judicial approval for an interception, as that judicial-less state would last only for a short time, but it is the lack of notice, which comes after the interception is used, to the intended targets that causes constitutional concern. No notice to those involved means a lack of oversight of the use of police powers. No notice means a lack of disclosure, which in turn means no ability to take the matter before a Judge to determine the appropriateness of the extreme police actions. It is this failure, which the Harper Government has twelve months to rectify. This is an easy fix with the SCC giving explicit instructions on how to comply.

This telling decision, written by new appointments, gives us some insight into the future. The Charter has recently celebrated its 30th anniversary without much fanfare. This similarly low-key decision reiterates the now familiar Charter values of privacy and oversight but at the same time reinforces the State’s interest to combat crime. The Tse decision appears to provide an interpretation that presumes constitutionality instead of requiring proof of it. It seems to prefer self-referential statutory interpretation as opposed to the trail-blazing early Charter years when Chief Justice Dickson and Madame Justice Wilson wrote sometimes blistering commentaries on the role of the State in protecting Charter rights. Whether or not this is a trend will be seen in the next SCC Charter decision.