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

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

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

The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada – Text Version!

The presumption of innocence – the concept that an accused is presumed innocent until proven guilty - is easily the most well known legal principle. As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool. It has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture.

Indeed, as an example of the ubiquitous nature of the presumption of innocence, we can find the concept used as a title of a book, such as in Scott Turow’s novel, Presumed Innocent and the movie version with Harrison Ford. Or used as almost a character flaw as in one of my favourite legal literary heroes, Rumpole of the Bailey, written by John Mortimer Q.C. In those stories, Horace Rumple, the rumpled everyman barrister, finds personal solace in his belief in “the health-giving qualities of claret, of course, the presumption of innocence, and not having to clock into chambers in the morning.” In the classic play/movie 12 Angry Men, when Juror #8, played by Henry Fonda, reminds Juror #2, played by John Fiedler, that “the burden of proof is on the prosecution. The defendant doesn’t even have to open his mouth. That’s in the Constitution,” we nod our heads in agreement and relief. Although many of us could not say which section of the Charter (s. 11(d): “to be presumed innocent until proven guilty”) encapsulates this concept, we all take comfort in knowing it is there.

But there is another place where the presumption of innocence is recorded in Canadian law and that is section 6 of the Criminal Code, which is entitled “presumption of innocence,” the first part of which reads as follows:

Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,

(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 of the offence; and

(b) a person who is convicted or discharged under section 730 of the offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

Now, that’s not really the “presumption of innocence” we have come to expect, is it? When you read this section it just does not seem to have that visceral punch I talked about earlier when reacting to the lines spoken in 12 Angry Men. It also does not seem to be conveying the deep, and almost personal societal, values underlying this fundamental premise.

First, let’s look at the wording. Unlike the Charter equivalent, there is nothing in section 6 about a “presumption” only a “deeming.” So the very word, we hang on when discussing innocence, the “presumption,” which gives the concept such solemnity, is gone. Second, there is nothing in the section about “innocence” although the title suggests it. However, as we know from my previous podcasts, in the Criminal Code the headings are there for convenience only and do not form part of the section itself. Instead, I would suggest, the section seems to be contrary to the presumption of innocence as it focuses instead on the concept of guilt and punishment. The section describes the circumstances in which the court can finally impose punishment. Now to be sure the court needs to hold off until conviction, but as soon as that pre-condition is fulfilled the sanctioning regime kicks in and punishment is not only available but also inevitable. Section 6(1)(b) continues this punishment theme by ensuring that the punishment can only be that as prescribed or authorized by law but it adds nothing to our concept of the presumption of innocence. So this section is not really about the fundamental premise of our criminal justice system, the golden thread of criminal law, but about when punishment can, and will, be meted out.

To understand why this section reads as it does, a little legislative history is in order. The section first arose in 1886 legislation on punishment entitled An Act Respecting Punishment, Pardons, and the Commutation of Sentence, and was not only subsumed into the first Criminal Code but was placed in the latter part of the Code where the punishment sections resided. The purpose of the section was not therefore to trumpet the fundamental principle of the presumption of innocence but to reinforce the applicability of punishment at the time of a finding of guilt. This concept of punishment only upon conviction was not only consistent with English criminal law but was consistent with chapter 39 of the Magna Carta which stated that:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

In the original Latin phrase of this article “nisi per legale judicium parium suorum vel per legem terrae,” the Magna Carta protects the accused from punishment without judgment of his equals and in accordance with “the law of the land.” So this idea that an accused is guilty only when he is found guilty, remained under the general punishment section of the Code until 1955, when it was moved to the front part of the Code, namely to section 5(1), but was still viewed as a punishment section as it was then entitled Punishment Only After Conviction. However the wording of the 1955 section does resemble the wording we have today under section 6. It is not until the 1985 revision of the Code, when the section was repealed and reinvigorated as section 6 that it becomes the more venerable presumption of innocence. Of course this reconstitution (forgive my pun) came after the 1982 enactment of the Charter of Rights and Freedoms.

Understanding this legislative history does give us a better sense of how it came into the Code but why it was renamed the presumption of innocence is an unanswered question requiring deeper investigation than an Internet search. Certainly, looking at case law, this section is rarely invoked as authority for the principle of the presumption of innocence. A quick survey of cases reveals there are only a few such cases (these cases can be found here, here, here, and here) where section 6 was relied upon as propounding the concept but always invoked with the constitutionalized version found under s. 11(d) of the Charter.

Although I cannot explain why this presumption section is so named, I would like to take a few moments to consider where the concept of the presumption of innocence arose in the first place. In my earlier posting on the issue, I suggested, through the academic writings of George Fletcher that the concept actually migrated to criminal law from the English civil law. I do not want to return to that discussion, instead I want to take us to the moment when the presumption of innocence becomes imbued with the gravitas it now enjoys – the particular moment when the presumption of innocence transformed into the fundamental principle it is today. I have already alluded to that moment earlier in this podcast when I described the presumption as the “golden thread of criminal law.” In first year law school there a few seminal or landmark English cases we discuss and end up knowing virtually by heart. One of them is the case where this “golden thread” metaphor is first used, the 1935 English House of Lords case of Woolmington v. DPP.  The facts of the Woolmington case do not concern us here but the decision, what is written by the then Lord Chancellor of Great Britain, Viscount Sankey, does.

In order to set the stage for this momentous decision, I need to give a quick legal backgrounder on Lord Sankey and the great impact he had on Canadian law. After the Supreme Court of Canada in 1925 found women were not “persons” under the British North America Act and therefore ineligible to sit in the Senate, the case, known as the Persons case, was appealed to what was then the highest level of appeal, the British Judicial Committee of the Privy Council. Civil appeals to the Privy Council were abolished in 1949, while criminal appeals ended in 1933. Lord Sankey, as a member of the Privy Council, wrote the appeal decision in the Persons Case or Edwards v. Canada (Attorney-General). In the case, reversing the Supreme Court of Canada decision and finding women were indeed “persons,” Lord Sankey commented on the argument that historically women were disbarred from public office. Despite this historical fact, Lord Sankey concluded that “the exclusion of women from all public offices is a relic of days more barbarous than ours” and that “customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.” In the Persons Case there was no reason why women could not discharge the parliamentary duty of office. In terms of the efficacy of the actual British North America Act, which today we call the Constitution Act, 1867, Lord Sankey, famously remarked that the Act “planted in Canada a living tree capable of growth and expansion within its natural limits.” This metaphor of the Constitution as a living tree has taken root since the 1930 Persons Case and has become a guiding doctrine in our constitutional jurisprudence.

Needless, to say Lord Sankey has a way with words and the Woolmington case was no exception. On the issue of presumption of innocence, Lord Sankey surveyed the textbooks on the issue and was perplexed to find a suggestion that the presumption was one of guilt and the burden was on the accused to prove otherwise. After running through more cases, Lord Sankey described the fundamental importance of the presumption as:

Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception.

Lord Sankey then connects the presumption of innocence with the burden of proof, which requires the Crown to prove guilt beyond a reasonable doubt. This connection is explored in my previous blog on the issue. So, it was Lord Sankey who gave use this strong visualization of the presumption of innocence and turned the principle into something much more.

How Lord Sankey came to this golden thread metaphor is puzzling. I suggest that this metaphor must have come from the Greek myth of Ariadne and Theseus. Ariadne gave Theseus a golden thread to help him escape the Minoan Labyrinth after he killed the Minotaur. Thus, the presumption of innocence, as the golden thread of Ariadne, leads the accused out of the maze-like machinations of the criminal law.

This thread theme is reinforced by a further metaphor, which I also referred to earlier in my podcast; that the presumption of innocence is part of the “fabric” of our society. Indeed, I found a 1965 case, R v Dixon, from the then District Court of Ontario, written by Mr. Justice Robinson wherein he describes the presumption as the “golden thread” that “runs through the warp and woof and is thus firmly imbedded in the whole fabric of the administration of English and Canadian criminal justice.” When I first read this passage, not unlike a Wiki page, I thought someone added the phrase “warp and woof” for a joke. But, like a good researcher, I looked up “warp and woof” and found the following definition:

The essential foundation or base of any structure or organization; from weaving, in which the warp — the threads that run lengthwise — and the woof — the threads that run across — make up the fabric: “The Constitution and the Declaration of Independence are the warp and woof of the American nation.” This expression, used figuratively since the second half of the 1500s, alludes to the threads that run lengthwise ( warp ) and crosswise ( woof ) in a woven fabric.

So this thread metaphor is taken in a different direction but is also a good candidate for explaining Lord Sankey’s “golden thread” turn of phrase. By the way, I did take my research a little further to find other cases that have used this archaic phrase. I found only a few cases, some which were actually about fabric making but there was a use of this metaphor in two Supreme Court of Canada constitutional Division of Powers cases; Reference as to the Validity of Section 6 of the Farm Security Act, 1944 of Saskatchewan and the 2009 Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters. Notably, in the 2009 case, Mr. Justice Binnie used the phrase in a delicious quote invoking the world of the 1860s:

The current Canadian economy would be unrecognizable to the statesmen of 1867 and, to borrow an analogy from Thomas Jefferson, one would not expect a grown man to wear a coat that fitted him as a child.  The coat is of the same design, but the sleeves are longer and the chest is broader and the warp and woof of the fabric is more elaborate and complex.  Adopting a purposive approach to constitutional interpretation, as we must, what is important is not how transportation was viewed in 1867 but rather to match in our own era the level of regulation (federal, provincial or territorial) appropriate to the nature and scope of the undertaking.  Now, as in 1867, when a transportation undertaking connects or extends “beyond the Limits of the Province” its regulation is assigned by the Constitution Act, 1867 to the federal level of authority.

In 1859, Charles Dickens also used a golden thread metaphor in A Tale Of Two Cities, to suggest a strong bond of familial love created by the indomitable Lucie. Although, there is a strong affiliation between the criminal law and the presumption, I still prefer the Greek myth connection. I should recommend here my previous blog on Charles Dickens and the law called Charles Dickens Is On The Side Of Justice wherein I discuss some of the more legally minded passages of Dickens’s novels. 

One final aside on this golden thread metaphor brings us to American literature and Nathaniel Hawthorne’s Scarlet Letter, where Hester is required to sew a letter “A” onto her clothing as her punishment as an adulterer. As time wears on, Hester proudly marks her shame with an “A” made of golden thread. For Hester, the golden quality of the thread reflects the shame of the community who branded her with their cruelty.

In some way the golden thread of the presumption of innocence protects us from a similar fate – a society devoid of compassion - or as Chief Justice Dickson, as he then was, reminded us in the 1986 Supreme Court of Canada Oakes case, the presumption of innocence "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." To me, his words are indeed golden.

 

 

What Is Life?: The Unanswered Question In The Supreme Court of Canada’s Levkovic Case

This blog posting is not about Erwin Schrodinger, the famous quantum physicist and winner of the Nobel Prize. Nor is it about his most famous thought-experiment, Schrodinger’s Cat, which illustrates how the quantum world works or doesn’t work, depending on whether the cat is dead or alive. Ah, “alive.” This posting is about what it means to be “alive” or, as our Criminal Code requires, “in a living state” and it just so happens Schrodinger did have something to say about life in his book entitled What Is Life?

First, let’s step back and set up the conundrum, as I see it, caused by the wording of the Criminal Code and the lack of clarification from the Supreme Court of Canada in the Levkovic case on the issue of life. Homicide under s. 222 of the Code is where a person, directly or indirectly, by any means, causes the death of a “human being.” However, it is only culpable homicide, as in murder, manslaughter or infanticide, which can form the basis of a homicide charge. Section 223 specifies when a child becomes a “human being” and therefore when a child can be the “victim” of a culpable homicide. Under that definition, a

child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

Thus a child can be a victim of a culpable homicide at the very instance of the completion of the birthing process, when the child has fully exited the mother’s womb but with the caveat that the child must be “in a living state.” This phrase denotes life and suggests the child must be alive to be thus defined as a “human being.” However, the section continues and seems to broaden the definition by making the “living state” independent of breath, circulation, and the umbilicus connection to the mother. This too makes sense in the context of the first moments of birth, when a baby duly born transitions from embryonic fluid to air. It may take a newly born baby up to ten seconds to breathe and for the blood to circulate. In those crucial moments, according to the law, the child is a human being.

But how does this interpretation impact s. 243, an offence requiring the child to be dead? The section creates an offence where the child’s death is concealed even if the child died before or during birth. Clearly if the child dies before or during birth, the child would not be a “human being” in accordance with the definition of s.223, which finds a child is a human being where the child is completely out of the womb and in a living state. Even so, in the Supreme Court of Canada’s decision in Levkovic, Justice Fish, speaking on behalf of the Court, refers to this section to inform the meaning of s. 243 of the Criminal Code, the section creating an offence for concealing the dead body of a child. In order to determine if a newborn child was unlawfully killed, Justice Fish opined, homicide investigators would need to determine if the child would have likely to have been born alive as opposed to a stillbirth. Indeed, Justice Fish suggested

In order to facilitate the investigation of homicides, s. 243 must therefore apply to children that were either born alive or were likely to be born alive and thus capable of satisfying the Criminal Code definition of a human being in s. 223(1). (Emphasis added)

By applying the concepts of s.243 to the definitional section 223, the Supreme Court of Canada has turned life or being “in a living state” into the likelihood of life. To base a required element of an offence on “likelihood,” and to “read down” an interpretation section, which does not require such a reading to be applicable, seems to import the “vagueness,” which the SCC abhors. Instead of taking an opportunity to clarify the meaning of life in the context of death, the SCC choose to apply the catch-all likelihood test as found in the Mabior case and the Whatcott decision (see my previous blog for further discussion). What the Court fails to understand is that being alive is much different than being likely alive.

How does this connect to Schrodinger? Erwin Schrodinger’s 1944 What Is Life? book, based on a series of lectures, is part scientific, part philosophical treatise in which he applies quantum principles to biology in a search for an explanation of life. Many believe his book to be a precursor to the discovery of DNA. Life, in the Schrodinger world, is quantifiable and real as exemplified by genetic “code-script.” Although Schrodinger the quantum physicist would approve, Schrodinger the bio-theorist certainly would not.

 

Canada’s New Defence of the Person Section: Is It Too Reasonable?

Quietly, Canada’s criminal law changed dramatically, without a word of criticism, on March 13, 2013 with the coming into force of the Citizen's Arrest and Self Defence Act. Perhaps, everyone was too focused on the broadened citizen arrest powers to notice the dramatic change in law or perhaps the legal community is at a loss for words. Without fanfare or discussion, Canada’s self-defence laws, from sections 34 to 42, were swept away on March 13, 2013 to be replaced by two broad sections: the new section 34, which outlines the defence of the person and the new section 35, which is defence of property. For purposes of this post, I will be making reference to the defence of the person found in section 34 and not defence of property under section 35. Although the new section 34 appears to be broader – no more does the law distinguish between provoked and unprovoked attacks – there is a noticeable emphasis on the reasonableness of the response as the standard for assessment.

Admittedly the old sections were cumbersome and confusing: section 34(1) offered a different defence from 34(2) and they both differed from sections 35 and 37. Then there were the myriad of defence of property sections from sections 38 to 42. Self-defence, as codified before the amendments, distinguished between a provoked and unprovoked attack. Section 34(1) could only be used as a defence by an accused who was subject to an unprovoked attack by the victim and who did not intend to cause death or grievous bodily harm in responding to that attack. In those very limited circumstances, the accused could use this self-defence section if the force used was no more than necessary to repel the attack.

Subsection 2 of that same section 34 offered a different and much broader defence. The section was silent as to who started the initial assault and therefore could be used by an accused who provoked an assault as well as an accused who did not provoke the assault. Additionally, the section applied where the accused intended to cause death or grievous bodily harm or did not intend it – as long as the victim died as a consequence of the action. The accused must have a reasonable apprehension of risk of death or grievous bodily harm from the victim to use the defence. The accused must believe on reasonable grounds that he or she could not otherwise be preserved from death or grievous bodily harm other than to use the force, which resulted in the victim’s death. The assessment was not totally objective, however, as the accused must have a subjective belief that force was necessary but must have a reasonable basis for the belief. Therefore, the defence a blending of objective and subjective elements.

Self-defence in section 35 was not used as often as section 34. The section restricts self-defence in circumstances where accused, without justification, assaults another or provokes an assault. The accused must not intend to cause death or grievous bodily harm before the need to defend self arose. However, to use the section, the accused must have a reasonable apprehension of death or grievous bodily harm and had a reasonable belief that force was necessary to preserve himself from death or grievous bodily harm. Finally, the accused must have attempted to retreat from the situation.

The final defence of the person section, under s. 37, is again a broader section of self-defence, which also extends the defence to the defence of another person under the accused’s protection. This section permits force only where the accused is preventing an assault or a further assault. Although the response of the accused must be reasonable there is no requirement that there be a reasonable apprehension of death or harm or a reasonable belief force was necessary to prevent death or harm.  The only requirement is the need for proportionality and therefore the force used must be no more than is necessary to repel the assault.

There are many difficulties with these sections, including the sheer difficulty in actually reading these sections and making sense of them.

Of course, these old sections come to us through the English common law, hence the requirement to retreat in where the accused is the aggressor. The sections thus deals with the seemingly “innocent” accused differently than the “aggressor” accused. The self-defence section 35, for the aggressor accused, is much more restrictive than s.34(1), for the innocent accused unjustly provoked. Contrasting the two sections, section 35 requires the accused, although the aggressor, not to intend death or grievous bodily harm but to have a reasonable belief that he would be subject to death or grievous bodily harm unless he acted. The force used must be no more than necessary and there must be an attempt to retreat. Indeed, a very difficult section to use considering the prerequisites. However, section 34(2), as broadly interpreted by the courts, filled that gap to include virtually any situation. The interpretation was so expansive, it seemed a wonder why section 35 was required at all. However, even with s. 34(2) expanding who could use self-defence, the objective/subjective assessment ensured that only those accused who fulfilled the objective/subjective requirements could use the defence successfully.

Two major difficulties are identified with this approach: firstly, to assess an accused’s actions at a time of split-second decision-making seemed mechanical and unrealistic. For an accused faced with an aggressive victim or for an accused in a highly emotional circumstance, the requirement that the accused use no more force than necessary was difficult to determine. Thus, the law stepped back from the emotions and required an objective assessment as well. This perhaps made it easier for the trier of fact, who was not faced with these circumstances and who could not possibly appreciate the life and death decision-making arising at that instance. But, it also made it much more difficult for an accused, who made a decision at the time in a heightened situation, to be then thinking of what application force, in response to that situation, is no more than necessary.

Secondly, the self-defence laws were so limiting that it failed to allow for exceptional circumstances, such as what arose in the Lavallee case, where a battered woman killed her husband. This case, in light of the recent SCC Ryan case (upon which I wrote a previous post here) also raises issue with other defences such as duress and defences – known as excuses – as opposed to self-defence, which are considered justifications. I will not delve into the these cases, other than to say a deeper analysis of them is required in light of this new legislation.

For further explanation, justifications such as self-defence, recognize that the elements of the crime have been made out – that both actus reus and mens rea are present – but the accused actions are justified as the accused faced external pressures (in the case of self-defence from another person) which caused the accused to act contrary to the law. As the major theme of our criminal law is choice and the ability of an actor to make the right choice, such pressures effectively take away choice, leaving the accused no other choice but to act as he or she did. In a justification defence, the accused challenges the wrongfulness of an action which would technically be a crime. In the circumstances the fundamental values of society and of the criminal law are promoted by disobeying the law rather than following it. Therefore, in self-defence there is a crime but the actions of the accused are not “wrong” and therefore the accused should not be held responsible for the crime and should therefore not be punished by the criminal justice system. Of course the real question is: how far does society want to go in justifying these criminal acts? Are our self-defence laws truly a reflection of our society’s fundamental values if they do not offer a defence for a battered spouse or a psychologically bullied child?

Do these changes then rectify the two problems as identified above? On the issue of creating an artificial scenario upon which the accused is to be assessed, the new section does little to alleviate this by imposing very clearly an objective assessment of the circumstances and leaving little room for individualization. Although the new amendments do equalize the section in the sense that now “any person” can use the defence, the list of factors to be considered in assessing the reasonableness of the criminal act ensures that all of the limiting circumstances, which were clearly set out in the old sections, are now found, not as clearly, in a list of factors which must be considered by the trier of fact.

Additionally, the assessment, which was viewed under the old sections as a blending of subjective/objective considerations, now appears to be more decidedly objective. There is no longer a consideration of the accused’s subjective belief in the force used being necessary. Now, stepping back, this change should be welcome as it does move away from the idea that an accused must weigh to the niceties the level of force used at the time. However, it also takes away any assessment of the accused’s subjective belief that the force used at the time was necessary. Instead the subjective belief only goes to whether or not the accused believed, reasonably of course, that the “force is being used against them or another person or that a threat of force is being made against them or another person.” After that “concession” to human frailty, the assessment is all done through the eyes of the reasonable man in an almost regulatory offence manner reminiscent of the due diligence or all due care defence in which the defendant will be acquitted if he or she or it (corporation) acted reasonably in all of the circumstances and took all reasonable steps required to avoid the harm. The only factor missing is the burden of proof, which in a regulatory scheme is “balance of probabilities” as opposed to the higher standard of proof “beyond a reasonable doubt.” Even in the criminal law’s cherished burden of proof the concept of “reasonableness” is present!

As to whether the new section will support extraordinary circumstances of a battered spouse or abused child will remain to be seen. Again, the lack of individualization in the assessment is concerning and although one of the factors to consider in determining the reasonableness of the act involves a review of the nature of the relationship between the accused and victim, the fact this must be assessed through the reasonableness lens does not permit a full consideration of the complexities of an abusive relationship.

Only the use of this section in court with a real set of facts will enlighten us on the viability and justiciability of this new defence of the person section. However, at first blush, it appears this is yet another example of how our criminal law is becoming more objective in outlook and less like the traditional principles of individualization, which was the hallmark of the criminal law as a humane law.

 

 

 

A Balancing Act: The Supreme Court of Canada and Testifying Behind The Veil

In two concurring reasons and one dissenting reason, the Supreme Court of Canada, in the N.S. decision, has continued the Charter discourse surrounding conflicting rights. Unsurprisingly, the majority message, written by Chief Justice McLachlin, is one of balance and accommodation on a case-by-case determination. The Trial judge must weigh the conflicting rights in the context of the case with due deference to Charter values. The values, however, are flexible, adaptable, and tolerant of each other. In the Charter arena, there is no room for immoveable values, which are fixed and unbending.

This approach does, on the face, appear to be consistent with the Charter itself, which guarantees rights and freedoms but not absolutely: they are subject to the reasonable limits of a free and democratic society. This, however, is a liberal concept, a concept born in the revolutionary times of the 18th century when religion was given a tempered view in favour of scientific and provable reasoning. As a result, the question remains whether the balancing act proposed by the SCC will provide enough protection to freedom of religion/belief in an age where having a belief system is not required in a free and democratic society.

On the other hand, the traditional concept of criminal law based on the presumption of innocence and fair trial, as values to be balanced, may very well be eroded by this balancing act as well. Critics of the SCC approach might properly ask: how can the very essential core concepts of criminal law ever be subject to accommodation? Some values, those critics would argue, should never give way or they will fail to stand on their own. Interestingly, these concerns form the basis of the concurring judgment of Justices Lebel and Rothstein.

Justice Abella’s dissent is not based on religious rights as a concept to be jealously guarded, but is based on Charter values flowing from earlier Charter cases on protecting the vulnerable members of our society such as children and women. Her dissent focuses on the very real issues of access to justice and the marginalization of those less powerful sectors of our society. This viewpoint becomes even more important in light of the recent release of Wally Oppal’s Report on missing women and the trend toward dismissing the rights, or even the existence of, prostitutes, the homeless, and Aboriginal women.

In the N.S. decision, we see a microcosm of Canadian society: differing viewpoints arising out of the same context, which reflect strongly held values, but which also reflect the true legacy of the Charter as a document that encompasses, and tolerates, all. 

The Result In Canada (Attorney General) v. Bedford

The much awaited decision from the Court of Appeal for Ontario in the Bedford case on the constitutionality of various prostitution related sections of the Criminal Code has finally been released.

The majority of the court agreed with Justice Himel's lower court decision that s. 210 common bawdy house and s. 212(1)(j) living off the avails of prostitution are unconstitutional as being contrary to the principles of fundamental justice under s. 7 of the Charter.

In the matter of keeping a common bawdy house, the Court struck down the section but suspended the invalidity of the section for 12 months to give Parliament an opportunity to redraft the section in a Charter friendly manner.

The offence of living off the avails of prostitution under s. 212(1)(j) is unconstitutional in the limited circumstances of where the relationship between the prostitute and those living off the avails is not exploitive. For example, where a prostitute supports his or her family with the earnings of prostitution, the family would not be exploiting the prostitute and should not be charged under this section. This exemption would not preclude "pimps," who put prostitutes on the streets for their own economic benefit would still be subject to this subsection. 

Where the court did not agree with Justice Himel was on the issue of the constitutionality of s.213 communication for the purpose of prostitution. The court upheld this section on the basis of a previous decision from the Supreme Court of Canada (SCC) on the same issue. In that previous 1990 case, Reference re ss. 193 and 195.1(1) (c) of the Criminal Code, the Government of Manitoba referred the then new and untested communication sections to the SCC to determine if the sections would withstand a possible Charter challenge. For further discussion of references to the SCC, please read my previous posting here. The SCC found section 195.1(1)(c), the same section at issue in Bedford but numbered as s. 213(1)(c), to be contrary to fundamental freedom of expression under s. 2(b) of the Charter but saved under s. 1 of the Charter as a reasonable limit in a free and democratic society. I have discussed s.1 in relation to freedom of expression in some previous postings and most particularly here and here.

The decision is of interest in terms of the findings of the Court on the s.7 issue. However, the decision also makes some important comments on the principle of precedent and the restrictions on a Court when revisiting a decision, which has already been a subject of consideration by a higher level Court. This fascinating discussion, which I suggest impacted the decision in Bedford and provides guidelines for future cases, will be the subject of my next post. 

 

Testifying Behind The Veil: The Human Factor

Yesterday I discussed the background to the N. S. case, which has recently been argued, on appeal, before the Supreme Court of Canada. The case is significant for two reasons: it raises the issue of conflicting Charter rights and how this conflict should be approached by the courts and it raises the issue of whether or not a witness in a criminal case is permitted to wear a face covering veil during testimony.

The second issue has broader implications in the public arena as it highlights the clash between traditional religious practices and the modern world, where identity and privacy seem to shrink in the public spotlight. In the age of mass communication, with over 500 million users of Facebook, the idea of masking one's identity, for whatever reason, appears to be not only redundant but also unacceptable.

Legally, such a stance seems to be against precedent as seen in the 2009 Supreme Court of Canada Alberta v. Hutterian Brethran of Wilson Colony case, wherein the Court upheld provincial legislation which required photographic driver licence identification even though such requirement conflicted with the religious precepts of the Brethren. Such picture identification was rationally connected to the real and pressing concerns of safety and security.

Politically too, keeping one's identity private is not acceptable as in the recent decision by the Federal Government to require the removal of face covering veils when fulfilling citizenship requirements, particularly when taking the citizenship oath. This decision does not appear to be decided on the basis of security and safety but, according to Immigration Minister Jason Kenney, on the basis that the "public declaration that you are joining the Canadian family ...must be taken freely and openly." 

In that backdrop, we return to the N. S. case and the decision of the Ontario Court of Appeal written by the Honourable Mr. Justice Doherty for the panel. In the decision, Justice Doherty perfectly sets out the issues at stake "in human terms": 

N.S. is facing a most difficult and intimidating task.  She must describe intimate, humiliating and painful details of her childhood.  She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence.  The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members.  It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

M---d.S. is facing serious criminal charges.  If convicted, he may well go to jail for a considerable period of time.  He will also wear the stigma of the child molester for the rest of his life.  In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M---d.S. in a very different way. 

M---d.S. is presumed innocent.  His fate will depend on whether N.S. is believed.  In a very real sense, the rest of M---d.S.’s life depends on whether his counsel can show that N.S. is not a credible or reliable witness.  No one can begrudge M---d.S.’s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him.    

What is really being impacted by this case, which has now taken on national proportions, legally, politically, and socially, is the lives of two people. Certainly, the public's interest in the outcome of the case is valid. This is even more so considering the number and type of intervener's in the SCC case: the Ontario Human Rights Commission, the Criminal Lawyer's Association, the Women's Legal Education and Action Fund, and the Muslim Canadian Congress, to name but a few. However, we must not forget the "human terms" or human factor, which requires us to contemplate the life-changing possibilities of this ruling.

Testifying Behind The Veil: The Facts In The N.S. Case

On September 10, 2008, M---D.S. and M.---L. S. appeared before His Honour Judge Weisman for their preliminary hearing on charges arising out of historical sexual assault allegations. The victim, N. S., was a child at the time, when, according to her allegation, her uncle and her cousin sexually assaulted her. Although she complained of the assaults at the time, her father did not want the matter to be further investigated.

It was only as a mature adult, married and with children of her own, did N. S. reinstate the allegation and charges were subsequently laid. The allegations were such that the primary evidence against the two accused was from the alleged victim, making credibility the main determining factor in the case.

Unfortunately, this kind of situation, involving historical sexual assault allegations involving family members, is not unusual. What did make this case unusual was the manner in which the witness N. S. was dressed when she attended court to give evidence. As a practicing Moslem, N. S. was wearing a full body covering, known as an hijab, with a face covering veil, called a niqab, which showed only her eyes.

Defence counsel objected to her garb and requested the judge order the removal of the veil in order to conduct face-to-face cross examination. Judge Weisman, in open court, without conducting a formal hearing in which N.S. would have testified under oath and be subject to cross examination, questioned N. S. on her reason for wearing the veil. N. S. confirmed wearing the veil for religious reasons of modesty and only disrobing for family members. Another reason she did not wish to unveil herself was that:

--- the accuseds in this case are from the same community, they all go to the same place of worship as my husband as well and I have had this veil on for about five years now and it is --my face does not make any special, you know, like I know that--you know, there's body language, there's eye contact. I mean, I can look directly at the defence counsel, that is not a problem...it is a part of me and showing my face to--and it is also about--the religious reason is not to show your face to men that you are able to marry. It is to conceal the beauty of a woman, and you know, we are in a courtroom full of men and one of the accused is not a direct family member. The other accused is a direct family member and I, you know, I would feel a lot more comfortable if I didn't have to, you know, reveal my face. You know, just considering the nature of the case and the nature of the allegations and I think, you know, my face is not going to show any signs of--it is not going to help, it really won't.

N. S. was, however, unveiled for a driver's licence photograph, but a female photographer took the image while N. S. was behind a screen.

Judge Weisman ordered N. S. to remove her veil for her testimony. The decision was quashed upon judicial review by Justice Morrocco, but an application to permit N. S. to wear her veil during testimony was refused. This decision was appealed to the Ontario Court of Appeal, where, in a well written and reasoned decision, Justice Doherty, speaking for the panel, upheld Justice Morrocco's decision and remitted the matter to the preliminary hearing Judge to make the final determination on whether or not N. S. could testify behind the veil.

In another posting, I will discuss the reasoning for these decisions, but today I would like to point out the significance of the information given by N. S. at the time she was questioned by the Court, albeit in a less than procedurally satisfactory situation.

It appears, there are, in actuality, two issues to determine: the wearing of the veil for religious reasons and the wearing of the veil in order to provide comfort and privacy.

One issue, the wearing of the veil in accordance with Moslem modesty laws and tradition, is an issue of religious freedom under s.2(a) of the Charter. In this instance, this right comes into direct conflict with the accused's right to face his or her accuser for full answer and defence of the charges and is a protected principle of fundamental justice under s.7 of the Charter

The other issue, of comfort and privacy, engages N.S.'s right to protect her personal integrity and self-identity during the criminal process. Thus, society's interest in protecting trial fairness and in encouraging reporting by victim's of abuse is engaged as well. 

This delineation of the two issues is important as the final determination must take both concerns into account. Indeed, there are already provisions in our laws, specifically in the Criminal Code, to provide a more comfortable experience for a witness. One way this can be done is by permitting the witness to testify behind a privacy screen according to s.486.2(2), if "necessary to obtain a full and candid account from the witness." If so ordered, only the Judge and the lawyer conducting the examination can view the witness. Such an order strikes the right balance: as witness privacy rights are preserved and the trier of fact is able to assess demeanour and credibility. The constitutionality of this procedure was upheld by the Supreme Court of Canada in the Levogiannis case.

The other issue at stake, involving the freedom of religion and the competing interest of an accused's fair trial rights, must be assessed on a different basis. It is this clash of ideals which is at the heart of the N. S. appeal recently heard before the Supreme Court of Canada, and which will be further discussed in another posting. But here too, I suggest, there is an opportunity to strike a balance and come to an accommodation which preserves the rights of all.

 

 

 

Testifying Behind The Veil: A Study In Conflicting Charter Rights

Last week, the Supreme Court of Canada (SCC) reserved judgment after hearing argument on the N.S. case involving a witness's religious right to wear a naqib or a face covering veil while testifying. This Charter right comes into direct conflict with the right of an accused, under s. 7 of the Charter, to full answer and defence, a principle of fundamental justice and "one of the pillars of criminal justice on which we heavily depend to ensure the innocent are not convicted." 

As discussed in previous blogs, Charter rights are not absolute and may be restricted by the government if justified in a free and democratic society. Charter rights may also be limited when rights conflict. In those instances, the Court is required to determine the parameters of the competing claims in a just and appropriate manner consistent with Charter values. Just how the Court must approach this decision is the subject of this blog as a primer to the specific rights at issue in the N.S. case, which I will fully discuss in a future posting.

How to balance competing Charter rights? In the Dagenais case, Chief Justice Lamer considered the competing rights where a publication ban is ordered in a criminal trial. According to Lamer, "a hierarchical approach to rights, which places some over others, must be avoided" in favour of a balanced decision which "fully respects the importance of both sets of rights." As a result, the publication ban prohibiting CBC from showing the fictional account of abuse in The Boys of St. Vincent was overturned, despite the fair trial interests of the accused Christian Brothers, but on the basis the ban was overly broad and too protective.

The correct approach is, therefore, to balance the conflicting interests instead of choosing one right as more important, and thereby, more worthy of protection. This balancing must take into account all interests at stake, including the societal interest in promoting and protecting both sets of rights.

In the N.S. case, freedom of religion and the right of an individual to privacy conflicts with the principles of fundamental justice, which lay at the core of our criminal justice system. Add to that, the societal interest in promoting multiculturalism and tolerance and in protecting the presumption of innocence and fair trials, and the issues become even more complicated. 

It is these hard cases, where all interests are valid and Charter worthy, which make for interesting law. And it is the Court's subsequent response, which can change society.

Follow Up Connections: Human Rights, Science, and Literature

As this blog is about connecting ideas, this follow up post will do just that: provide some interesting connections between human rights, science, and literature.

As discussed yesterday, International Human Rights Day, celebrated yearly on December 10, recognizes the anniversary of the most influential human rights document: the Universal Declaration of Human Rights. For more on this, read yesterday's posting here.

December 10, is also the day in which the Nobel Prize Laureates receive their Prize in a ceremony fraught with history and solemnity. This year, the Nobel Peace Prize recipients are three courageous women: Ellen Johnson Sirleaf, Leymah Gbowee, Tawakkol Karmen. According to the Nobel Committee, these three women won "for their non-violent struggle for the safety of women and for women’s rights to full participation in peace-building work". How apt these women received this prize on International Human Rights Day. Their inspiring lectures are a constant reminder that the struggle for human rights is ongoing, even though the Universal Decleration of Human Rights has been enacted for 63 years.

Yesterday was also exceptional for the lunar eclipse seen throughout many parts of the world. Historically, both solar and lunar eclipses, as an omen of fate, stopped wars, or, as in the case of the Peloponnesian War, changed the course of history. Thus, the lunar eclipse as a harbinger of peace, is a meaningful event on a day we celebrate human dignity.

Finally, December 10 was the birth date of a poet, who understood the power of words to express love and hate. Emily Dickinson was a shy and retiring poet, who wrote astoundingly simple yet breathtakingly beautiful poetry. In her 8 line poem from Part One: Life, Emily reminds us where our priorities lie:

HAD no time to hate, because
The grave would hinder me,
And life was not so ample I
Could finish enmity.
  
Nor had I time to love; but since         
Some industry must be,
The little toil of love, I thought,
Was large enough for me.

Connecting With International Human Rights Day

Today is International Human Rights Day, a celebration of the establishment of the Universal Declaration of Human Rights in 1948. The document was the natural progression of the newly formed United Nations in 1945, which was created in response to the atrocities of World War II. Below is a photograph of then Minister of Justice and Attorney General of Canada, Louis St. Laurent, signing the UN Charter in San Francisco:

This act in 1945, appeared to solidify Canada's presence at the UN as a peacekeeping nation and stolid protector of human rights.

In actuality, although John Peters Humphrey, a Canadian law professor, was the original drafter of the Declaration, Canada was not initially supportive of its implementation. William Schabas, presently a professor of international law and Director of the Irish Centre for Human Rights, in his excellent journal article entitled Canada and the Adoption of the Universal Declaration of Human Rights, explains Canada's initial refusal to support the Declaration when Lester Pearson, the then External Affairs Minister to the UN, abstained in an earlier vote.  It was only after pressure from Canada's allies, the UK and the USA, that Canada's final vote was changed in favour of implementation.

Schabas, through a detailed review of archival documents uncovered the real reason for this reluctance, bordering on "hostility," shown by the Canadian delegation. Pearson and others in the Canadian Government were concerned with the entrenchment of the broad human rights, which would become available under the Declaration, and could be used by "suspect" groups in Canada. In particular, the government feared the rights of freedom of religion and freedom of association would protect the Communists and Jehovah Witnesses, two groups identified by the government as "subversive" groups. Indeed at the time, the infamous Padlock Laws, enacted by then Quebec Premier Duplessis, which empowered authorities to "padlock" any building which held any "communist" literature or permitted the gathering of anyone associated with communism, was still in force.

It is, therefore, important to recall this dark side to Canada's history when rejoicing in our global commitment to freedom and choice through protections of human rights. Our successes in the area seem to be that much more impressive when we embrace the missteps of the past and move toward a more inclusive tomorrow.

This cannot be more so when we recall Canada's recent contribution to international human rights through Louise Arbour, an exceptional legal jurist who served as the High Commissioner for Human Rights and as Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda. Admittedly, her tenure did not go without controversy, however, she is a prime example of the dedication Canadians have shown to our international covenants.

More importantly, what makes today a cause for Canadian celebration and pride, is our commitment to human rights nationally. Our Charter of Rights and Freedoms has changed the fabric of Canadian society and has given life and meaning to fundamental freedoms and protections. It is this duality of commitment, which is epitomized by Louise Arbour as a former Supreme Court of Canada Justice, who wrote strongly in favour of the protection of rights, and, as the author of the Arbour Report, uncovered abuses at the Prison for Women at Kingston Penitentiary.

This truly is the legacy of the Declaration.

 

How To Celebrate "Persons" Day Next Year

October 18 was "Persons" Day in Canada. The moniker arises from the Edwards, et al case, decided 82 years ago, in which the British Judicial Committee of the Privy Council (JCPC), the then highest Appellate Court for Canada, defined women as "persons." This decision gave women the right to sit in the Senate. A right previously, and vigorously denied to women. The five women, who through their tenacity and will-power, appealed this case, are now known as the "Famous Five." In celebration of their achievements, equality rights for women is celebrated throughout Canada. Through their actions, they have inspired many.

There is no doubt the result of this achievement was a crucial and watershed moment for women's rights. There is no doubt the effect of this fight was also an important moment in Canadian law as Lord Sankey's decision brought the concept of our Constitution Act of 1867 into a modern and fruitful interpretation. One that is reflected today in our Charter. However, as with all "celebrities" there is another side to this story.

These women were politically powerful. Emily Murphy was a Magistrate, Nellie McClung was a Member of the Alberta legislature, and Louise McKinney was an active member of the Temperance movement. In short, they were important women who were personally affronted by gender inequality. Their fight did not include the concept of equality for all minorities or vulnerable groups. Indeed, their fight was for equal rights for women like them; politically powerful and of British descent. Indeed, Emily Murphy, held what we would categorize as, racist views, particularly towards Asian-Canadians and Afro-Canadians. Just read, if you can stand to, her book entitled Black Candle.

However, this does not mean we should not celebrate this moment or event. A quick glance at the celebratory events held throughout Canada show a remarkable array of events involving women of all nationalities and ethnicities. This is the true legacy of the Persons case.

Yes, women are people too but so are Aboriginal women, and Asian-Canadian women, and Afro-Canadian women, and thankfully and proudly the list goes on. So next year, I will celebrate this seminal moment by pausing for a moment and cheering for all women of all backgrounds in our country.