Special Ideablawg Podcast Series Episode A: Code“Ch-ch-changes” in Section 2: From Audioconferencing to Videoconferencing – Changing the Concept of a Criminal Trial (text version)

Before I dip my pen or pound my computer keys and click on the record button to create the next podcast episode on sections 72 and 73 on forcible entry and forcible detainer, it is incumbent on me to update my previous episodes. Indeed, as David Bowie eerily chants, there are some significant “ch-ch-ch-ch-changes” to the Criminal Code since I started this series, now six years ago. Most of those changes are still to come into force – some in days on September 19 – and some when the snow falls (at least in Calgary) on December 18. So, in this, my special edition of podcasts, I will provide update and discussion of what will change from my previous podcast episodes on sections 2 to 70. 

 No need for me to discuss duelling pursuant to section 71. The section was repealed in 2018 amendments, which is rather sad on a personal level as it was an extremely popular offence in the 1L criminal law classroom. Overall, the changes being made to the Code are significant, hence why I will be providing a series of podcasts. So, sit, back, relax and let’s “turn and face the strange” with thanks to classic rock and the ever-engaging David Bowie.

In this first of several special edition podcasts, I will be expounding on s. 2 changes, which will come into force on September 19, 2019. Section 2, in my view, should be given the “most changes that are a bit hard to figure out” award. Even so, that will not stop any criminal lawyer from digging into each syllable of every word found in this section. I will attempt to elucidate these changes as best as I can, without seeming pedantic, but my best advice is to keep calm and carry on by slowly and methodically working through these changes before advising a client and certainly before attending Court. 

Section 2 is the interpretation section of the Code. Interpreting theCodeis a continual work in progress. Definitions are not exhaustive but crucial to the interpretation of a section. Take a section outlining an offence such as section 130, entitled personating a peace officer. The offence is seemingly straight forward, involving a false representation of a peace officer or a public officer. But to prosecute this offence, the Crown must prove every element of the offence beyond a reasonable doubt. Those essential elements arise from the words of the section themselves and case interpretation of those words. The first step to defending or prosecuting the section requires the lawyer to determine the nature of the charge the accused is facing by looking at the charging documents. This will help delineate the offence. In the case of s. 130, the charging documents will tell us whether the accused is charged as falsely representing a peace officer or a public officer. Let’s imagine the accused is charged with the false representation of a peace officer. Step two will be determining what a “peace officer” is under this section. This matters to the prosecution as the evidence must establish this essential element of the actus reus. This matters to the defence who may see the lack of evidence on this issue or may be able to raise a reasonable doubt on it. Part of the determination of what a “peace officer” is involves looking at the interpretation section to see if it is defined and described. There is indeed a definition of “peace officer” under s. 2 of the Code

Even with these definitions, we still need to turn to case authority to assist us in interpreting the interpretation. In other words, we need to know the meaning of the definition itself. This is all part of the continual statutory interpretation being done in criminal law. The Code is not a closed book. Yes, it reflects the written word, which appears static on the page, but those words are imbued with historical significance coming from common law usage before words were written down. Section 2 is the backbone of the Criminal Code, but it needs teasing out and referencing beyond the four corners of the page. 

Let’s look at that s. 2 definition of “peace officer.” That definition includes “the pilot in command of an aircraft” that is registered in Canada under the regulations of the Aeronautics Act or leased without crew and is operated by someone who is qualified to own an aircraft registered under the regulations of the Act. Additionally, and here’s the kicker, a person, even if they fulfill the above definition, is not a pilot in command of an aircraft unless the aircraft is in flight. What “in flight” could mean for purposes of this definition is also defined in the Code but under a different section, being s. 7(8). As this shows, although significant changes were made to the Code, structural changes were not at the top of the list as this further important defining feature of “the pilot in command of an aircraft” lies elsewhere. This also shows that definitions in the Code can be like sticking your hand in the Cracker Jack box; its messy and you may fish around for a while before you find the prize, that’s surely there, at the bottom.

 Because Code definitions are exceedingly important in criminal law, clarity is key. Too much or too little wriggle room in the definition may result in problems in defending or prosecuting a given offence. The revisions coming our way in a few days, September 19, 2019, will structurally change the definition of “Attorney General” by paring down the s. 2 definition but by adding a further new section, s. 2.3, to support the s. 2 definition. Also, on September 19, there will be two definitions, which were not in the Code previously; “audioconference” and “videoconference.” Audioconference adds a completely new procedure and videoconference simply labels what was already available. 

An audioconference is defined as “any means of telecommunication that allows the judge or justice and any individual to communicate orally in a proceeding.” The definition gives the judge or justice in a proceeding the ability to communicate verbally with “any” individual via telecommunication methods. This is a broad definition both in which circumstances this can occur and with whom. The term “proceeding” is used liberally throughout the Code. There is a definition, which we could work with, provided under the interpretation section 785 of Part XXVII on Summary Convictions, but this definition is less than helpful. I won’t sport with your intelligence by repeating it, but it is never good when a definition includes the word itself. In any event, a better definition for our purposes would simply to use “proceedings” as referencing any court matter such as an action or an application. For instance, a trial is a “proceeding” as is a Charter motion. 

A proceeding in this sense, is a hearing that, by its very nature, requires communication through the spoken language. Of course, there are capabilities for those who do not speak but communicate through sign language but even that is then translated to the spoken word. To be heard, therefore, generally one must speak. Audioconferencing will ensure that even if the people who need to be heard by the judge (defined elsewhere in the Code under the interpretation section 552 for Part XIX, Indictable Offences Without a Jury) or justice (defined under s. 2) are not physically in court, they can be heard. 

Those people can be “anyone” such as a lawyer, a witness or an accused. Although, the definition is broad, it is also circumscribed by other sections of the Code. For instance, according to section 650(1), the accused, subject to certain exceptions, shallbe present for their trial. Although an exception can be found under section 650(1.1) entitled “video links,” which is also being amended on September 19, 2019 to provide for videoconferencing, there is no ability now or in the future for an accused to be “present” at the trial via audioconferencing. The new amendments to s. 650(1.1) will permit the accused to appear, on consent, via videoconferencing, but even this mode of communication is restricted to trial matters “other than a part in which the evidence of a witness is taken.” 

Videoconferencing is defined as “any means of telecommunication that allows the judge, justice or "chairperson" of a Review Board, as defined in subsection 672.1(1), and any individual to engage in simultaneous visual and oral communication in a proceeding.” This ability to videoconference is not new but was not previously labelled as “videoconferencing.” See for example the pre-September 19 s. 650(1.1) that permits the accused appear by way of “simultaneous visual and oral communication.” The essence of “videoconferencing,” permitting the “virtual presence” of a witness, is also already permitted in the current s. 714.2(1). The use of the new term will create a consistent meaning of what is envisioned by this simultaneous seeing and hearing communication.  

Audioconferencing is new and will now, as of September 19, be found under Part XXII of the Code on Procuring Attendance, under the heading, “Video and Audio Evidence” from sections 714.1 to 714.8 and section 714.41. Essentially, these changes will create a regime for permitting witness testimony to be given via audioconferencing using teleconference or computer device capabilities, presumably when there is no simultaneous visual of the witness available or for expediency/efficiency reasons. The Code sections on this certainly do not clearly indicate that videoconferencing is the preferred manner of communication.

Although these changes appear to be in line with the technological age and reflective of the global economy, this new audioconferencing ability is in fact a game changer. It will provide the platform for a subtle shift away from credibility assessment based on observation to assessing credibility in other more objective terms. Although the case law is clear that demeanour alone is not a ground for accepting or rejecting evidence (see R v Hemsworth2016 ONCA 85 at paras 44-45), demeanour is still one of many factors to be considered in determining the credibility of a witness. This permissive ability to proffer evidence that is oral only and unobserved when given, sends the message that other credibility factors, such as internal and external consistencies of the evidence, will be more important. That seems to be consistent with the scientific literature and what we have even personally experienced; that people who are nervous are not necessarily untruthful. 

But where does it leave the accused, who must be present at trial and therefore must give “live” observable evidence? What happens to the nervous but truthful accused who is subject to an observational credibility assessment? It is important to heed Justices Bastarache and Abella at para 20 of R v Gagnon,[2006] 1 SCR 621, in their caution that "[a]ssessing credibility is not a science." In their view, assessing credibility involves not just observational inferences but the emotional response to those observations. As they further contend, "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" places the trial judge in a unique and difficult position when crafting their reasons for judgment. This also means the trial judge’s credibility assessment deserves deference, being a more complete assessment than available to the appellate court who lacks that observational dimension. Making observation optional for witnesses but mandatory for the accused may create a trial unfairness.

An accused’s right to full answer and defence may also be engaged by permitting evidence through oral communication only. This right does not mandate face to face examination in every circumstance, there are exceptions in the Codesuch as s. 486.2 permitting witnesses under 18, in certain circumstances, to testify outside of the courtroom or behind a screen. Even in those circumstances, the judge observes the witness even though the accused does not. Here, no one in the courtroom observes the testimony. The new amendments do have discretionary factors for a judge to consider in permitting an audioconference, which would protect this right. For instance, under the new version of s. 714.1, before permitting audioconferencing evidence, the court considers “the accused’s right to a fair and public hearing” and the “potential prejudice” resulting from non-observation of the witness. Certainly, even in the Jordan era, court time will be needed to sort out the very real concerns raised by these changes.

 “Telecommunication” is also part of these new definitions. That word was defined under s. 326(2) of the Codebut the definition was repealed in the 2014 Protecting Canadians from Online Crime Act.This Act brought in a number of cybersecurity measures and specific offences relating to the use of digital images. I suspect the reason for making telecommunications definition-less is an effort to keep the term broadly construed and flexible enough to pertain to all matters of technologically advanced communication. 

This almost innocuous definitional shift in section 2, as I have shown, seems uncontroversial but may actually challenge us to rethink core evidential concepts. Rethinking may be a useful and much needed exercise, but it needs, in my view, to come before Codechanges take place. As I have said before, and will say again, Code revisions should be a mindful exercise and taken with eyes wide open. Big thinking should come before large scale changes. Otherwise, the changes look inadequate or worse, unworkable.

The next set of significant definitional s. 2 changes coming September 19 are found in the newly revised meaning of “Attorney General.” We should in some ways be thankful for these changes as the current definition is a statutory interpretation nightmare and is as long as some criminal records I have seen. Nevertheless, the new definition, although shorter, does not read any better or any clearer. In fact, much of the information contained in the old definition is now off-loaded into a new interpretation section, s. 2.3, which fills in the jurisdictional issues arising from different offences potentially being prosecuted by the provincial Attorney General, the provincial Solicitor General, the Attorney General of Canada, or the Director of Public Prosecutions or a combination of them. In short, these definitions are a real lesson in public service politics. 

Suffice to say, jurisdiction can be important. For instance, for offences involving the sale of tobacco products, a newish regulatory-type crime (which, in my opinion should NOT be in the Code) created by 2014 amendments to the Code, the new definition of Attorney-General combined with s. 2.3 tells us that the offence can be prosecuted by the provincial Attorney General, or the provincial Solicitor General or the Attorney General of Canada and includes the lawful deputy of any of them. Phew. That’s a lot of concurrent jurisdiction. In other words, be sure to check both sections to confirm who is who. 

In the next episode, I will discuss the s. 2 amendments that will come into force in December 18, 2019 and will give us a real run for our money as we talk about the changes to Forms of release, which means changes to bail release procedure.

 

 

 

 

 

 

W(D) Strikes Again! (First Posted On ABLAWG website: www.ablawg.ca)

W(D)[1991] 1 SCR 742, is entrenched in our justice system. This seminal Supreme Court of Canada decision provides a tight three-pronged approach to the application of reasonable doubt to the oft divergent evidence from the prosecution and the defence. W(D) has been considered, re-considered, and applied over 10,100 times since its release in 1991. It serves as a continual source of discussion and inspiration for scholars like me. Although the principle in and of itself is not overly complex, it is in the application of the principle to complex and unique scenarios that can raise unforeseen or even novel W(D) issues. In this post, I will consider R v Ibrahim2019 ONCA 631, a recent decision from the Ontario Court of Appeal, tackling the thorny issue of applying W(D) to objective mens rea offences. This will also require a detailed discussion on objective and subjective mens rea. The purpose of this robust and far reaching discussion is not to outline the differences between the two forms of liability but to appreciate the similarities. Although objective and subjective mens rea have differing aspects and sightlines, they are part of a continuum of awareness, which is key to understanding what makes conduct a crime. Such exploration is necessary to expand our understanding of why - and how - W(D)matters. For more background on subjective and objective mens rea, read my previous article on “The Subjective/Objective Debate Explained.”

As a reminder, the W(D) principle involves a suggested approach to credibility assessment where the trier of fact must apply the principles of fundamental justice, presumption of innocence and reasonable doubt to the assessment of the prosecution and defence evidence. The gist of the principle is to ensure that even when the accused’s evidence is not believed, the trier does not reverse the burden of proof and take that rejection as proof beyond a reasonable doubt. Rather, the trier must consider the possibility that despite rejecting the accused’s evidence, when reviewing the entirety of the evidence they do accept, they may be left in a state of reasonable doubt as to guilt, thus requiring an acquittal. The principle ensures the trier does not fall into the credibility contest trap, where the “winner” means the “loser” is necessarily guilty. In essence, the essence of W(D)is keeping the burden and standard of proof at the forefront of the credibility assessment. It is about keeping an open mind and not equating disbelief with proof beyond a reasonable doubt. But this principle does not reside in a vacuum, rather, it is contextualized and framed by the given substantive offence. The standard of proof is about proving the elements of the specific offence. The ultimate question asks whether this accused person committed this offence beyond a reasonable doubt.

Admittedly and unashamedly, I am thoroughly committed to the centrality of the W(D)concept in assessing credibility. By saying this, I am actually acknowledging the centrality of the presumption of innocence in our criminal justice system. This concept cannot be better described than it is in Woolmington v DPP[1935] 1 AC 462, the seminal criminal law decision from the English House of Lords. There, Lord Sankey colourfully visualized the presumption of innocence as a shimmering golden thread: 

Throughout 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. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. 

This famous passage reinforces my contention that the presumption of innocence, together with the onus on the prosecution to prove guilt beyond a reasonable doubt, is the strength of our system without which justice could dissolve, not unlike a spider’s web. For more on my thinking around the presumption of innocence and some musings on the web-like metaphor used to describe it, see my blog/podcast entitled “The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada.”

Admittedly as well, I have written on W(D)previously both in journal article format (see The W(D) Revolution(2018) Manitoba Law Journal 307-48) and in blog articles (see Why Reconsider W(D)?(February 7, 2019) online: ABlawg). In reconsidering W(D), I commented on Justice Martin’s W(D)perspective in R v Ryon, 2019 ABCA 36 CanLII, and his suggested approach to the application of the principle in determining a case. For a lawyer, W(D)discussions, like the one in Ryon, are like being allowed to stay up late at your parents’ adult party; in the beginning you feel part of a mysterious uncharted world but then realize we are all speaking the same language, just expressing it in different ways. 

Of course, all of the above becomes more complicated when applied to cases where the “sides” are not so clearly wrought and where the elements of the offence require a nuanced approach. The objective standard of liability is a much-debated area of criminal law, straining the traditional formulation of crime as subjectively based. The trier of fact, instead of determining what was in the mind of the accused when the offence was committed, must determine what the reasonable person would have known or ought to have known in the circumstances. In objective mens reacases, the narrative of the accused provides context of the circumstances of the case to assist the court in situating the reasonable person into the factual matrix. Even if the accused denies intending to do what is alleged to have been done, and even if the trier accepts this evidence as true, in an objective mens reaoffence, such as manslaughter, it is of no consequence if there is an objective foreseeability of bodily harm arising from the conduct of the accused. It is this scenario which the court in Ibrahim attempts to explain how W(D) matters.

The above explanation seems to be the answer to the Ibrahim situation; W(D) simply does not apply to objective mens rea cases. However, intention can matter in the objective mens rea world. When the Supreme Court of Canada, in R v Beatty[2008] 1 SCR 49, finally, finally, clarified the objective mens rea test for criminal offences, Justice Charron, speaking on behalf of the majority, also clarified the role of intention in the objective matrix. Intention may not be the standard to assess the accused’s fault, but it is a circumstance, a piece of evidence, which, together with the whole of the evidence in a case must be considered. Picture an accused person, charged with criminal negligence causing death, an objective mens rea offence, on the basis the accused purposely used their car as a “weapon,” causing fatal injury to a person walking along the sidewalk. If this intention is proven, the objective mens reais met; those actions would be objectively dangerous and a marked and substantial departure from the conduct of a reasonable person. In fact (and in law!), subjective mens rea, an intention to kill, would also be fulfilled. Deliberate action would be evidence of the objective offence. Although Justice Charron in Beatty (para 47) and Justice Doherty in Willock (2006 CanLII 20679(ON CA) at para 32) use slightly different examples, the principle remains the same; intention as subjective mens rea if proven would also provide proof of the lower standard of objective mens rea

This argument can also be understood by looking deeply into the structure of mens rea. Justice Sopinka, in R v Anderson[1990] 1 SCR 265, a Supreme Court of Canada decision straddling the division created by Justice Lamer’s desire to personalize the objective standard and permit consideration of the accused’s personal characteristics in determining objective mens rea, neatly explained the similarities between objective and subjective mens rea. Both forms of fault are determining the “foreseeability of consequences” (Andersonat 270) and the connection between conduct - the physical actus reus component of crime - and foresight – the mental or mens rea element. The connection is a “criminal” one rather than the less substantial “civil” relationship. The greater the risk of harm created by the conduct, as explained by Justice Sopinka in Anderson, the “easier it is to conclude that a reasonably prudent person would have foreseen the consequences,” as required for the criminal form of negligence (Anderson at 270). It is “equally” easier to conclude that the accused “must have” foreseen the consequences (Anderson at 270). Taking this further, when the consequences are “the natural result of the conduct creating the risk” (Anderson at 270), the foreseeability – consequences relationship is, as in the highest level of subjective intention, a certainty. It is important to note that consequences do not necessarily create the liability. In other words, a fatality resulting from a car accident does not mean the accused is guilty of dangerous driving. A horrific outcome does not create objective dangerousness.   

Understanding this relationship, in which subjective and objective mens rea are part of a unifying continuum, permits understanding of why W(D), may apply equally to objective and subjectivemens rea offences. Justice Trotter in Ibrahim, looks at the flip side of this ‘subjective intention as objective intention’ relationship by considering the effect the accused’s evidence, if accepted, would have on the issue of objective mens rea. The reasonable person, in the objective assessment, does not reside in a vacuum. Here, the reasonable person must be similarly situated as the accused. This does not mean the personal characteristics of the accused are considered as Justice Lamer recommended in a series of cases on the meaning of the objective standard in criminal offences. The Beatty decision permanently shut down that minority position. A similarly situated accused does not share personal characteristics with the accused but shares place or context. As I explain this to my 1L class, objective mens rea in criminal law is contextualized not personalized. 

Context is important, particularly in determining the availability of, what authorities like Hundal[1993] 1 SCR 867and Beatty calls, an exculpatory defence. Like strict liability for regulatory offences, objective mens rea for criminal offences is “modified” to permit defences of mistake of fact and due diligence or due care. The premise behind these defences is again about what the reasonable person would have done in the circumstances. As Justice Charron explained in Beatty, objective mens rea is founded on the presumption that reasonable people “in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity” (at para 37). Conversely, if the reasonable person “in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger” (at para 37) then the logic behind that presumption falls. Notice, we are situating the reasonable person in the place of the accused. Similarly, the defence of mistake of fact defence in the objective arena is based on reasonable belief, which requires objectively verifying the accused person’s subjective perception. In other words, the mistake in the facts, which resulted in the accused committing the offence, must be an honest and reasonable one, requiring a mix of subjective and objective factors (See R v Tutton and Tutton[1989] 1 SCR 1392, McIntyre J at pp. 1432 to 1433). The accused’s place in the circumstances of the offence is an important ingredient in both the essential elements of the offence and in the consideration of the exculpatory defences.

It becomes evident then that the defence evidence, particularly the accused’s evidence on the circumstances of the offence is relevant and may result in an acquittal, whether it is accepted or not. Equally, the evidence may not result in an acquittal, whether it is accepted or not. The point of the exercise, indeed the point of W(D), is to remind the trier of fact that the accused’s evidence must be considered in the final assessment of guilt or innocence. It is troubling that case authority, until Ibrahim, suggests courts did not apply the principles arising from W(D). This is the reason why not only does W(D) matter but Ibrahim matters as well.

Justice Trotter, like Justice Cory before him, gives the trial courts a modified W(D)approach for objective mens rea. It simply reminds the trier what we have already identified and discussed in the previous paragraph and throughout this article that the accused’s perceptions are relevant and must be considered in the final determination of the case. At paragraphs 62 to 64 of Ibrahim, Justice Trotter outlines the preferred approach and then urges trial judges, at paragraph 65, to take heed of these instructions in the context of the unique facts and issues arising in their own specific cases. This tailoring of W(D) recognizes that W(D) is a state of mind, a decision-making approach, not an incantation or formulae. W(D), in many ways, is a concession to our humanity. It articulates in principle-based language the concept we all know but rarely admit; that judges are people too. We have independent and impartial triers of fact precisely for this reason; to make use of their humanity to discern, discriminate and digest facts and law. We want and need our decision makers to apply their logic and common sense together with legal principles in assessing the evidence. By relaxing our hold on the stock jury instruction, we permit judges to personalize their instructions and tailor them to the case at hand. No two judges are alike and equally, no two cases are either. These two truisms must be recognized and reflected in the instructions to the jury. So too decision-making cannot be the same exercise for everyone. The only requirement is that the decision be made on the basis of the evidence and in accordance with legal principles. In the end, no incantation or formulae can work the magic of a properly instructed trier of fact. And we have W(D) to thank for that.

 

 

 

 

Does Legal Language Matter?

Law has a reputation problem. I don’t mean the lawyers-can’t-be-trusted trope that litters the internet and bad jokes circuit. I mean the other reputation for being boring, dull and obtuse. Sadly, law comes by this reputation honestly. To an untrained eye, that lengthy Supreme Court case makes one’s eyes glaze over. Oh, and that lease agreement produces a big yawn. But legal writing need not be dry and without life. In fact, legal writing is coming into its own as cases are written in a more engaging and accessible way. Take the Supreme Court’s commitment to “plain English” case summaries or the number of court jurisdictions that tweet out short and inviting case briefs (see Alberta Queens’s Bench twitter feed). 

But this accessible and engaging writing is also finding its way into case decisions; the bastion of legalese. Of course, “accessible” and “engaging” are sometimes two different kinds of writing. Let’s look at “accessible” writing. In legal circles, accessible writing is an access to justice issue. Not every person involved in the justice system has the luxury of a lawyer to inform them of the issues in an easily translatable manner. Admittedly, not all those who do have lawyers receive this kind of information either. In any event, particularly with the advent of free online databases of decisions such as CanLII, it is increasingly clear we in law need to be clear in our writing. More importantly, case decisions should be understood by those whose lives are bound up with the outcome. The accused, the victim, the injured party and defendant all need to be able to read the final decision on their case and understand what did or did not happen to them. To be sure, judges write for many audiences but none more deserving of knowing than the aggrieved parties to the action. 

Interestingly, most case decisions are not specifically directed to the parties. They are written in the third person. The judge references their names and does not generally write in the second person by using the pronoun “you.” This is in sharp contrast with many political speeches. John F. Kennedy’s famous inaugural speech of 1961, is an example of where “we the people” were specifically entreated to “ask not what your country can do for you—ask what you can do for your country.” Making writing personal brings the individual into the bounded space of the page. It brings a sense of identity and an emotive response to the words. This power of words to move people is likely the reason for not writing case decisions in the 2nd person as case decisions must also double for case authority and precedent. Like Sgt. Joe Friday in Dragnet, it is better to just stick to the facts, particularly if the purpose is not to create an emotional response but to create an authoritative voice. 

Yet, directing the decision to the person affected, particularly in sentencing an accused, can send the right (write?) message. If one of the principles of sentencing is to rehabilitate or even denounce the behaviour, making the sentencing words powerful can speak to the offender on a different level. I am not thinking of a strongly worded chastisement of an offender but an accessibly written reasoning for punishing the offender. No doubt this goes on without a written record as most cases managed in provincial court are done in the moment without written reasons. However, there are notable case decisions such as R v Armitage, 2015 ONCJ 64, where the sentencing judge, Justice Nakatsuru, intentionally sentenced the Indigenous offender in a language the offender could relate to and understand. In my 1L criminal law class, I have the students read parts of this decision as a prime example of meaningful plain language legal writing. It is beautifully written and as readers we feel we are in the courtroom, hearing the judge speak frankly and directly to Jesse Armitage. 

In another sentencing decision, this time a young offender, Judge Janzen of the British Columbia Provincial Court, directs the entire decision to the offender by using the pronoun “you” in R v BLA2015 BCPC 20. Another example, a powerful one, of speaking directly to the offender, is R v MacGregor2005 CanLII 33746, an impaired driving sentencing by Judge Ayotte of the Territorial Court of the North West Territories. In this sentencing, Judge Ayotte explains to the offender, at pages 2 to 3, why their conduct is serious and how it can impact many lives,

When you drive in that condition, you turn your vehicle into a potential weapon. It was observed by the Chief Justice of Alberta, not the present one but a few years ago, who, of course, is the Chief Justice of the Territories, that the only difference between the drunk who gets home safely and the one that does not, is pure dumb luck.

I can tell you that in the years that I have spent on the bench, there has been more than one occasion where some otherwise upstanding good citizen has sobered up the next morning to realize that he or she has killed someone. It happens regularly.

Many of our citizens don’t understand the seriousness of the problem. Parliament has gone to extraordinary lengths to fight it. I will give you some examples. Ordinarily, a Court has the option in imposing sentence, of simply imposing a term of probation without more. We are prohibited from doing that for a drinking driver, even a first offender. There must be at least a $600 fine.

Ordinarily, Courts are given a choice of sentence, fine, gaol, probation, or a combination of those things. In some cases, as you found out in your case, the Crown is given the power by serving this notice to take away that Court’s choice and require a term of imprisonment. It is unusual for a Court to lose its discretion. Parliament does not do that sort of thing lightly. They do it because of the immensity of the problem in this country of the drinking driver.

 The decision is in both first and second person as the judge explains the law, explains the public wrong and does so as if the judge and the offender are sitting at a kitchen table having coffee. This is an accessible decision, which uses the power of words in a compassionate and personal way. I also recommend this short sentencing by Judge Ayotte in R v Modeste2005 NWTTC 10. But there is no better testament to a well written decision than another judge’s comments. Judge Doherty of the British Columbia Provincial Court, in sentencing an offender in R v Paul et al, 2005 BCPC 693, relies on a decision of Judge Ayotte with these words,

I am impressed with the care that Judge Ayotte took in R. v. Lamouche, et al, in the Provincial Court of Alberta, Criminal Division, reported at 1998 ABPC 101 (CanLII).  When I say impressed, I am impressed with his opening and the reasons he sets out.

Sentencing is understandably well suited to the personal touch. It is more difficult to personalize reasons for conviction or judgment. But this does not mean it cannot be written in an accessible manner. For example, Justice Feehan, who now sits on the Alberta Court of Appeal, writes clear straight forward decisions in his civil and criminal cases (see e.g. 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd2018 ABQB 478). Such a task becomes more difficult in the appellate courts where the rule of law, not the rule of plain English is of main concern. On the appellate side, Justice Doherty from the Court of Appeal for Ontario, continually produces decisions that illuminate rather than obscure. This is particularly important for a court dealing with contentious issues. An example of Justice Doherty’s style is in the decision, R v N.S.2010 ONCA 670 questioning the accused’s constitutional right to confront a witness who testifies while wearing a niqab. The simplicity of Justice Doherty’s language is enhanced by his scrupulous fairness is arriving at a decision. He sees the competing interests and he describes them in “human” language. For example, at paragraphs 45 to 46 he writes:

Before turning to the constitutional concepts and analysis, I think it is important to remind one's self of what is 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. 

The two perspectives summarized above reveal the quandary faced by the preliminary inquiry judge. Both M---d.S. and N.S. have powerful claims that seem to lead to diametrically opposed conclusions. 

This kind of writing reflects the reality of criminal law and brings the issue to the citizen. This is accessible and engaging writing, but it is also powerful; not in the authoritative sense but, in the sense that through the power of words, the decision animates justice.

 A final comment on the use of the second person “you” pronoun. Notably, in the charge or instructions to the jury, the judge does use the pronoun “you.” Again, this device serves to bring directly to the jurors their personal responsibility to assess the evidence and arrive at a just and reasonable decision. The use of “you” attracts the duality of a jurors duties as well; each juror swears to act impartially and uphold the law but must do so collectively. 

There are some jurists who tend to the literary side. Their decisions are remarkable as they employ literary devices. Justice Watt, another experienced former trial judge and now appellate justice, writes in a muscular literary style, reminiscent of a par-boiled detective novel, as he starts his factual considerations in a clipped no-nonsense manner. A good example of this is the decision in R v Wolynec2015 ONCA 656 in which Justice Watt introduces the facts and the conclusion in paragraphs 1 to 9 as follows:

A lone bandit robbed a bank. He wore a grey hoodie. And sunglasses. He had a dark French goatee. He was soft-spoken when he asked the teller for cash. He made no gestures, nor any express threats. 

The next day, a few blocks away, the same thing happened. A lone bandit. A hoodie and sunglasses. A beard and moustache. But this time, the bandit presented a note. It said he wanted money. And that he had a gun. 

A short time after the second robbery, police found a grey sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper. And on the newspaper, somebody had printed “have gun give me all money”. And on the top of the newspaper sat an open napkin similar to those supplied by restaurants. 

Police seized the sweatshirt. And the newspaper. But not the napkin. 

A few months later, a technician found a crusty tissue in a pocket of the sweatshirt. On the pocket and the tissue, a scientist detected evidence of bodily fluids. The chance of somebody other than Victor Wolynec being the source of the bodily fluids was one in 57 billion. 

A judge found Victor Wolynec guilty of both robberies and imposed concurrent sentences of imprisonment of 9 years. 

Victor Wolynec claims that the trial judge failed to adequately scrutinize weaknesses in the evidence adduced by the Crown and failed to grasp the position of the defence. As a result, he says his convictions are unreasonable and a miscarriage of justice. 

Victor Wolynec also challenges the sentence the trial judge imposed. He contends the sentence is too long, crushing any prospect of rehabilitation or reintegration into society. 

These reasons explain why I have decided that Victor Wolynec`s convictions are unassailable and his sentence fit. I would dismiss his appeal from conviction and grant leave but dismiss his appeal from sentence.

Note, how Justice Watt uses the first-person pronoun “I” to notify the reader that he takes full ownership of the decision. He also creates a partnership with the reader by stating the reasons to follow will provide an explanation for his conclusion. So too in the Armitage decision, Justice Nakatsuru uses the first person in the first few paragraphs to explain why he, the judge, was writing the decision for the offender. “I am writing for Jesse Armitage,” so says the judge at paragraph 5.

Yet, first person case decisions are unusual, despite the use of it by Justice Watt to frame his reasons. This is because case decisions are not about the judge personally or the judge’s feelings; the judge is not a party to the action but must be impartial and unbiased. The use of “I” perhaps personalizes the decision too much, making it more about the decision maker than the decision. Naturally, this does not mean a judge must abandon their past and become “sphynx-like” (see R v Adano2008 CanLII 23703 (ON SC) at para 23). A judge is a person too but not the first person in a case decision. Conversely, by eschewing the “I”, it could be argued the judge is depersonalizing the decision too much. In effect, we often need to read between the lines to understand the context of the decision and to humanize it. 

Recusal applications, in which the court is asked to step down from a case due to reasonable apprehension of bias, may be another kind of first-person decision.  Although, such applications are not to be viewed as personal affronts, it is difficult to suggest they are not. The test is an objective one; what the informed reasonable person would conclude. But the test is applied to a highly emotional situation where the trial judge is allegedly not acting “judicially.” The “I” is there no matter how arms-length the test may be and no matter how much law is recited.

 Engaging language in case decisions can also lean on humour. In a recent Ontario decision on a summary judgment application, Austin v Bell Canada2019 ONSC 4757, involving statutory interpretation and comma placement, Justice Morgan remarked at paragraph 47 that “despite their physically small stature, commas have created controversy in important places.” After more grammatical parries and thrusts, Justice Morgan concludes at paragraph 69, “I do not believe it was a legally induced comma.” Humour can relieve the tension, but it cannot take the place of legal principle; the decision is now under appeal. The case will be reviewed not on the basis of its candour but on the basis of its law. 

Another notably light-hearted decision is in Henderson v Henderson, 2016 SKQB 282, in which Justice Danyluk determines custody of the family pets. He opens the decision by stating a known truth that “Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.” The light heartedness turns a corner as the judge chastises the couple for wasting scarce judicial resources on the issue and urging them to settle this difference outside of court in an effort to “move along” the matter.

 For language we can all live by, the Charter decisions rendered by the Supreme Court of Canada are hard to beat. Interestingly, the Supreme Court Justices often use first-person personas, even when they are speaking on behalf of other justices. Justice Wilson, in particular, writes from the heart when in a separate but concurring judgment in R v Morgentaler, [1988] 1 SCR 30, she writes at page 164 that 

The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.

This passage beautifully encompasses the yin and yang that is the dichotomy of the Charter; it encapsulates collective principles that are enshrined for the individual. Later in R v Lavallee, [1990] 1 SCR 852, she continues to bare what society tends to want to bury and tackles the legal tolerance of spousal abuse as a reflection of society as “laws do not spring out of a social vacuum.”

 Connecting the past to the present, Justice Abella knows how to open a decision by capturing the reader’s attention. On the pressing issue of media rights under s. 2(b), Justice Abella in her opening paragraphs 109 to 110 in R v Vice Media Canada Inc., 2018 SCC 53,maintains that 

 For twenty-five years, this Court has flirted with acknowledging that s. 2(b) of the Charter protects independent rights for the media. Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s. 2(b). The words are clear, the concerns are real, and the issue is ripe. A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury — there can be no democracy without it.

Similarly, in the earlier decision of R v DLW[2016] 1 SCR 402, Abella J commenced her dissent in paragraph 125 with the deft use of good old fashioned metaphor by stating that 
“This case is about statutory interpretation, a fertile field where deductions are routinely harvested from words and intentions planted by legislatures. But when, as in this case, the roots are old, deep, and gnarled, it is much harder to know what was planted.” The living tree, indeed.

But it is the s. 8 search and seizure decisions, in which the normative world collides with the legalistic one, where the writing rouses our passions and requires us the reader to take part in the decision making. In Hunter v. Southam Inc., [1984] 2 SCR 145, Justice Dickson, as he then was, in determining the constitutionality of what he called an authorization of “breathtaking sweep,” remarked the then “new” constitution has 

an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

This reiteration of Lord Sankey’s “living tree doctrine” repatriates our fundamental values as a Charter principle and gives the reader a sense of Canadian destiny and nationhood. Fast forward to a more recent decision with Justice Karakatsanis dissenting in R v Fearon,[2014] 3 SCR 621, in which she calls out what is at the heart of s. 8 when she reminds us at paragraph 103 that “an individual’s right to a private sphere is a hallmark of our free and democratic society.  This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination.”

There are many more examples of clear, accessible and engaging language used in case decisions. Instead of the exception to the well-worn trope that the law as written is unreadable, these kinds of cases should be the expectation we have of our justice system. Our laws are ours and to be accessible, readable and meaningful, we look to those who wordsmith on a daily basis to bring us into the legal system as a true partner in its creation. Does legal language matter? I leave it to the reader to decide.

 

 

Engaging the Criminal Justice System Through JH v Alberta Health Services (As Originally Edited & Posted on the Ablawg website)

We often assume the contours of the criminal justice system are clearly delineated in law and in fact. For a lawyer, every criminal case is immediately identifiable by its style of cause, the ubiquitous “Regina v”. For the non-lawyer, criminal law is a standout in media reports, providing eye catching headlines and a riveting Saturday morning read. We may not know every criminal offence abounding in Canadian law, even though s 19 of the Criminal Code, RSC 1985, c C-46 – which provides that ignorance of the law is no excuse – suggests we should, but we certainly know crime when we see it. What we are less successful at identifying are those situations where the criminal justice system merely lurks in the background chatter of a decision or when the factual matrix does not involve overtly criminal behaviour. In those less obvious scenarios, the case narratives do not engage our interest so readily. In short, we miss the criminal law-ness of the situation. Yet, in these cases, the criminal justice system is, in fact, fully engaged but we criminal law observers simply miss the connection. By missing this connection, we may not appreciate the impact of the case. Instead, we misfile the decision or, worse yet, dismiss the decision as unimportant or inapplicable. By failing to read between the lines, we are missing out on the richness offered by interdisciplinary case law. The recent Alberta Queen’s Bench decision of Madam Justice Kristine Eidsvik in JH v Alberta Health Services, 2019 ABQB 540, is a good example of a case that transcends the purported area of interest – it is a mental health law decision that engages larger issues borrowed from the criminal justice system. In JH, the criminal justice system is fully engaged and plays a vital role in the outcome.

 Justice Eidsvik’s decision, firmly based in the administrative health law arena, reads, sounds, and acts like a true criminal law case. Admittedly much of this criminal law-ness is suggested by the application of the Charter. But the Charter is acting at the behest of the criminal justice system when Eidsvik J. finds that the involuntary committal regime of the Alberta Mental Health Act, RSA 2000, c M-13 (MHA) violates sections 7, 9, 10(a) and 10(b) of the Charter (at para 140). In striking down these provisions, Eidsvik J. is engaging the full force of the criminal justice system. Through this decision, health law becomes criminal law as legal rights familiar to the criminal justice system – such as arbitrary detention and the right to know the reasons for that detention – become the central issues in the case. In this way, the JH decision identifies as pure criminal law with all of its emotive and authoritative qualities. 

Emotion permeates a criminal file. The factual narrative makes us direct witnesses to the event evoking the shame, pain and sorrow felt by all the people involved. True, the legalistic language attempts to deaden us to those painful circumstances. Nevertheless, an emotional response is acceptable and part of the criminal law-ness. In this same way, the JH decision provokes us. Reading the decision, we are shocked, saddened, indignant or just plain angry. The case makes us want to call out our administrative officials to “do better” and to text our government representatives to fix things quickly. The decision does this in different ways; it offers a purely legalistic view of statutory power, yet it does so by placing a mirror to societal conceptions of how “normal” people must and should act. It is a symbol of the universality of our justice system as pressing and persistent mental health issues span the globe. It is also a muscularCharter decision, requiring swift but thoughtful government action. For all these reasons, the JH decision represents the need to modernize our laws as a response to the marginalization of those individuals in our justice system with perceived differences. It is also an exemplar of the power of the Charter, which is increasingly a tool for change. 

For an excellent overview of the initiating factual and legal underpinnings of this decision, read Professor Lorian Hardcastle’s 2017 ABlawg commentary of the quashing of the mental health certificates in this case. See also, a follow-up ABlawg discussion on the constitutionality of the MHA sections written by then law student Kaye Booth and Alberta Civil Liberties Research Centre Human Rights Educator, Heather Forester. This earlier action was the individualized response to the improper actions that authorized JH’s detention in a mental health facility. The recent decision offers the flip side of the event, wherein the Court considers and applies the Charter to the systemic issues enabled by the MHA legislative framework. The two decisions can be read separately but we must recognize they flow one from the other. It is the human price paid that precipitates the Court-ordered remedial response. 

This decision is framed and filled in by JH, who is represented by initials to protect his privacy and dignity, yet who was stripped of both within the mental health system. Like Joseph K. in the literary fictional world of Kafka, JH could be any one of us and is, in fact, all of us as he finds himself in the hospital as a result of being a victim of a hit and run accident (at para 11). It is his physical well-being which needs treatment but as we know all too well, the physical often collides with the mental as the less tangible mental well-being of JH becomes the centre of medical attention. To be clear, all participants are acting with the best of intentions. Everyone is trying to “help.” However, like The Trial, which resides in the genre of “bureaumancy” where the surreal is found in the mundane, the story of JH unwinds incrementally, frame by frame, compounded by a series of everyday actions. Actions which transform JH’s sojourn in the physical treatment-side of the hospital into a long-term stay in the mental health side of the facility. Actions which lead inexorably to the penultimate decision rendered by Justice Eidsvik (see JH v. Alberta Health Services,2017 ABQB 477 (CanLII)). 

To the medical authorities JH checks all the boxes needed for an involuntary certification: he is homeless; he is cognitively deficient; he is prone to drink; he is uncooperative; he lacks community support; he is unwell. But there is an alternate story here: JH is homeless because hospitalization made him so; he is not cognitively perfect but how many of us are; his propensities are just that – inert possibilities; he does not co-operate because he knows he does not need this kind of treatment; he lacks community support because he does not “mentally” fit the criteria for a community treatment order; he is unwell because he is, against his will, being treated for a mental health issue that does not in fact exist. To end the recitation is the glaring fact that JHis a member of Canada’s First Nations and subject to all of the preconceptions residing within that identification. In short, JH is on the “other” side of society and needs the insiders help. This paternalistic view of JH can be found in many criminal law cases. 

 We have not exhausted JH’s life story or his deep frustration with an imperfect system, but the story now moves from the private to the public. It is time to consider the criminal law stance of this legal story. The first indication of the criminal law-ness of this decision is apparent in the initial 2017 determination by Eidsvik J. on the potential mootness of the Charter application (see 2017 ABQB 477). This is the “why bother” question the Crown raises on the basis that JH is out of custody. But the Court nicely responds to that question by underlining the societal impact of the MHA and the constitutional importance of her gatekeeper function that protects us all from legislative overreach (at paras 27 and 28). In this decision, JH has moved from an individual’s quest for justice to the overall integrity of the justice system. A similar journey occurs in criminal cases. This is the first indication that in the JH decision, the criminal justice system is fully engaged. The parallels are obvious. Unlawful detention and a lack of due process are familiar criminal law themes. In JH we experience the mental health justice system through those criminal law tropes. The veneer of non-criminal law does not matter. It may file the JH case under “health law” or “administrative law” or even “Charter rights” but it is still a case involving legal protections and rights afforded to all individuals when faced with state-like authority.

 Another way this decision parallels the criminal justice system is in the finer details. The decision is reminiscent of the use of the hypothetical offender in s 12 Charter litigation. A sanction or punishment is “cruel and unusual” under s. 12 if it is “grossly disproportionate” to fundamental sentencing principles (see R v Boutilier[2017] 2 SCR 936 at para 52). In this analysis, the hypothetical offender represents the potential reasonable scenarios in which the application of the impugned legislation could breach the Charter. In considering the effect such provisions would have on the hypothetical person, the court moves away from the particulars of the individual before them to test the constitutionality of the legislation in the broader context. Such a litmus test brings the legislation into sharper focus as the overall Charter cogency of the section is at issue. To quote the then Chief Justice McLachlin in R v Nur[2015] 1 SCR 773, hypothetical scenarios are not merely limited to the “bounds of a particular judge’s imagination” but are delineated by the “reasonable reach of the law” to understand the “reasonably foreseeable impact” of that law (at para 61). As in JH, perspective is everything.

 

Even though McLachlin CJC went on to characterize the scenarios as tools of statutory interpretation, the hypothetical offender is much more than simply a compendium of factoids used to illustrate unconstitutionality. Such hypothetical “people” are not the offender before the court, but they do exist. For instance, in striking down the mandatory minimum sentence of six months imprisonment for the possession of marijuana plants, the court in R v Elliott, 2017 BCCA 214(Can LII)(at paras 47, 48, 69 and 70) considers the not so hypothetical offender who attends university, lives in a basement apartment and grows 6 potted marijuana plants for home use. A 6-month jail sentence imposed in those circumstances would be “clearly disproportionate and shocking to the Canadian conscience” (see McLachlin, J in dissent in R v Goltz[1991] 3 SCR 485at 532). 

Similarly, in JH we have no need for the hypothetical person to shock our sense of moral right and wrong, but a real person caught in a shockingly familiar scenario (as suggested by Dr Baillie’s expert opinion evidence and by the evidence-based arguments advanced by the Intervenor, Calgary Legal Guidance at paras 3, 57, 154, 227 and 228). Turning again to the criminal law, in the most recent decision from Ontario, R v Luke2019 ONCJ 514(Can LII), striking down the mandatory minimum sentence for impaired driving, Justice Burstein also has no need to turn to a hypothetical scenario. Ms. Luke is an exemplar of the devastating effects of colonialism and the justice system’s failure to respond to Indigenous heritage as well as a youthful first offender with “strong rehabilitative potential” (at para 45). The same sense of criminal justice permeates the JHdecision. Granted my parallelism argument depends on a s 12 Charter specific analysis but in many ways JH’s treatment is “punishment” for being someone who is perceived as “outside” of the norm. Of course, being labelled and then being contained apart from the rest of society should not and cannot determine the applicability or availability of basic rights.

Further analogies to the criminal justice system can be found in the way the MHA regime parallels with other mental health regimes engaged by the criminal justice system. For example, after an individual is found not criminally responsible (NCR) for an offence, the mental health system takes over with a decidedly criminal law flavour. In that regime, the criminal conduct constantly frames the response. Another parallel can be found in dangerous offender applications, which are decidedly hybrid in nature. In those criminal sentencing hearings, the risk of harm and dangerousness is driven by mental health assessments and treatment potentials. Notably, these regimes, NCR and dangerous offender, have been Charter tested (see R v Swain[1991] 1 SCR 933and R v Lyons, [1987]2 SCR 309respectively). In the case of NCR, the regime was legislatively re-fashioned to ensure compliance with Charterprinciples of fundamental justice including “ensuring the dignity and liberty interests” of an individual in that system (see Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services),[2006] 1 SCR 326at para 26). 

Even with this constitutional tune-up, there are continuing issues with the Criminal Code’s s 16 mental disorder test and the ensuing NCR label. I have discussed these issues in episode 18 of my podcast series on the Criminal Code. In that podcast, I comment on the historical basis for the NCR defence, which is virtually the same as the original 1843 M’Naughten Rule fashioned by the House of Lords, some say, at the behest of Queen Victoria who did not take kindly to the acquittal of M’Naughten for his delusional killing of the PM’s secretary. A nice recitation of the history of that case and subsequent rule can be found on the CBC website

In my post, I also mention the continual drive to change NCR as a result of public and political influence such as the changes contemplated in the now defunct Bill C-54, which sought to implement stricter conditions on those found NCR as a result of public push back on the Vince Li case. Vince Li, who was suffering from schizophrenic episodes at the time of his killing of a fellow bus traveller, showed excellent signs of recovery after treatment resulting in a loosening of his treatment conditions. Notably, section 8 of the MHA, providing the criteria for involuntary committal, was amended in 2010 in an effort to implement better controls over those suffering from schizophrenia (JH at para 179). Loved ones dealing with the disease found the dangerousness requirement for involuntary admission as a “too little, too late” response preferring the criteria of “harm” to self or others or requiring an even less restrictive finding of “substantial mental or physical deterioration or serious physical impairment.” Ironically, “dangerousness” was originally added to the criteria to provide more protections for those vulnerable to involuntary committal and was touted as “a significant safeguard” by the implementing government (at para 176). This change in statutory criteria from dangerousness was significant and although implemented with all good intentions, resulted in the involuntary detention of JH as someone who could possibly be a harm to himself or deteriorate if he started consuming alcohol. JH’s situation emphasizes the importance of that hypothetical scenario as a yardstick for statutory change. Instead of applying this test after the fact, all legislation should be subject to a reasonable hypothetical test to ensure the legislation’s effects do not capture those who should not be captured or in the JH case, should not be detained at all.

Having engaged the criminal justice system as the contextual template in which this decision arises, the legal analysis is more easily applied. This unhinging of the criteria from dangerousness meant that the grounds for involuntary detention was not anchored in the objective and purpose of the MHA, which, according to Eidsvik J. was for the temporary detention of “acutely mentally ill persons for the purpose of treatment and release back into the community” (at para 189). The purpose was not long-term warehousing as exemplified by JH himself, who was detained for some 9 months. Another statutory authority was available for long-term concerns under the Adult Guardianship and Trustee Act, SA 2008, c A-4.2 (at para 189). There was no grounding of the loss of liberty to a valid and beneficial objective in the legislative criteria. This glaring gap in the legislative criteria was apparent upon review of other provincial mental health statutes. For instance, the Ontario Mental Health ActRSO 1990, c M.7, connects involuntary committal to previous history of mental disorder, previous successful treatment of that disorder and the need to treat that disorder at the time of the application. Importantly, these provisions were placed in the Ontario legislation after the decision in PS v. Ontario,2014 ONCA 900 (Can LII), which found earlier sections unconstitutional. 

The statutory interpretation not only closes the legislative gap in the MHA but also gives closure to the injustice suffered by JH. Criminal law cases often turn on statutory interpretation and the principle of legality, which “affirms the entitlement of every person to know in advance whether their conduct is illegal” (see R v Lohnes[1992] 1 SCR 167 at p 180, McLachlin J) and constrains the power of the state (see R v Levkovic[2013] 2 SCR 204 at paras 32 to 33). Here too, the authority given by the law to public health facilities must be constrained and people subject to that authority must understand how their mental well-being can engage that power.  

Finally, the JH reasons resonate like a criminal justice system decision because of the societal context that runs like a thread in the in-between spaces of this decision. Mental health issues are no longer hidden inside the hospitals but are discussed frankly in public in an effort to destigmatize individuals who may appear to be on the “outside” of society. More public airing of these issues promotes understanding and lessens the fear of “harm” from those struggling with these issues. Systemic institutions must be part of the answer and part of the conversation if we are to move forward to a less aggressive and more supportive response to those members of our community who need our help. The JH decision tells us that those who are at risk of losing their life and liberty need our special attention. It is now up to the government, who has one year in which to remedy the MHA, to provide the leadership towards the fulfillment of this goal. This should not be a difficult task. Justice Eidsvik, in suspending the finding of invalidity to allow the law makers a 12-month grace period in which to revise the MHA and make it Charter compliant, gave detailed directions to the government on exactly how to do it (at para 317). There should be no time spent in considering the next steps – the steps have already been mapped out with care through the careful consideration of the court.

But let’s not forget the personal story. The crux of this story is about JH and how we are conditioned to react to certain people and certain behaviours. Like a children’s fable, the JH story reminds us that the emperor’s new clothes can be created from thin air or a princess can be hidden in plain view until we finally decide to really look. The case also reveals a deeper truth about these fables: that such narratives are often built on a certain view of what the world should look like and how it should be peopled with those who conform to the old tales. But this is real life in 21st century Canada and our commitment or promise to each other, and more importantly to the Indigenous peoples of Canada, must be to treat each other with dignity, respect and understanding. And the law, as the JH decision has shown, has a role to play in accomplishing this.

 

 

Episode 57: Section 71 Duelling is Gone But Section 70 Unlawful Drilling Remains (text version - see Podcast page for audio)

Episode 57 of the Ideablawg Podcasts on the Criminal Codeof Canada recommences after a lengthy absence. Since the last podcast, the Criminal Codeworld has changed. Significant amendments to the Code have deleted many sections and added others. Some more changes are yet to come but this Podcast is not about the future but about the now. What we “now” have may be a different Codefrom the initial one in 1892 but the similarities remain. Although a primary objective of the Code amendments was to clean up our criminal law by discarding some long unused sections, such as dueling under s. 71, there are still sections, which are candidates for removal. 

For instance, in this Podcast, the next section to be dissected and discussed is section 70 entitled “Unlawful Drilling.” Before you assume this must reference oil and gas implements, I must ask you to not reference what is presently in the news but to focus on the actual wording of the Coderequirements. Drill, in section 70, is all about unnecessary, unwarranted and unasked for military preening, parading and practicing. This offence may sound unnecessary, unwarranted and unasked for in the modern Canadian context, but it is an issue in other countries. For instance, in China, the dancing or parading of retirees, mainly women, early in the morning and late at night is a significant social and legal issue. For these women, marching or dancing or exercising, depending on your perspective, down the streets to traditional music and in military regalia including imitation rifles is a pleasure they have earned through their commitment to their country. Nevertheless, the parading, for whatever reason, is deemed a public nuisance by those of the sleep-deprived younger generation. Law makers have stepped in to the fray by imposing stiff fines for infractions despite the health and reputational benefits. 

Section 70 is not an all-out ban of these activities. It permits the Governor General to proclaim such a ban as a form of crowd control akin to an unlawful assembly. An offence is an indictable one attracting a maximum of 5 years less a day, presumably to ensure such an offence is treated seriously but not so seriously that a jury trial is available. 

The section reads as follows:

70 (1) The Governor in Council may, by proclamation, make orders

(a) to prohibit assemblies, without lawful authority, of persons for the purpose

(i) of training or drilling themselves,

(ii) of being trained or drilled to the use of arms, or

(iii) of practising military exercises; or

(b) to prohibit persons when assembled for any purpose from training or drilling themselves or from being trained or drilled.

(2) An order that is made under subsection (1) may be general or may be made applicable to particular places, districts or assemblies to be specified in the order.

 (3) Every one who contravenes an order made under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 I do recommend you review the previous Podcast, Episode 56, on unlawful assemblies to give this section context.

As mentioned, I do wonder why this section was not excised from the Code. Indeed, the section appears have been amended in 1992 albeit for the minimal purpose of ensuring the French version was consistent with the English one. There is no case law on the section. In terms of other legislative references, s. 14 (b) of the Federal Visiting Forces Act, exempts such visiting force from the possible ban under the section. The National Defence Act does not have a similar prohibition but does reference the Governor General’s authority to create regulations and orders relating to military drills and exercises. In terms of national security, such a prohibition is probably justified considering the potential danger of unsanctioned military exercises. 

In any event, this is definitely a section which could have been removed. As I pointed out in an earlier blog posting, You Missed A Spot! Amendments to the Reverse Onus Sections of the Code, the government in making changes to the Codecould have benefited from an extra pair of eyes to ensure nothing was left off the editing table. Perhaps this section will not go unnoticed in the next round of changes.

Next Podcast episode is on my favourite sections (now that duelling is gone), 72 and 73, on forcible entry and detainer!

 

THE SUPREME COURT OF CANADA LEAVES IT FOR “ANOTHER DAY”

As most “legalistas” or those ardent followers of new case law know, it is the most recent Supreme Court of Canada cases involving contentious and pressing legal issues, which attract our attention. We eagerly stand by at the appointed time, smart phone in hand, for that exquisite moment when the screen is refreshed to reveal the release of that much anticipated decision. As soon as the style of cause hovers into existence, the rush to read with speed commences. The race begins as we calculate how long it will take to comment or tweet on the case. The quickest and most fluid response is an indication of which legalista can digest and synthesize often hundreds of paragraphs of newly minted precedent. Admittedly, I have been part of this crowd commenting. The excitement one feels in reading a new case and the energy created by extending the legal mind beyond known parameters is truly exhilarating. 

 Yet, there is a similar excitement in the quieter cases. In those legal morsels of information, it is fun to find a pattern or trend. This connection between seemingly disparate and non-descript cases provides a richness to legal analysis. For this blog commentary, I decided to side step for the time the newest and notable cases of R v Le2019 SCC 34 and R v Barton2019 SCC 33to look at another recent decision R v Omar, 2019 SCC 32Omaris brief and easily discarded in favour of Le and Barton but when viewed in detail the case raises contentious and pressing issues worth discussing. Although Omar did not generate any buzz at the time of its release, it does ignite a worthy discussion on when the Supreme Court of Canada decides not to comment on an issue preferring to “leave” the “question for another day.”

The Omar decision is slim. It consists of 2 paragraphs worth of reasons amounting to 7 sentences. This is not unusual for a Bench decision given orally. It is written by Justice Brown, on behalf of a 7-person panel, who outlines both the majority and dissenting opinions even though Justice Brown himself is in the dissent. Assuming it is likely the readers of this blog commentary have not read the case, I will reproduce it in full as follows:

A majority of this Court would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal. The majority adds this. It may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day.

Justices Karakatsanis, Brown and Martin dissent, substantially for the reasons of Sharpe J.A. at the Court of Appeal.  The dissenters add this. It may be that consideration should be given to whether the police should caution persons that they stop and question that such persons need not remain or answer questions, but the dissenters would leave this for another day.

The appeal is allowed, and the convictions are restored.

There are a few notable comments to make on this brief scribe-like decision. I call it “scribe-like” as the tone of the decision brings to my mind the Ottoman Empire at its zenith when every military retinue included a Chief Scribe or Katib recording the events in a today’s version of live-streaming. This detached description of events leaves the reader with a lingering desire to hear more. Tantalizingly, the decision does “leaves” us with a desire to hear more about 2 significant issues. The majority “adds this”: a musing on whether s. 24(1) remedies can take the place of the s. 24(2) exclusionary response where there are multiple violations of the Charter involving sections 8,9, and 10(b). Still more intriguing is the dissent, who “leaves” us with “this”: the possibility of a SCC response to the habitual question left unresolved by case law of whether there is a positive duty on the police to advise a citizen that they need not remain and answer police questioning. As a criminal law professor who regularly teaches Moore v The Queen[1979] 1 SCR 195, a decision relying on the engagement of reciprocal duties between questioning police and responding citizens,I would welcome the much-needed modern approach to this issue. These two “we will leave for another day” issues are in fact of such pressing interest that this leave taking seems almost disingenuous and disappointing.

But this approach to “leave for another day” is not exactly unheard of in the annals of SCC decisions. A quick perusal of Supreme Court cases uncovers 80 such decisions since 1980 in which the SCC has left us on the edge of our seat. Looking at the number of such cases rendered on a yearly basis, not since 1997 has the Court done so in so many cases in one year. In 1995, there are 7 leave-taking decisions and in 1997 there 5 cases. So far, in 2019, there are 5 such decisions and the year is only half way complete. Looking at the number of such decisions per decade, over the span of 1990s, there are 32 “leave to later” decisions, which equals almost half of the total. The next decade, that of the years starting in 2000 and ending in 2010, has provided only 10 decisions, while the present decade from 2011 on to the present day has released 24 such decisions. 

What is the significance of this numeric counting? One could speculate that the divisiveness in the Court in the crucial period of the 1990s, where the Court rendered many split decisions, produced cases in which the Court left issues on the conference table in an effort to minimize the disagreements. The same can be said for 2019. Chief Justice Wagner has publicly announced his support for healthy dissenting positions. Perhaps this uptick in leaving matters for later is a result of this loosening of the consensus-driven decisions under former Chief Justice McLachlin. By deflecting some contentious matters to “later,” decisions can be rendered more readily on the core issues.

Yet, out of the 80 decisions, Omar stands alone as the only such decision rendered from the Bench. In a previous blog commentary, I wrote almost a year ago, entitled “Dispensing Speedy Justice”, I analyzed the increasing number of SCC decisions rendered in a summary fashion. It was my contention that the Court, in an effort to “walk the talk” from Jordan, is rendering more Bench decisions to move through the appellate backlog in an efficient manner. In doing so, the Court readily adopts lower appellate court decisions on the premise that if those reasons are well contrived then there is no reason for the Court to repeat or redo reasons. This position applies even in instances where the Court disagrees as many of these summary decisions involve dissenting positions. 

Omar is a reflection of this position but then some. The case is brief, involves a majority and dissent which approves of the lower appellate court’s majority and dissent respectively. But Omar is unique as we experience a Court flexing their SCC muscle by raising issues of import in a Bench decision without deciding them. By doing so, the Court can keep the decision brief and timely. The Notice of Appeal in Omar was filed January 2, 2019 with the final decision released after argument was heard on May 22, 2019, less than 6 months later. Contrast this with R v Barton, which also includes issues left for “another day” (see para 182), which took 7 months between argument and decision. Or R v Le, also leaving issues for “another day” (see para 128), which took 15 months for the filing of the Notice of Appeal to decision. 

In 2019 thus far, there are 12 criminal cases rendered orally from the Bench out of a total of 22 criminal decisions. With over half of the criminal appeals being treated in a summary fashion, it is no wonder that Omar takes this new form of decision-making even further. What this case suggests for the future is as thought-provoking as contemplating the newest cases such as Le and Barton. In the spirit of the SCC however, I will leave this discussion for another day. 

 

Sentencing to the Starting Point: The Alberta Debate (As Originally Edited By and Posted On www.ablawg.ca)

After R v Shropshire,[1995] 4 SCR 22, the future of starting points in sentencing seemed questionable but after R v M (CA)[1996] 1 SCR 500, the future of the concept seemed downright bleak. Yet, decades later in R v Lacasse,[2015] 3 SCR 1089, the Supreme Court still wrestled with the applicability of starting points in sentencing. Now, the province which embraced the concept is debating the efficacy of using this sentencing approach. Although the majority of the Alberta Court of Appeal has never wavered on the applicability of sentencing starting points, the meaning of such a tool has changed. In R v Ford2019 ABCA 87,the most recent pronouncement on the issue, the Court seems prepared to shed the past and move beyond this point of contention. 

 The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected.

A “starting point,” according to the online Cambridge Dictionary, is “a place or position where something begins.” This is a linear concept, reminiscent of elementary mathematical vectoring, where motion is conceived as implying a direction from A to B. We move through space and time from one point to another. A starting point anchors us in that space and carves out a place, a pinpoint, at which we can orientate ourselves. Without such concreteness of place and time, we would experience vertigo. We would be horribly out of place. A recent book by the theoretical physicist, Carlo Rovelli, explains this human need to belong to somewhere both literally and physically. In “The Order of Time,” Rovelli describes our entire world view as a human construct. “Entire” includes our conception of time. In fact, Rovelli persuasively argues, time is entirely a human construction which has little scientific basis. We created time to help us explain the world better and to better control it. Time, in other words, is humanity’s starting point. Time helps us understand events. If we can’t start with ‘In the beginning’ or the ‘Big Bang’ then we can’t completely appreciate the import and impact of those events. 

This brings us to Rovelli’s further contention that points in time are imbued with perspective. Perspective requires a particular point of view connected to the time event. According to Rovelli, “point of view is an ingredient in every description of the observable world we make” (at 153). This requires us to look at the world from within because that’s where we are located – within the world. Just as we cannot use a map to take us from point A to B without knowing where we are in relation to those points, we feel a need to make sense of the world through the eyes of the insider.

You may now ask how this travel through the space-time continuum relates to starting points in sentencing. It has everything to do with them. This seemingly side bar peregrination lends context to the debate on the space occupied by starting points in our sentencing nomenclature. Without considering the human desire to start from somewhere, we will not have the entire perspective before us. Without injecting the human perspective into an event, we are losing meaningful engagement with it and within it. 

To gain this meaning, we need to take a deep look at the source. Although Alberta did not create the concept of starting points in sentencing, it did perfect it in the 1984 decision, R v Sandercock,1985 ABCA 218. There, in the context of sentencing for a major sexual assault offence, Justice Roger Kerans, speaking for the panel which included the then Chief Justice James Laycraft, affirmed the Court’s “commitment to the ‘starting-point approach’ to sentencing” (at para 2). When I say, ‘the Court,’ I mean the entire Court. Justice Kerans, in paragraph 2, makes this unusual position clear. He states confidently that “All members of the Court were consulted ... and we are authorized to say that the conclusions in these Reasons were approved by a majority of all of the judges of the Court, as well as this panel, and are to be considered as a guideline.” With this sweeping statement, starting-points in sentencing in Alberta were swept in. 

Yet, the Court of Appeal was no stranger to that concept even then. The starting-point approach was first articulated as a guiding principle in the R v Johnas decision, 1982 ABCA 331. In Johnas, the Court considered the appropriateness of a starting-point for robbery in light of the sentencing of several offenders for factually similar circumstances but with differing personal backgrounds. Some of the offenders had criminal records, while others were youthful offenders (at para 2). All of the cases involved the late-night robbery of small retail venues, such as convenience stores and gas bars (at para 3). Although violence was threatened, no victims were harmed (at para 4). At the time, these types of robberies were of great community concern. In terms of general sentencing principles, due to the gravity of the robberies, the principles of deterrence and denunciation were of paramount concern rather than rehabilitation. On this basis, the Court found that “we must recorda term of three years imprisonment as a starting point in the seeking of an appropriate sentence” (at para 19). The word “record” is underlined for emphasis. Remember that word.

 In any event, the Court does recognize the individuality that is sentencing. The general principles in determining a fit sentence required the Court to “speak of generalities” but through the perspective of the individual and the circumstances of the offence to arrive at a fit sentence (at para 16). It is important to note the duality of this sentiment and the juxtaposition of terms. The specific becomes the general as the individual is sentenced to a term of imprisonment which fits the type. Yet, the Court does this as an imperative – “we must” – and “records” or keeps the information by storing it in the precedential archive for future use. The individual may still be present, at the point of the imposition of sentence but is the individual really present at that pre-recorded starting point? 

The Alberta Court of Appeal was not breaking new ground in Johnas but was, through clear court-driven consensus, normalizing starting-points and, in so doing, embedding the approach into well-established sentencing principles. Other provincial appellate courts were using a similar approach, but labelling is everything. In the Nova Scotia Court of Appeal, for example, the Court referenced a “minimum” term of imprisonment for the Johnas-type of robbery (see R v Hingley (1977), 19 NSR (2d) 541 at 544). This was not consistent with the Alberta branding of starting-points (Johnas at para 22). It was too literal and restrictive, permitting discretionary decreases from that term only in “exceptional mitigating circumstances” (see R v Owen (1982) 50 NSR (2d) 696). This seems to suggest that the Johnas Court still recognized that sentencing was an exercise in discretion. 

Yet, the Court does not use the word “discretion” in the decision but does use the phrase “judicial reasoning” (at para 31). Judicial reasoning is a process, or a form of analysis, employed by a judge in arriving at a decision. It involves how the sentence is determined not the mechanisms used. Starting points are therefore about the consistent application of sentencing principles based on a “norm for the type of offence involved” (para 31). This norm is developed “by comparisons to other cases, by experience, by the seriousness of the offence and by its prevalence” (para 31). It is only after the norm is determined that the Court then looks at the aggravating and mitigating factors involved in the specific case (para 31). Sentences, in other words, are objectively determined but through the unique perspective of the offender and the specific circumstances of the case. No two sentences will ever be precisely the same. In support of this position, the Court quoted Lord Justice Lane said in R vBibi, (1980) 71 Cr App R 360, who stated that:

We are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach. (at 361)

Nevertheless, the distinction between uniformity of sentence and uniformity of approach is subtle. For instance, in the UK, Lord Justice Lane’s jurisdiction, uniformity seems to be the key word for both approach and sentence. A sentencing council, comprised of legal and non-legal members, create sentencing guidelines mandated for use in determining sentence in court (https://www.sentencingcouncil.org.uk). This council strives for “greater consistency in sentencing, whilst maintaining the independence of the judiciary.” These guidelines go further than a matter of judicial reasoning by setting a sentencing point based not only on legal principle and case authority but also on public consultation. This approach widens the field of perspective.

Having pursued the starting point to its starting point, we can fast forward to the Supreme Court’s most recent treatment of the approach in the Lacasse decision. Thisdecision sets the standard for sentencing across Canada by not setting a standard. In that decision, the majority of the Court reiterated sentencing principles found in the common law and as reflected in s 718 of the Criminal Code but at the same time confirmed the essence of sentencing as a discretionary process. The sentencing judge, as the eyes and ears of the Rule of Law, is in the best position to fashion a fit and appropriate sentence. In this way, sentencing is a true partnership between the principles, which guide the judge, and the judge’s own sense of justice as see through the factual, legal and societal lens. 

This human touch to sentencing is therefore, according to Lacasse, connected to the standard of appellate review. Deference to the sentencing judge serves to contain appellate review to demonstrably unfit sentences resulting from an error in principle and law. The principle of deference, in this way, illuminates the process of sentencing by recognizing responsibility lays on that judge to craft a just and fair sentence. It is a deep responsibility indeed. A responsibility that despite the comments in Lacasse has resulted in division in the Alberta Court of Appeal on the parameters in which that deference must be wielded. Yet, the recent decisions rendered by the Alberta Court on the issue suggests the softening of the starting point from a hard start to a soft reference point. Such approach, is more consistent with the Supreme Court’s views of the issue.

There have, of course, been critics of the more flexible approach to starting points. One matter of contention in the Alberta Court of Appeal started before Lacasse but continued in earnest even after the release of the decision. In a series of dissenting opinions (R v Murphy2014 ABCA 409 (Wakeling JA is not in dissent but renders a concurring judgment) Rv KSH2015 ABCA 370R v Rossi2016 ABCA 43R v Vignon2016 ABCA 75R v Yellowknee2017 ABCA 60), and R v SLW2018 ABCA 235, Justice Thomas Wakeling believes appellate courts “must provide an analytical framework for the assistance of sentencing courts” (KSHat para 60,Rossiat para 56, Vignon at para 45 and Yellowknee at para 52). In each decision, Wakeling JA creates sentencing protocols for sentencing judges, akin to the computer coding language of “if, then.” These “subsets” or “bands of offences” (see e.g. SLW at paras 97­–98) reflect categories of sentences in which gravity of the offence is the variable measurement. If an offence falls within a band, then the sentence to be imposed is easily ascertained and articulated.

Although Wakeling JA perceived this framework as providing articulable sentencing structure within a discretionary decision, other appellate courts disagreed. As later commented on by the Manitoba Court of Appeal in R v PES2018 MBCA 124, Justice Wakeling’s effort created “rigid analytical categories,” which “unnecessarily limit the discretion of the sentencing judge.” The Manitoba Court emphatically rejected this unifying approach (at para 77). The Alberta Court of Appeal too rejected this model in R v Gauvreau2017 ABCA 74and  R v RGB2017 ABCA 359. In RGB, the Court made it “absolutely clear, it is not the law in Alberta that a sentencing judge must apply the three-subset model in imposing sentence for these types of offences” as mandated by Justice Wakeling. The Court went further by categorically rejecting the Wakeling Model and “sentencing grids in general” (at para 18). In the Court’s view, the approach “fetters the proportionality analysis” (at para 18). 

Notably, Justice Wakeling continued to recommend “an analytical sentencing framework” even after the rejection of it. In the 2018 SLW decision, Justice Wakeling makes the case for his approach by referencing other jurisdictions such as the UK, which favours such a framework. As mentioned, the UK experience involves community input through a sentencing council, which does provide detailed and refined sentencing guidelines for certain offences, albeit not all. In Justice Wakeling’s last effort on the issue, he pointedly remarks in SLW at paragraph 100 that “because Parliament has not established a sentencing commission with a mandate to prepare sentencing guidelines, it falls to appeal courts to do so.” Wakeling JA’s comments did not attract any further attention from the courts. 

In R v Suter,2018 SCC 34, a decision of the Supreme Court of Canada rendered on June 29, 2018, the same day as the SLW decision, the Supreme Court considers a sentencing appeal from the Alberta Court of Appeal. Notably, Justice Clement Gascon, albeit in dissent, imagines an “analytical sentencing framework” already available in the Criminal Code sentencing provisions. At paragraph 153, Justice Gascon describes the statutory scheme as “carefully drafted” and as provisions which were “enacted as ‘a step towards more standardized sentencing, ensuring uniformity of approach’ (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at 1.59).” Justice Michael Moldaver for the majority in Suter, reiterates sentencing ranges “as merely guidelines” (at para 24). He too confirms the paramountcy of the statutory framework in the Code by suggesting that “as long as the sentence meets the sentencing principles and objectives codified in ss 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.”It seems the Supreme Court views the statutory authority as sufficient sentencing guidance. 

Another, earlier riff, on an analytical framework for sentencing can be found in R v Hamilton,2004 CanLII 5549 (ONCA). There, Justice David Doherty envisions sentencing as “a very human process” (at para 87). In his view, “most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing” (at para 87). In discussing the appropriate range of sentencing for cocaine importation, Justice Doherty, after running through the various sentencing objectives, principles and sentencing precedents touches upon the meaning of a sentencing “range” for an offence. At paragraph 111, he explains how a range for a specific offence “does not determine the sentence to be imposed on a particular offender as the range is “in large measure a reflection of the ‘objective seriousness’ of the crime.” In other words, the range of sentence is a short hand for a constellation of objective criteria arising from a factual matrix including, in the example of cocaine importation, the amount of the drug imported and the commercial aspect of the incident. That range is then tailored to the specific instance by consideration of aggravating and mitigating factors resulting in a sentence which may be at any point throughout the appropriate range. Perhaps, even, Justice Doherty explains, the sentence imposed could be “well below” that range should the circumstances of the offence and the offender require it. Sentencing is thus humanized through the filling in of the objective criteria with real, tangible circumstances. 

Applying this sentiment, starting points may provide the objective point needed to focus or pin down the point of reference for a sentencing judge. But this point cannot be further objectified through a rigid container approach. Rather, the sentencing judge breathes life into the reference point through the just application of principles and objectives, which are responsive to and reflective of the narrative before them. In appellate review, this should mean deference to the sentencing judge who considered and understands the complexities of the case before them. It should not mean a recalibration of a sentence back to the starting point without a clear error as described in Lacasse. Using a renaissance art analogy, starting points should be the fresco cartoon, which roughly sketches and maps out the image, not the finished fresco imbued with colour and movement. That final piece is wholly created through the discretion of the sentencing judge.

Although the Wakeling experiment ended after SLW  in 2018, this foray into a more structured approach to sentencing was not so off the mark of the original starting point concept. Wakeling JA’s use of “subsets” or “different categories of offence classified by their degrees of seriousness or blameworthiness” (Yellowkneeat para 70), is essentially the same as the Court’s penchant for categorization through characterization of offences to assist in determining a starting point sentence. For instance, in R v Pazder,2016 ABCA 209,the court in an attempt to create a uniform approach to sentencing and uniformity of sentence, delineated distinctions between first level and second level offenders for commercial drug trafficking sentencing (at paras 13–14). The difference between the three-year starting point for level one, a more minor form of trafficking, and the four and a half year starting point for level two, involving the wholesale dealing of drugs, was found in the moral culpability or personal responsibility of the offender (at paras 15–17). The degree of responsibility could increase or decrease the sentence from the starting point (at para 18). Similarly, the LaBergecategories of culpability (1995 ABCA 196at paras 8–12) have resulted in highly regimented sentencing guidelines for manslaughter as sentencing submissions involve fitting the case into the desired sentencing category. Categories as a signature of blameworthiness was further approved in the five-panel decision in R v Arcand2010 ABCA 363, the pre-Lacassedecision upholding the Court’s approach to starting points and then again later in R v Hajar2016 ABCA 222, rendered after Lacasse

The Hajar decision reaffirmed the starting point mentality in the context of the starting point for a major sexual interference against a child. A five-panel court was assembled, producing a majority decision of three justices, a concurring judgment from one justice and a sole dissent. Even so, according to R v DSC2018 ABCA 335 at paragraph 40, “Hajar is binding on all trial judges in the province. Until it is overruled by the Supreme Court of Canada, or reconsidered by another five panel of this Court, it is binding on all appellate judges.” This statement directly responded to an earlier 2017 decision, R v Gashkanyi2017 ABCA 194,in which the majority essentially disagreed with Hajar. The majority in that case included Justice Ronald Berger, known for his dissenting positions. To be even more clear on the Court’s disapproval of Gashkanyi, in R v Reddekopp2018 ABCA 399, the Court unanimously reiterated that Gashkanyi “did not change” the three-year starting point for major sexual interferences cases (at para 5). The Court went further by clarifying that a starting point is “not a mandatory minimum sentence” (at para 10) but is only a point of reference. Interestingly, Justice Wakeling is a member of the Reddekopp panel, which decision was rendered nearly six months after Justice Wakleing’s last foray into an appellate-driven sentencing framework.

Yet Reddekoppwas but one of fifteen Court of Appeal decisions from 2018 discussing starting points in sentencing. For the most part, these 2018 decisions continue using the starting point as the focal point of the analysis. An exception is the decision in R v Gandour2018 ABCA 238. The Court, in allowing a Crown appeal against sentence, at paragraph 55, found the sentencing judge misconceived the scope of the starting point for a home invasion offence. According to the Court, the judge viewed the starting point as a “cap, not notional places to start the analysis.” This perspective suggests the starting point is a place to anchor the sentencing analysis and not mechanically binding number. 

However, a few months later in R v Godfrey2018 ABCA 369, the majority decision spends much of its time discussing the precedential effect of starting points. The majority admits that as per Lacasse and Suter“it is not per se an error in principle for a judge to sentence outside a sentencing guideline” (at para 4). However, in their view, starting points are “part of the law of the province” and are not “established in the abstract” (at para 5). In short, starting points are there to be recognized and considered as part of the sentencing process. Indeed, according to R v Arcand2010 ABCA 363, there is a three-step process in applying the starting point – akin to an analytical test (Godfrey at para 5 and 8). The Godfrey majority describes starting point sentences as “an assimilation and amalgam of all of the relevant sentencing considerations. They are not just ‘one more source of guidance’ among ‘competing imperatives’. They promote parity in sentencing, and consistency in weighing the gravity of the offence and the responsibility of the offender” (at para 6). In doing so, the majority in Godfrey cautions “local judges” to follow the starting point analysis and as they “are not entitled to invent their own standards in criminal sentencing isolated from national or provincial/territorial standards” (at para 7). Justice Brian O’Ferrall in dissent does not take exception with the concept of starting points as persuasive authority but contextualizes the starting point analysis as one of many “guides” to sentencing (at para 26). As Justice Gascon did in Suter, Justice O’Ferrall looks to statutory authority and codified sentencing principles as providing guidance as well (at paras 27–28). Appellate courts do also provide guidance but only to the extent that they review and analyze “hundreds of sentencing decisions” to arrive at the starting point (at para 29). In this way, starting point sentences are a grass roots venture, informed by the organic process of individual cases reviewed in reference to other cases. As Justice O’Ferrall aptly puts it “guidance is a two-way street” (at para 29). The concept of binding authority gives way to a communal perspective.

Starting points as binding authority or one of many guides to sentencing is another aspect of the concern with starting points as effective minimum sentences. Although in R v Arcand2010 ABCA 363(at para 131), the Court of Appeal emphatically found that “starting points do not amount to minimum sentences,” there was a notion earlier in the Supreme Court of Canada that “there is a risk that these starting points will evolve into de facto minimum sentences” (see Lamer CJC’s remark in R v Proulx, 2000 SCC 5 (CanLII) at para 88). With the advent of an increasing number of minimum sentences in the Code, the Alberta Court has continually reiterated the distinctiveness of starting points. The most recent decision commenting on this, R v Ford2019 ABCA 87, is both a decision on starting points and on the constitutionality of minimum sentences for sexual interference. In that decision both concepts are overlaid upon each other resulting in, as discussed further below, in a softer approach to starting points. 

This softer view seems to come “top up” as per Justice O’Ferrall’s comments in Godfrey through the application of starting points in the lower courts. The Honourable Judge J. Maher explores the meaning of starting points in R v BCP2019 ABPC 2. In this decision, Judge Maher compares starting points with sentencing ranges and discusses the preference, as a sentencing judge, for the starting point approach (at paras 11–14). In his view, starting points are more flexible and less confining than a sentencing range which involves “floors” and “ceilings” creating a rigid field of sentences absent exceptional circumstances (at para 12). Conversely, a starting point has no end or beginning and therefore releases the sentencing judge from the blinders created by a rigid range. Although this reasoning is attractive, it seems at odds with Justice Doherty in Hamilton and with the Supreme Court in Lacasse. Ranges may in fact provide more options as guidelines not requirements. Additionally, “exceptional” circumstances provide a generalized label that only garners meaning from the facts of each individual case. Still, as recognized in R v Alcantara2017 ABCA 56at paragraph 45, the starting point also provides “guidance” but does not “fix a mandatory number.” 

As later restated in Ford, in the Court’s view, there is a clear dividing line between mandatory minimums and starting points (at para 32). In Ford, the sentencing judge imposed 6 months imprisonment for sexual interference of a child, far below the Hajar starting point of 3 years. Although, Ford is notable for striking down the mandatory minimum of 12 months required for the offence under s 151, the Court, through the decision of Justice Martin, suggests Judge Maher’s view of starting points may in fact be correct. While still approving of Hajar, the Ford court upholds the 6-month sentence imposed on the basis that the accused suffered from mental challenges and was therefore less morally culpable. The starting point may be present in Ford but as a background reference, a reference point from which the sentencing could be viewed through the factual perspectives. This blurring of the starting point into a contextual guideline is evident in other 2019 Court of Appeal decisions such as in R v Paulson ,2019 ABCA 147and R v Costello2019 ABCA 104

Starting points are needed but they must not be applied in the vacuum devoid of individuality. In deep space and time without a reference point we are lost. So too in sentencing as defined in Reddekopp, a starting point is “as the term suggests, it is that point at which the applicable principles and objectives of sentencing are applied to the relevant circumstances of the case to arrive at a fit sentence” (at para 10). Points of light can guide us, but we must do so with the perspective of the within. Justice Martin reminds us in R v Boudreault2018 SCC 58 ,that “sentencing is first and foremost an individualized exercise, which balances the various goals of sentencing” (at para 58). The Ford decision suggests the Alberta Court of Appeal may finally be in sync with the “highly individualized” and “delicate balancing” of sentencing (see para 4 of R v Suter). Starting points or not, sentencing Courts must approach this exercise with the individual at the centre of that point – not alone – but in the contextual mix of legal principle and circumstances of the case to arrive at a fit, just, fair and proportionate sentence. This is the perspective which must lie at the core of the point from which sentencing is imposed.

 

A LOOK DOWN THE ROAD TAKEN BY THE SUPREME COURT OF CANADA IN R V MILLS

Perhaps we, in the legal world, should not have been surprised by R v Mills2019 SCC 22, the most recent decision on privacy and the application of that concept in the section 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Millsmay be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word.

I have already suggested the facts matter and they do. Mills was charged with offences, colloquially described as internet child luring offences. Through the medium of social network, luring does become decidedly lurid as sexually explicit messages and pictures are sent to entice children. In Mills, the contact with fourteen-year old “Leann” led to the “in person” meeting, which ended in the arrest. All seemingly run of the mill, so to speak. But what “made all the difference” in this case is the reality of “Leann” as a false identity for a police officer. In many ways, this investigative technique is no different than many other undercover operations such as police posing as sex workers or drug dealers. But what makes this technique unique is the manner in which the investigation was done. By filtering the technique through internet wires, the relationship possibly becomes a “private communication” attracting s. 8 Charter interest. At the core of this argument lies the “ghost in the wires” and whether there is a reasonable expectation of privacy in this type of internet communications. 

I say “this type” of “communication” because of the decision in R v Marakah,2017 SCC 59. There, the majority viewed text messaging between potential drug dealers as a private communication. Stripped of the bad personhood attached to that messaging, the majority called out the relationship engendered by such communication as attracting a reasonable expectation of privacy. Like the “reasonable hypothetical offender” (See e.g. R v Morrisey2000 SCC 39 at para 2)  or, to use the new age term, “reasonably foreseeable applications” (See R v Morrison2019 SCC 15 at para 170) used in s. 12 analysis, the messages become a statement of content neutrality (See Mills at paras 25, 110, 117­–122). There is no value judgment placed on Marakah’s bad choice of friends or even worse, his bad judgment to deal drugs. Instead, the focus is on fostering relationships, as in the law of privilege, and what it takes to protect and maintain private relationships in the context of law enforcement. In this way, the concept of communication as relationship-building is further explored in s. 8 through the relationships we see ourselves having with the state. 

Interestingly, the dissent in Marakah held onto the hard focus of hardware by emphasizing the container in which the communications were residing (at para 151). This view is an easy extension from previous s. 8 case law including the majority in R v Fearon, 2014 SCC 77, viewing the search and seizure or rather, as in the case of digital devices, the seizure and search of the device as the key to the analysis. However, this perspective failed to recognize the pervasiveness of the privacy issue throughout all aspects of s. 8. From standing to s. 24(2) exclusion, reasonable expectation of privacy creates the Charter space for the s. 8 discussion. Unsurprisingly, Mills does not step back into the container as the analytical driver of the decision. Instead, it is the meaning of relationships, which creates the patchwork of decisions in Mills

Yet Mills does not just define relationships worthy of s. 8 protection. Nor does the decision define relationships in a vacuum. Rather it defines relationships in the context of the normative standard embedded into the reasonable expectation of privacy analysis. In R v Reeves2018 SCC 56, Justice Karakatsanis, at paragraph 41, touted the “normative, not descriptive” standard as the overarching theme of s. 8 to acknowledge what we in the cyberworld already knew – that electronic conversations are human not machine directed. Instead of this free-floating concept of human relations, the majority in Mills takes this chimerical-like quality of normativeness and pins it squarely onto the Criminal Code. Just as the criminal law reflects our fundamental values by underlining those acts worthy of moral approbation through just sanctioning, so too does the normative quality of s. 8 reflect the morally based vision of a safe law-abiding society.

In Mills, the Supreme Court is not navel gazing or conducting blue sky visioning. In Mills, the majority looks directly at the conduct in question, no neutrality here, and sees the so-called relationship between a child “stranger” and a criminally-minded adult as unworthy of protection. Section 8 is not a shield; it is not the “happy place” where we are free from state intervention, and it is certainly not the private place where we can propagate illegal conduct to our hearts’ content. Yet, this normative view does not take away from the shades of privacy previously recognized by the Supreme Court. As in R v Jarvis2019 SCC 10, privacy has a universal meaning. In this way, a relationship stylized by the manner of communication or defined by a space where privacy ebbs and flows, what will be protected through s. 8 is deeply contextualized. This is vertical contextualization, in which the Court drills down deeply through the stakeholders’ strata. The “totality of the circumstances” is viewed not just through the accused’s lens, not just through the perspective of the victims, but also through the community’s sense of justice. As in other Supreme Court decisions, where the public interest shares space with individual rights (See e.g. R v Jordan2016 SCC 27 at para 25) normativeness involves collectiveness.

Nevertheless, rejecting the Mills scenario as Charter worthy still keeps the s. 8 conversation alive. True, in essentials, Mills is about what is not a privacy right under s. 8. Yet, the decision also provides the contours for what is or possibly still could be engaged by s.8. For instance, the intersection of electronic communications and Part VIinterceptions of that communication is still very much in issue. From the pseudo-majority of Justice Brown to the pseudo-majority of Justice Karakatsanis (I say “pseudo” as Justice Moldaver concurs with both decisions making both majority judgment worthy) including the minority view of Justice Martin, the presence of surveillance becomes the indicator of interception. For the majority, surveillance is decidedly old-school involving state authorities who are outside of but looking into the private lives of citizens, whilst Justice Martin flattens out surveillance as the state, no matter where placed, looking at citizens, no matter where located. Certainly, Justice Martin’s description is more attune with the Internet of Things and the connectivity we all now experience in which no-one knows who is watching whom. To distill the differing viewpoints on the issue, this is “watching” versus “intruding.” Of course, since Hunter v Southam[1984] 2 SCR 145 and the s. 8 textual conventions since that decision speak of state intrusion. Watching, on the other hand, is much more insidious, much more powerful, and of much more concern to the community sense of justice.

Another issue unresolved by Mills is the Charter applicability in the transitional grey area between state intrusion to state participation. If s. 8 of the Charter is not concerned with investigatory techniques in which the state initiates a conduit for enforcement, then when does s. 8 become relevant? This is where previous case decisions provide no clear answer. To see this obfuscation, we need to look the intersection of two scenarios. One scenario focuses on third party consent while the other engages the Mills situation emphasizes when state intrusion is used, without prior judicial authorization, for the purpose of implementing an investigative technique. 

Third party consent is not novel. Like reasonable expectation of privacy, third party consent can impact all stages of the s. 8 analysis. It impacts standing issues through the measurement of control. It impacts whether state authorities have lawful authority to seize and access an electronic device belonging to the accused or a third party. Just as privacy is not an “all or nothing” concept (R v Jarvis, 2019 SCC 10 at para 61), neither is third party consent (See R v Cole2012 SCC 53). People share ideas, homes and hearts. People can too share control and authority over an object or a conversation. Millsdistinguishes the state as initiator of the private communication from the state as intervenor into a private communication despite consent from a third party. There is still Charter room in the shared conversational space where a third party is involved be it the concerned family member who hands over a device or the individual participating in the communication.

Mills permits the state actor to be whomsoever they need to be for investigative purposes but also as the initiator of the ruse. The decision leaves open the scenario where the concerned or involved third party hands over a device and the state authorities continue the conversation under the cover of the true participant of the communication. Here, there is still an intervention or a looking into a communication albeit through the eyes of the known recipient. There is a relationship, however the majority or minority defines it. Even if the original participant consents, Millsdoes not pronounce on the efficacy of that unauthorized intervention. This means, in Supreme Court terms, that we can expect more decisions on the issue.

 You may have noticed that I referenced in my opening paragraph a much-loved poem by Robert Frost, “The Road Not Taken.”  The poem is famous for symbolizing life’s choices and where they may or may not take us. In fact, that is not what the poem is about despite our ubiquitous reference to it as a life changing or even life affirming metaphor. When read carefully, the poem suggests we misread our life decisions. “Ages and ages hence” we will tell a tale of how we stood on the brink and choose a more challenging life journey. Yet, in actual fact, there was no such life altering choice to be made at the time as the roads “equally lay” “just as fair.” Perhaps the same can be said of the Mills decision. The decision does not take us down a road that makes “all the difference” but through the same interconnectivity of privacy ideas we already have before us. ‘Same but different’ may be an apt description of this decision and other recent Supreme Court rulings. Indeed, the fractured decision best mirrors who we are as a society, which is far from cohesive or uniform. 

We are presently very much at the crossroads of privacy and in the criss-crossing wires of the Internet of Things. There is an element of uncertainty as we stand at that intersection. But uncertainty may not be such a bad or scary prospect. Looked at with eyes wide open we can assess the potentialities of s. 8 and see perhaps through the differing perspectives of Mills a way forward taking with us a vision of who we want to be.

 

Some Thoughts On Property, Privacy, and Criminal Law

I have been spending a good portion of my time outside of my regular duties with mooting competitions and writing a paper. One task is seemingly very practice minded while one purely academic. I see it differently. Engaging in an analysis of a case decision produces a repository of creative and imaginative arguments, which can have practical impact in court. To understand a case decision is to embark on a legal and literary adventure that serves as the inspiration, the creative spark, for new unknown approaches to old known areas of the law. 

To be sure, at first glance, doing a theft under case in provincial court has little to do with a Supreme Court of Canada decision on s 8privacy rights. Or does it? Theft is a public law offence yet by its very nature it is about private rights. This is mine not yours. It is about territory and possession. But hidden within the weeds, within the legal structure of theft, is the conflict between public and private which s 8 engages. This conflict can be seen, for instance, in the defence of colour of rightthat is embedded into the elements of theft. Although mistake of law is generally no excuse, when it comes to believing what is mine is mine, it provides a complete answer to a theft charge. That shows private rights abound in criminal law, but privacy, as a personal motif, is an entirely different matter. 

Private rights are not necessarily privacy rights. Yet, there are distinct parallels. In by-gone days when a phone was static, involved a dial, and could not fit in your pocket, the privacy concepts protected by s. 8 were territorial and oriented around the immediacy of personal space. Although s. 8 was in place to protect the person and not a place, it did protect the person’s personal territorial space. Territorial space may not be as solid as territory as land, but it has density to it and can be visualized. Picture the street view of Google mapand the Pegmanwho can be plucked up, carried, and placed into a circle of space. We are that Pegman when it comes to s. 8. Every placement serves to define our s. 8 rights with a property-like quality. This is my space not yours. That is until modernity arrived to displace the solidity of territory. And with that newness came a totally different conception of privacy, cut free from the shackles of Google. Or, maybe more accurately, detached from the map that is Google to be re-imagined in the same cyberspace of Google, the internet platform.

How this new formulation of privacy impacts old considerations of property interests me. Section 8 search and seizure law has kept pace with modernity and changing societal values, but property law seems to lag far behind. Theft, for instance, involves the taking or conversion of “anything” under s. 322 of the Criminal Code. This taking deprives of the owner of that “anything.” Although, the “anything” is typically a tangible thing, it may consist of a conversion of an intangible, as is the case of a taking of a bank credit for instance. However, even this unseen anything is seen in the inner eye. We can all visualize and objectify a bank credit into money in our wallet. The solidity of which cannot be denied. 

The difficulty arises when the “anything” of theft is an idea or better yet as in R v Stewart, a 1988 decision of the Supreme Court of Canada, the theft of confidential information. There, a document containing confidential information, was copied, and therefore not considered a taking of “anything.” The information was still available to the original owner of the information and there was no deprivation. Policy dictated that such wrongs be righted through the civil law not underlined by the condemnation of the criminal sanction. This narrow view of what can be stolen may be driven by policy or even, as Justice Lamer suggested, by the desire to let the lawmakers in parliament create such crimes, but it is nevertheless an antiquated approach to what a person “owns” or “possesses.”

The decision in Stewartcertainly does not wear well when viewed in the s. 8 context. It also confirms that in the property crime world tangibles, or those things that can be objectified, matter most. In today’s connected world, it is mind over matter as tangibles dissolve into a web of technology. Parliament, at least, paid Stewartsome heed and did legislate crimes relating to the misuse of computer images and data. But these new offences seem to be a concession to Stewart, not in defiance of it. True, confidential information can be memorized and copied leaving the information still available to the original owner or originating source of that information. It is not, however, the availability of such information that impacts the deprivation resulting from the taking of that information. By taking the confidential information, through cutting and pasting or through storing it in the Cloud, the original owner or source of that information is deprived of control of that information and deprived of choosing when, how and in what format that information would be released and used. 

We can push the property envelope even further if we look at “taking” through s. 8 Charter REP (reasonable expectation of privacy) eyes. A taking of confidential information would be considered a search and seizure pursuant to s. 8 of the Charter. In s. 8, we see a movement away from the castle-like solidity of territorial privacy to the ephemeral empty cyber spaces where we build castles in the wires. It’s in s. 8 where the full expression of privacy as a virtue is protected and nurtured. Ideas, thoughts and confidences do not just reflect an attitude (despite thoughts to the contrary in R v Benson,2009 ONSC 1480) but form an individual’s biographical core. It is that taking of data, that deprivation of choice in terms of when and how we disclose our secrets, which gives property perhaps a new and different meaning under the criminal law.

 

 

 

Why Reconsider W(D)? (Cross-Posted From www.ablawg.ca)

I have written at great length on the W(D) decision, R v W(D)1991 CanLII 93 (SCC), and the extraordinary impact that case has on our justice system. In my recent article on the issue, aptly entitled The W(D) Revolution, (2018) 41:4 Man LJ 307, I posit that the decision reflects a watershed moment in the assessment of credibility in criminal cases. The case decision, outlining the analytical approach to be taken in assessing credibility when there are “two diametrically opposed versions”of events, revolutionized such assessments by providing a template for integrating factual determinations within the burden and standard of proof (see e.g. R v Avetysan, 2000 SCC 56 (CanLII)at para 28). The W(D) state of mind was one that ensured that the principles of fundamental justice as distilled through the special criminal burden and standard of proof, would remain front and centre in the ultimate determination of guilt or innocence of an accused. This is not to say that the path towards enlightenment has not been strewn with difficulties. To the contrary, to recognize the imperfections of the decision and to experience the twists and turns of W(D) as pronounced upon in future SCC decisions, is to appreciate the W(D) ethos even more. W(D) has needed reinterpretation and reaffirmation throughout the decades since its release, but the question of whether it needed a reconsideration was at issue in the recent decision from the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (CanLII).

Before we consider whether we reconsider W(D) there may be some of you, albeit I am guessing not many, who are unaware of the decision and the principle for which it is named. In W(D), the jury, as the trier of fact, was faced with competing narratives from the complainant and the accused on a sexual assault charge. The accused was convicted. On appeal, the issue was the manner in which the trial judge instructed the jury on the task of assessing the disparate evidence. This concern was not a new one. Previous appellate decisions had warned of the “credibility contest” conundrum in which the trier of fact improperly believes they are obliged to base the verdict on choosing between two stark alternatives of believing the Crown evidence or the defence evidence (see e.g. Regina v Challice, 1979 CanLII 2969(ON CA) at 556). By seeing the decision as binary, the trier was not considering the legitimate alternative – that the trier of fact is unable to resolve the conflicting evidence and is simply left in a state of reasonable doubt. This error effectively shifted the burden of proof, requiring the accused to provide a credible explanation. 

Although the issue at the time of W(D) was far from unique, the error was common. Something more than appellate review was needed. This “something more” came in the form of Justice Cory, speaking for the majority in W(D), who attempted to break the cycle of error by suggesting an instruction that would convey the correct approach. An approach that would be simple yet convey the importance of the burden and standard of proof in a criminal prosecution.

Justice Cory, sadly, was wrong. W(D) has been referenced in 9701 cases and counting. Notably, it has been referenced in 38 Supreme Court of Canada decisions. Of those 38, two of those decisions are from the past year, one, R v Calnen, 2019 SCC 6 (CanLII), as recent as February 1, 2019. In Alberta, W(D) has especially resonated with 968 case mentions, almost the same number as British Columbia and twice as many as Saskatchewan. The Alberta Court of Appeal has considered the case a little more than 50 times from 2015 to present. In this context, it is unsurprising that the Alberta Court of Appeal felt it necessary to reconsider W(D)in Ryon. Indeed, the issue had been raised almost two years earlier in R v Wruck2017 ABCA 155 (CanLII), an application for judicial interim release pending appeal heard before Justice Watson, who later delivers a concurring judgment in Ryon. Presumably, the Wruck appeal was not to be after the bail application was dismissed and the reconsideration was left for another day and another case. Although Ryonappears to be just that case, as I will explain, the Court had already revisited W(D)in 2012.

Before we turn back the W(D) clock, we need to take a close look at the most recent decision in Ryon. Justice Martin writes for the majority. As mentioned, Justice Watson writes a concurring decision but essentially agrees with the Court’s general exasperation with yet another W(D) appeal – and a good one at that, as the Court allows the appeal on the basis of the W(D) error. Instead of sending the case back for a re-trial with a disappointing shake of their collective appellate heads, Justice Martin digs into the time vortex in an effort to rehabilitate, refresh and generally update the W(D) instruction. 

There are many reasons why Justice Martin feels the need to intercede. W(D)is a staple in the trial judges’ decision-making tool kit but it was a framework, a bare bones recommendation that required filling in. It was created with an eye to the factual matrix from which it came involving two competing narratives. It did not account for a more sophisticated evidentiary base arising from a complex factual and legal situation such as a case involving inculpatory and exculpatory evidence from the admission of an accused’s confession, or unsavory witnesses overlaying a Vetrovec caution (See Vetrovec,1982 CanLII 20 (SCC)) onto the instruction or trials involving multiple charges and included offences. In short, the W(D)instruction, when lifted directly from the pages of the decision, lacks context and therefore meaning. Many a trial judge, believing the words spoken by Justice Cory to be adequate, failed to realize the error of leaving the words alone to do the heavy lifting. 

Although Justice Martin fills in the framework to account for these variant situations at paragraphs 29 to 32 of Ryon, it is the common-sense admonishment underlying his decision that truly encapsulates the essence of W(D). At paragraph 38, for instance, he advises us to “step back and consider the message intended to be delivered.” Later, at paragraph 48, Justice Martin reiterates the need for the instruction to be “contextual and responsive to the evidence.” Finally, after recommending a more inclusive instruction, Justice Martin at paragraphs 53 and 54 cautions that 

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

These are sentiments that apply to every situation in which the accused’s exculpatory evidence is pitted against the prosecution’s case. In the end, it is the trier of fact alone, equipped with the special criminal standard, who must use and apply their common sense, as nurtured by lived experience, to the set of facts before them. However, in the case where there is potential for a credibility contest, the concept of reasonable doubt as it applies to that evidence must be brought home to the trier of fact. As Justice Sopinka said in R v Morin1988 CanLII 8 (SCC) at 360, rendered before his dissent in W(D), “The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed, the jurors need not agree on any single fact except the ultimate conclusion.” This freedom to fact-find is essential to our criminal justice system and through the judicious use of judicial instructions on how to get to that ultimate conclusion, we are ensuring that the verdict arrived at will be a fair and just one.

Although Justice Martin is right to bemoan the overuse of W(D)as a panacea for credibility assessments, he does seem to get too far into the weeds by over-instructing the trier of fact with all the potentialities of a W(D)situation. His comments on the sequence of the instruction, including which evidence must be considered first, may create a less flexible framework and run contrary to Justice Sopinka’s fact-finding vision as articulated in Morin. Granted, providing clarity on the type of evidence to be considered, exculpatory rather than inculpatory, is helpful, but to get into parsing evidence into types may cause more problems than it’s worth. For instance, the concern raised with applying W(D) to neutral evidence may result in arguments by counsel over what is neutral evidence and what is not. At some point we must trust the jury to come to a true verdict by allowing them to draw inferences from the evidence on the basis of their findings of fact.

Nevertheless, Justice Martin’s penultimate statement on what information should be imparted to the jury at paragraph 51 is helpful and does fill in the skeleton-like structure of the W(D) instruction. Of course, Justice Martin had ample opportunity to consider this as he expounded similar suggestions in his 2012 decision, R v Gray2012 ABCA 51 (CanLII). As an aside, that decision received quite a bit of traction with the Honourable Judge Gorman of the Newfoundland and Labrador Provincial Court who quoted the Gray decision in 13 cases between 2012 and 2014. I too will quote from Justice Martin in Gray at paragraph 45 in which he explains that “In other words, the instruction is a contextual, evidence‑sensitive, one that requires a trial judge to carefully mould it to the evidence and not just recite it in isolation with the hope that the jury will understand or figure it out.” Truer words have never been spoken—or, rather, they have been spoken but not listened to—but perhaps this time these words will have the impact they deserve.

I conclude this post with some final thoughts on conflicting narratives and criminal trials. The situation of competing narratives is not in and of itself unusual. A trial is a time anomaly. The trial itself is conducted in the present four corners of the courtroom, yet it is concerned with past events that lie outside of those courtroom walls. In many ways a trial borders on science fiction as it leaps through the time-space continuum. 

The trier of fact, who is in the present space, must turn the present tense into the past through the consideration of days gone by. In short, a trial is stuck in the past and the trier of fact needs tools to translate the past events into a language of the present. This is particularly important as at the time those past events were occurring, not everyone involved could see the future significance of those events. The narrative was not captured in pristine form at the time. A further “past meets present without future thought” problem is that often those events did not involve direct observers. The people living those events did not rush out and bring in a witness for future use. Indeed, these events are by their very nature done in private. Nor did these events necessarily produce animate items for future use at trial. 

The W(D) trial is a description of the past from the perspective of the complainant and the accused person. The trier must assess that information through a kaleidoscope of time, which collapses those past events into present time. But that is not all—those events are also filtered through legal rules and principles. This changes the texture of those narratives and gives them a different, special meaning. It is the application of those legal principles that frames the past so it may be used in the present time of a trial. This is the true message of W(D), which serves as a memorial itself by commending to a trier of fact a possible, but not the only, way to review evidence in coming to the ultimate decision of guilt or innocence. 

 Does W(D) need a reconsideration? There is not much wrong but much right about re-energizing legal principles and ensuring they are understandable, meaningful and relevant for those who must apply them. An update and a re-working can enhance the administration of justice. However, in that new look, we must retain the essence of that original statement and its raison d’etre. In the case of W(D), any reformulation must emphasize the linkages that must be made between credibility assessment and reasonable doubt. Without this crucial connection, a reconsideration is not doing W(D) justice. Justice must not only be seen to be done, it must also be done. The Ryon decision, in its aspect and essence, will go a long way of doing just that.

 

 

 

The Dual Nature of Advocacy

This Monday is the start of the University of Calgary Faculty of Law 3L Advocacy Course. It is an intensive three-week program in which students, who are soon to be articling students, find themselves in the heady atmosphere of practice. It is a simulation, to be sure, but one which builds confidence, knowledge, skill and the love for the practice of law. This is my fourth year as course director and I still look forward to the electrified atmosphere the course engenders. The atmosphere is also collegial as so many lawyers, judges, and justice system participants gather together for one reason: to help create skilful advocates. This course is a prime example of another facet of lawyering, which is volunteerism. Each one of this 100+ participants are graciously giving their time and talent to our students and faculty. To give back to the community as the Calgary bench and bar does for this program is truly inspiring.

This program, as a concept, as experiential learning, and as community-builder, makes me realize that “advocacy” is a shape-shifter. It is not just about standing up in court and doing a killer examination or a staggering legal argument, it’s about the communal coming-together as a profession for the purpose of the betterment of that profession. This program, whether we are a 3L who has never seen the inside of a courtroom or a seasoned practitioner who has seen too much the underside of the law, brings us together so we can all strive for excellence in our own way but together.

I want to emphasize that advocacy is also about finding your authentic voice. To be sure, there are best practices but not one best practice. What I love best about the Advocacy course is how we are all encouraged to find how we each can contribute to the practice of law by being ourselves. The program is a safe environment in which students can start to do this. It is only a start as it can take years to find the individual approach that best works. But that’s okay – that’s advocacy.

I cannot leave this blog without connecting my thoughts to some personal reading I have done over the break. Philippe Sands, QC is a British barrister well known in international law circles. He has written textbooks in the area and practiced in the International Criminal Court for years. He also writes and podcasts in a more personal way. He has applied his prodigious legal skills to tracing his Jewish family history in Nazi-occupied Lemberg, which had a battered history of name changes as it buffeted from one occupying country to another. 

Sands brilliantly weaves that personal story of discovery with the equally compelling story of two men, both Jews who lived in Lemberg, who escaped the German occupation, and who individually contributed to modern international human rights: Hersch Lauterpacht and Raphael Lemkin. Lauterpacht was a gifted law professor who championed the concept of individual rights as protected by the global community. His involvement in the Nuremberg trials resulted in the convictions of those individuals who were responsible for the murder of millions including the families of Lauterpacht, Lemkin and Sands. Hersch Lauterpacht was the originator of the then nascent offence of “crimes against humanity.” Raphael Lemkin came at Nuremberg differently. His emphasis was not on the individual but on the groups and cultures which the Nazi war machine sought to obliterate. He invented the word “genocide” to reflect his belief that the destruction of an identifiable group of people cannot be countenanced. Sands book includes a map of Zhovkva, a tiny village close to Lviv, where his great-grandmother and Lauterpacht were born. The map shows the street where both families resided and which hauntedly connects to the burial place of the Jews of the village who were all massacred during the Nazi occupation. Hence the name of the book as East West Street.

Now the connection to my thoughts on advocacy. It struck me how the story in East West Street was simultaneously a story of the pursuit of individual and collective justice, just as the stories of Lauterpacht and Lemkin, super-imposed on one another, was one story arising from mirror images of what injustice looks like. Sands is, as his training and family history made him, an advocate of the highest degree who is concerned with the individual and the whole. So too, being a skilful advocate requires those two halves, the private and public, to reveal itself into one vision. We are obliged to pursue justice through individual means but for the greater good. Even when we represent an individual, it is not just the client’s plight it is our plight too. Being an advocate requires expertise in managing these two dualities.

Circling back to the start of these musings on advocacy, I can see the bigger picture this course suggests. What we each do in the legal profession does impact individual lives but what we do together significantly outsizes that impact. We protect individual rights but we also engage in community-building. Advocacy, as an integral part of who we are as a profession, reflects both of these objectives and celebrates them. To me that is the truly wonderful outcome of the course and what I look forward to experiencing on Monday.

 

You Missed A Spot! Amendments to the Reverse Onus Sections in the Criminal Code

Tis the Season as they say when I do some Criminal Code housekeeping. This year it is more of a reno then a Spring cleaning as late 2018 brought in major revisions to the Criminal Code. Although I am not sorry to see the repealed sections go, I do feel wistfully nostalgic for them. Alarming the Queen for example (now repealed s. 49) and dueling (now repealed s. 71) were guaranteed to bring a smile to the 1Ls. But with all renos, there are bound to be oversights. The wall looks freshly painted but deep in the corner there’s a patch left undone. The Criminal Code revisions are no different.

Take for example the removal of the reverse onus phrases “proof of which lies” on the accused. The Backgrounder on Bill C-51, which brought in this change explains the reasoning behind the removal. This phrase, which reverses the burden of proof onto the accused, is constitutionally suspect. By reversing the burden, s.7 is engaged as the presumption of innocence, a principle of fundamental justice, is compromised. In the words of the Backgrounder such reversals of the onus onto the accused could “result in convictions where a reasonable doubt exists as to the accused’s guilt.” The removal of these reverse onus requirements is not only Charter consistent but necessary. Yet, a review of the Code reveals some such reversals are left intact.

Let’s look at which reverse onus phrases were removed. Including the Forms, there are 47 references to the onus, “proof of which lies” on the accused, deleted. The most notable large-scale removal was from s. 794, deleting subsection (2) placing the burden on the accused in summary conviction offences to prove an “exception, exemption, proviso, excuse or qualification prescribed by law operates” in favour of the accused. Many of the removals were in sections where the case law raises potential Charter unconstitutionality such as in the reverse onus in possession of housebreaking tools under s. 351.

What is not removed is more telling. Three of the sections retaining the reverse onus phrase appear in Part XXIII of the Codeon Sentencing. The phrase in sections 742.6(9) and 742.6(16) are still operative. These sections are engaged when an offender allegedly breaches a conditional sentence order (cso). Both subsections outline options given to the court upon finding, on a balance of probabilities, that the offender did “without reasonable excuse, the proof of which lies on the offender” breach a condition of the cso. These subsections were subject to a Charter challenge in the Ontario Court of Appeal decision in R v Casey with leave to the SCC refused. The Ontario Court of Appeal found the breach is not an offence within the meaning of s. 11 of the Charter. Any argument the subsections violated ss. 11(d) (reversal of burden of proof), s. 11(h) (rule against double jeopardy) and s. 7 (principles of fundamental justice) were dismissed. The decision hinged on the characterization of the cso regime and the consequences of a breach. In the OCA’s opinion a breach of a conditional sentence was not a separate offence as the sentencing judge, who reviews the breach, can only deal with the expired portion of the sentence. A sentence, which the Court was quick to remind, is a term of imprisonment being served in the community. Finding a breach cannot increase that sentence. Additionally, the sentencing judge is reviewing the alleged breach as the supervisor of the cso and not as a trial judge quatrial judge. 

 Even so, courts have added a caveat to this supervisory power under s. 742.6. In the 2005 decision of the then Justice Cromwell, in the New Brunswick Court of Appeal, R v LeBorgne, found the breach regime “engaged important interests of the offender” and “vital interests of the offender are in play and must be scrupulously protected” (at para 13) and “scrupulously fair” (at para 14). 

Another section, s. 734.5, which is similar to s. 55.1 Cannabis Act, also retains the reverse onus provision. Section 734.5 is also a sentencing provision relating to the default payment of a fine. This section provides for an additional “incentive” for the offender to pay a fine by permitting the provincial government to refuse to issue a licence or permit, such as a driver’s licence, to the offender until the fine is paid “proof of which lies on the offender.” Again, this is enforcement of a sentence imposed and is not to be viewed as additional punishment. This section was considered in the most recent Supreme Court decision on the unconstitutionality of the victim fine surcharge, R v Boudreault. That section had used the s. 734.5 enforcement regime for the fine surcharges. 

Leaving aside the special circumstances of the use of the reverse onus in these sentencing provisions, there are still two offences in the Criminal Code, sections 440and 383(2), where the reverse onus is retained. These sections create offences similar to the other sections from which the reverse onus phrase was removed. These two offences also happen to be the only offences in the Codedescribing the reverse onus as “the burden of proof” as opposed to the other now deleted phrases that introduce the reversal by stating “proof of which.” Was there perhaps a slip of the pen by not removing these sections too or is there some other reason for their retention?

Section 440 is an odd offence creating an indictable offence for removing, wilfully and without the permission of the Minister of Transport, a natural bar such as a stone or earth from a public harbour. The reverse onus attaches to the proof of the written permission from the Minister. It may be argued that this permission is specifically an element of the offence and therefore should be disproved by the prosecution. Yet, the section contemplates otherwise by using the reverse onus. Some case law suggests the lawful excuse, consisting in s. 440 of the Minister’s permission, is not an element of the offence (see R v Gladue2014 ABPC 45, Rosborough, PCJ). It appears this authority has been questioned on summary conviction appeal (see R v Neufeld, 2014 ABPC 66, Rosborough, PCJ at paras 28-30). Considering the uncertainty in the law on this issue, this phrase “the burden of proof of which lies on the accused,” should have been removed from s. 440.

Notably, s. 440 does have a public welfare flavour to it. In the regulatory world, the defendant has the burden on a balance of probabilities to establish they acted with all due diligence. In this case, that the defendant had the necessary permits to make changes to a public harbour. But this offence is not of the regulatory world but the criminal one. It appears in the Criminal Code and it is punishable by Indictment for a maximum period of imprisonment of 2 years in the penitentiary. In any event, the regulatory argument that the accused is in the best position to produce this information fails in this instance as it is Minister permission, which one would assume is readily available to the government prosecuting such an offence.    

The other offence retaining the reverse onus phrase, section 383, creates fraud-related offences in purchasing stocks or merchandise for the purpose of making a profit in the rise or fall of the price of those items. This activity does rather sound like what people regularly do when playing the stock market. It even sounds like what people also regularly do, when purchasing real estate, not for the purpose of inhabiting the property but for the purpose of flipping it in order to make money in the short term rise in price. What this section is directed to is a form of wash trading wherein an “investor simultaneously sells and purchases the same financial instruments to create misleading, artificial activity in the marketplace.” Of course, such conduct benefits the wash trader but to the detriment of legitimate people in the marketplace. Section 383(1) defines the offence of the making, signing or authorization for the sale of shares or goods with the intention of making a gain or profit by the rise or fall of the price. Subsection (2) where the onus resides finds that when it is established that the accused made, signed or authorized the sale or purchase of those goods, the onus is then on the accused to prove a bona fideintention to acquire or sell the shares or goods in question. Although this subsection appears to create an evidential burden and not a legal one, considering this section is merely a specific form of fraud under s. 380, the use of a reverse onus seems out of place and heavy-handed. Further, there is another specific offence relating to wash trading under the Code in s. 382, which is creating a false appearance of active trading of stocks does not use any such presumption. Additionally, a search of case authorities suggest that these situations are usually dealt with under securities regulation instead of the criminal law. 

The reason the onus remains may be historical. In Burbidge’s Digest of the Criminal Law of Canada, the progenitor of the 1892 Code and upon which the Code was formulated, outlined a similar offence under Article 236. There the offence did not have a reverse onus phrase. However, in the 1892 codification of the offence, section 704, which is similar to 383(2) was added as an evidentiary presumption. Although evidentiary presumptions to ease the admission of documents and certificates signed by an official are present in the Codewe now use, there is no other such section that presumes an essential element of an offence upon proof of the accused’s acquiescence. For instance, the reverse onus in s. 197(3) of proving a place is not a common gaming house but is an “incorporated genuine social club” is intact. Or the requirement placed on the accused under s. 117.11 for the accused to prove someone else is the holder of a firearm or weapons authorization or licence for weapon offences listed. These burdens, as opposed to the onus under s. 383(2), do not require the accused to testify or provide evidence emanating from themselves. The s. 383(2) presumption would require a response from the accused to establish “good” intentions without which the accused could be found guilty of an indictable offence and liable to imprisonment for 5 years. Surely, this subsection (2) should have caught the notice of the government in amending the Code and should have been removed with the other reverse onus phrases. Even if the government wanted to retain an evidential burden, replacing the offending phrase with the less constitutionally challenged phrase of “in absence of evidence to the contrary,” would have been more consistent with the law. 

Renovations are needed when a place is well-used, run down and no longer relevant but the new fabrication should not be a mere façade or a simple paint job that will brighten up the space but not make any substantive changes. The government has made good on its promise to delete some of the old sections in light of the ones more useful and meaningful, but they needed to step back from the finished product to ensure, after the paint dried, the entire building would still hold up. When it comes to the reverse onus sections, the government still needs to re-do that re-do to ensure all constitutionally suspect phrases become a memory of the past. 

 

ENTER OR NOT HERE I COME? THE TENTATIVE (AND NOT SO TENTATIVE) VIEWS IN THE REEVES DECISION

Finally, a SCC decision where the concurring judgments discuss at length what they say they won’t discuss at length. It’s refreshing to read a decision that is so SCOTUS in approach – an Opinion – and two concurring Opinions at that. In R v Reeves2018 SCC 56, the newest decision from the Supreme Court building on the vast case law in the area of s. 8 of the Charter, the two concurring decisions by Justice Moldaver and Justice Côté take up an issue “benched” by the Justice Karakatsanis’s majority decision. In deciding Steeves has a reasonable expectation of privacy in a shared computer, the majority deems it unnecessary to decide the ancillary issue of whether the police entry into the home shared by the Reeves and his partner was legally justified in the first place.

This situation particularly resonates for me as a professor teaching 1Ls fundamental criminal law concepts. The cases I teach are rife with “we will get to that another day” sentiment. In JA[2011] 2 SCR 440, for example, both the majority of the then Chief Justice McLachlin and the dissent of Justice Fish leave open the Jobidon issue of consensual sexual activity that involves bodily harm. Again, in Mabior[2012] 2 SCR 584, Chief Justice McLachlin, after referencing sexually transmitted diseases other than HIV throughout the judgment, disappointedly states that “Where the line should be drawn with respect to diseases other than HIV is not before us” (at para 92).  

The majority in Reevestries to employ a similar yet different tactic to deflect a decision on the issue. Instead of the tantalizing suggestion that there will be some case on the horizon which will engage the issue squarely on, Justice Karakatsanis suggests the issue may be present but assessing it is unnecessary because there was a s. 8 violation in taking the computer and, in any event, Reeves’s counsel conceded the entry was lawful (paras 20 to 21). Furthermore, and here is the brush off, the issue raises “competing considerations” and to proceed without “full submissions” would be imprudent (at para 23). As an aside, Justices Côté and Brown, in their dissent in Trinity Western University,2018 SCC 32, took this same tack on the sticky issue of the standard of review as they declined to comment on the Doré/Loyola framework“in the absence of full submissions” (at para 266).

Despite this firm “no,” Justice Karakatsanis continues to explore the complexities inherent in such a decision (paras 24 and 25). That it invokes the intersection of the public and private spheres of our lives. That it highlights the nuances apparent in how we live those lives, raising questions of where and when our privacy becomes shared and if privacy amounts to mere physical space. I have explored the multi-verse of privacy and space in a previous blog posted on my Ideablawg website entitled, “Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and Private Living Space.” Overlaid is the societal desire to maintain public safety through the investigation of crime.The issue is, as suggested by Justice Karakatsanis, “complex” and requires a “considered response.” 

Yet, the presence of “competing considerations” is exactly why the concurring justices decide to give a response, considered or otherwise. For Justice Moldaver, a tentative response is better than none. In his view, direction from the Court is needed, albeit not binding direction. Justice Moldaver often gives advice to lawyers and trial judges when the issue requires it. For instance, in R v Rodgerson,[2015] 2 SCR 760, Justice Moldaver, offers some street-smart advice on how to run a murder case before a jury. In Reeves, Justice Moldaver does something different – he anticipates the issue as an issue and, in a forthright, make no bones about it manner, he states his “purpose in writing this concurrence is to express some tentative views on the issue of police entry into a shared residence” (at para 71). But that’s not all, the reason for writing something that is not a ruling, that is not a decision, that is not really even true obiter dicta as it is “tentative,” meaning he has not really made up his mind, is to fill a gap that is “a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.” This statement alone packs a wallop as Justice Moldaver anticipates an immediacy that cannot wait until another day. The matter is so pressing that it cannot wait for full submissions and cannot wait until he has fully formulated his opinion. This is, in other words, a matter of critical importance. It must be said.

Interestingly, “tentative views” have been offered in the Supreme Court previously. In eight SCC decisions such “tentative views” have been expressed. In the oldest such decision, St. John and Quebec R Co v Bank of British North America and the Hibbard Co1921 CanLII 574, Justice Anglin is not expressing a tentative view as much as he is making it clear that the tentative view he had of the case was not dispelled through oral argument (p 654). The other seven SCC decisions do express tentative views on matters on the basis those issues were “not raised before us” as with Justice Cartwright dissenting in Smith v The Queen[1960] SCR 776) and Justice La Forest in Tolofson v. Jensen; Lucas (Litigation Guardian of) v Gagnon[1994] 3 SCR 1022.

An instance where “tentative views” matter, as they presage the binding ruling and have precedential impact, is in R v Bernard, [1988] 2 SCR 833. In that case, Justice Wilson’s concurring decision (at para 93 to 95), on the constitutionality of the Leary Rule limiting the effect of intoxication on mens rea, ultimately became the majority ruling of Justice Cory in R v Daviault, [1994] 3 SCR 63 (see also R v Penno,  [1990] 2 SCR 865 and R v Robinson[1996] 1 SCR 683). Not only did Justice Wilson’s opinion become law but it caused Parliament to hastily respond by adding s. 33.1 of the Code.

The “tentative views” presented in Reevesby Justice Moldaver are well-thought out and do not seem tentative at all. His analysis of the basis for the police officers’ entry into the shared home with the consent of Reeves partner is based in principle and on an application of years of case authority building upon police officer’s common law ancillary duties. In his 27-paragraph discussion on the issue, he deftly “tentatively described” (at para 96) the police common law duty to enter a residence to take a witness statement for purposes of an investigation. He sketches out five criteria to ensure the authority is carefully circumscribed through a practical and common-sense approach to the potential intrusive situation (at para 96). Despite his belief that his comments require fuller attention in the future, he continues the opinion with his further belief that his scenario for common law entry by the police, without reasonable grounds to believe an offence has been or that evidence will be found of an offence, is nevertheless constitutional (at para 97). He draws upon case authority which permits intrusive police action, in certain contained circumstances, based on reasonable suspicion. He concludes in paragraph 99, that as his criteria for entry is specifically constrained that it “may well meet s. 8’s reasonableness requirement.” Again, the discussion is not that it “will” meet or that it “does” meet but that it “may well” meet. The virtue testing is left for another day.

But the issue is not really left on the corner of the bench. In paragraphs 100 to 102, Justice Moldaver then applies his “tentative articulation of the lawful authority under which the police could enter a shared residence” to the facts of the case. He assumes his formulation is constitutional and finds it “quite possible” that up to the time of actual seizure of the computer, Reeves’s s. 8 rights remain intact. To add to this speculative brain-worthy exercise, Justice Moldaver decries the paucity of the record as it does not contain sufficient facts to properly determine the outcome of all of the five criteria formulated as part of the test.

In stark contrast is the decisive concurring decision of Justice Côté. There is nothing tentative about this presentation of the issue. She calls out the majority for declining to consider the issue considering “it was ably argued by the parties” and impacts the s. 24(2) analysis (para 105). Justice Côté takes the issue head on and makes quick work of years of carefully crafted s. 8 principles. She boldly finds that police can and should be entitled to enter a shared residence, without a warrant, based on the consent of one party alone. She does so in 13 paragraphs without the need to formulate or constrain police authority. She does so by focusing the s. 8 lens not on the accused but on the valid, subsisting and present consent of the co-habitant. In Edwards-like fashion she keeps the spotlight on the presence of the consent thereby dissolving the s.8 issue on the basis of an absence of a search or seizure. The entry is simply an everyday matter of invitation and is not the heightened arena of the state intruding into the privacy of a citizen’s life. With a flick of the switch, s. 8 disappears in favour of the down to earth realities of hearth and home. 

By deciding not to decide, the majority set the stage for a showdown but not the quick draw we are used to in reading a Supreme Court decision. Instead, we have in R v Reeves, a slow-motion decision that requires us to patiently await the right case to appear to give an authoritative voice to the tentative one. Let’s hope we don’t need to wait too long.

 

 

 

The Vice Squad: A Case Commentary on R v Vice Media Canada Inc

Criminal law, as observed in high-level Supreme Court of Canada decisions, is the legal version of urban life. Principles jostle and elbow through a crowd of issues and facts. This hum of urbanity gives this area of law an edgy unpredictable feeling. Conflict abounds and at times there is a winner take all attitude. Other times, the result in a criminal case is more nuanced as urban sprawl is contained and the chaos is smoothed over through the application of principled and balanced ideals. The decision in R v Vice Media Canada Inc2018 SCC 53, is one such case. 

The premise is not very original. For years, journalists have gathered sensitive and volatile information from hidden human sources. This is the stuff of smart investigative reporting and it offers insightful but sometimes explosive reveals. Such was the case in Vice. Let’s be clear, Vice Media is a go-getter media outlet: a newish kid on the block, who with equal doses of style and aplomb combined with grit and tenacity, present stories with the urban flair expected of a here and now media team. In this case, the journalist connected to a prize – a source who was the real McCoy – a suspected terrorist. They exchanged, as all sharp social media-ites do, a series of text messages. But these were text messages with a difference. The journalist, by communicating with a suspected criminal, entered the “it’s complicated” world of criminal law. More than merely conversational, these messages were potential evidence and as evidence attracted legal meaning and weight. It was as if a school-yard scuffle was transformed into a Las Vegas prize fight. The journalist investigation was instantly transformed into a police investigation. With that transformation, the rules of the game changed. What was driven by the written word became transported through the portals of law.

The police moved quickly to secure and preserve the information, “under glass” so to speak, through the legal tools available. A production order under s. 487.014 was obtained quickly, silently and ex parte. Production orders are the aide du camp to the search warrant regime in the Code. When issued, they require the person so named in the order to hand over to the police the subject document that is in their possession or control. It is all about evidence, trial evidence, and what kind of information is needed to prove a criminal offence in court. With a stroke of a pen, the legal world encases the whirly-burly world of media in a glass case. Dynamic communication is crystallized, dryly, into documentary fact. However, this colourless coup still has some drama left to it. In this encasement, the formalistic legal rules must grapple with the equally formalistic journalistic rules. Here Vice meets Squad and legal principles run up against another as journalistic source privilege creates an impasse. It is up to the Supreme Court to reconsider the legal and journalistic landscape.

In the end, the Supreme Court agrees with the lower courts by upholding the presence of the law as the paramount concern in this media story. The production is properly issued and must be obeyed. But this story does not go out with a whimper but a bang as the Court, though in agreement in the result, does not agree in how they get there. This is truly the excitement and energy of the urban landscape as two opinions on the issue emerge. The majority, hanging onto the creation of law by the slim agreement of 5, is written by Justice Moldaver, the criminal law heavy-weight on the Court. Justice Moldaver is an experienced criminal lawyer and approaches the decision with his usual hardboiled common sense. The concurring minority decision is written by Justice Abella with her innate sense of the human condition. The setting could not be better for a decision on the realities of the urban scene.

Justice Moldaver opens with the obvious in paragraph 1 of the decision. There is an analytical framework, found in the 1991 Lessard decision, to decide the issue. As an aside, the framework, pulling no punches here, involves the balancing of “two competing concepts: the state’s interest in the investigation and prosecution of crime, and the media’s right to privacy in gathering and disseminating the news.” The issue here however does surprise. It is not a “business as usual” question, involving the application of that long-standing framework, but involves a deeper question asking whether the framework is actually workable. The law can create but, so the argument goes, the law must be useable. Principles may be lofty and imbued with high-minded values, but they must work on the street-level as well. What is said in Ottawa must be later applied in small-town Dundas, Ontario or main street Nelson, BC. If it can’t work there, it’s of no use, legally or otherwise.

Does that balance work? The majority believes it does with some refinement. Tweaking has become the new tweeting at the Supreme Court level. If it ain’t completely broke then don’t entirely fix it. Renos are a less costly measure. Justice Moldaver suggests just such a quick fix by importing a case-by-case analysis that permits a less mechanical application of rules and by “reorganizing” the applicable Lessard factors. But then, and here is where a tweak looks more like a re-do, the majority offers a modified standard of review (SOR). This, in the words of Raymond Chandler’sPhillip Marlowe in The Big Sleep, is like finding a “nice neighborhood to have bad habits in.” The spectre of SOR runs deep in the Supreme Court decision-making psyche. Rearing its head here of all places gives this decision a decidedly bête noire flavour.

We need a feel for the atmosphere before we take on this part of the decision. We are in the heightened atmosphere of “the special status accorded to the media” (para 14) as envisioned under the aegis of the Charterpursuant to s. 2(b). Freedom of expression in the form of media expression is, as I quote the dissent of Justice McLachlin in Lessard, more than the vitalness of the “pursuit of truth.” It is an expression and act of community. The press is society’s agent, not the government’s agent. Their actions give meaning to “expression” but also to “freedom.” As such, the press is “vital to the functioning of our democracy.” But, spoiler alert, the gravitas of this sentiment differs as between the majority and the dissent in Vice. It is this difference, which I suggest drives the decisions in this case more than anything else. In any event, Lessard, impresses s. 2(b) with the stamp of vitality promised by s. 2(b). It involves a boisterous labour action at a post office, the bread and butter of on the ground media reporting. The crowd was video-taped and the police wanted the recording as evidence for a criminal prosecution. Incidentally, my most recent Ideablawg podcast on the Criminal Codediscusses the sections on unlawful assembly and riots. In contrast, the facts in Vice, touch upon democracy’s innermost fear of terrorist activity. 

I should add that an additional difference in Viceis the presence of a confidential informant, who also happens to be the potential suspect. The law of privilege is an evidential oddity as it serves to exclude evidence which would otherwise be relevant and admissible in a criminal case. Through the protections afforded by privilege, the identity of a CI is confidential. This in turn promotes relationships in which vital information is exchanged. A CI is more apt to divulge information to a journalist with the knowledge there will be no adverse repercussions as a result. The kind of adverse repercussions as in Vice, where the information is used against the CI in a criminal investigation. This kind of privileged communication within a journalist relationship is not absolute and is subject to judicial discretion. Even so, the CI/journalist relationship adds a sharpness to the issue. For a fuller discussion on the vagaries of CI privilege, read my blog posting on the issue here.

In this media infused atmosphere, context is everything. That should be no surprise to anyone who has read a Supreme Court case in the last decade. In fact, we might say that context is not just everything, it is royalty, as principles seem to bend to it. Case in point is the majority’s view of the Lessardfactor of prior partial publication. Under the unrefined Lessard framework, if the information of the criminal activity sought by the state has been disclosed publicly then seizure of that information is warranted. Indeed, those circumstances may heighten the importance of that factor, which “will favour” the issuance of the order or search warrant. Justice Moldaver finds the Lessard approach turns a factor into a “decisive” one (para 39). Although it is arguable whether Justice Cory in Lessard would agree with that characterization of his comments, Moldaver J’s approach, to allow for context in assessing prior publication by favouring a case-by-case analysis, is defensible. Again, smoothing out the complexities through a good dose of common-sense driven principles.

Another area for revision involves whether the probative value of the information should be considered in the balancing and assessment of the Lessard factorsProbative value is connected to that basic rule of evidence I earlier referenced; that all relevant and material evidence is admissible. Facts, which make another fact more or less likely, are admitted into evidence as such facts have value or weight. The basic rule is subject to other rules that may render evidence inadmissible, such as bad character evidence. It is also subject to the discretionary exclusion or gatekeeper function of the trial judge to exclude relevant and material evidence where the prejudicial effect of admitting the evidence outweighs its probative value. Probative value is a measurement of the strength or cogency of that evidence. Probative value is not an absolute concept but involves relationships or connections between evidence. In fact, the probative value or weight given to evidence must be viewed in the context (there’s that word again) of the whole case. This explains Justice Moldaver’s position, at paragraph 56, that the probative value of the protected evidence is a consideration in whether the evidence should be accessed by the State. It is “a” consideration, not a stand-alone Lessard factor, as the production order proves is part only of the investigatory stage. It would be premature to place too much weight on probative value before the entire case is yet to unfold. 

This leads logically to Justice Moldaver’s further caution that probative value should not be dictated by hard evidential rules. Again, contextually and functionally this would be contrary to common sense. A production order or a search warrant is at the infancy of a case. These are investigatory tools albeit tools which may lead to trial. The information to be accessed are facts not evidence. They have not been filtered through the legal rules engaged at trial. They are anticipatory. Therefore, Justice Moldaver declines to import the Wigmore criteria of necessity to the assessment (paras 52 to 58). However, by permitting probative value as an overarching factor, the Court is scaffolding evidential concepts onto the investigatory assessment. Probative value is considered in issuing an investigatory tool, probative value is weighed against prejudicial effect in determining admissibility of evidence at trial, and, finally, probative value is weighed in light of the whole of the evidence to determine whether the State has proven the accused person’s guilt beyond a reasonable doubt. As the standard of proof increases, how much that probative value matters also will increase.

So far, the tweaking seems more of an oil change and lube: something to make the engine work better. But now comes the overhaul as Justice Moldaver announces a change in the standard of review (paras 68 to 81). For the Supreme Court, the standard of review is to the reviewing court like provenance is to art museums. No one can really rely on the reviewing court’s decision unless there is agreement on the standard by which that original decision is assessed. The standard of reviewing the issuance of an investigatory order was determined almost 30 years ago in Garofoli. There, Justice Sopinka clarified the review was not a de novo assessment in which the reviewing court simply substituted their opinion. Rather, it is an assessment as seen through the eyes of the issuing judge, looking at the information before the judge at the time but with the benefit of any acceptable amplification on review. This test has parallels with the air of reality test, a threshold test used to determine whether a defence is “in play” and can be considered by the trier of fact. The air of reality test requires a consideration of whether a jury properly instructed and acting reasonably could acquit on the evidence. With a review of an issuing judge’s decision, the review court asks whether “there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (para 69). 

This test is a deferential one, albeit not completely so. Although, the issuing judge is best placed to decide, there is wriggle room for the reviewing court through amplification on review. Additionally, the view through the eyes of the issuing judge is, here it is again, contextualized by the evidence before the reviewing judge. For instance, the reviewing judge can consider an application to cross-examine the affiant of the Information To Obtain as part of its review. If permitted, the evidence may provide further context to the original basis for the authorization. The difficulty with this approach, Justice Moldaver notes, is where the authorizing judge issues processex parte with only the State providing the grounds for such authorization. Warrants and investigatory orders are typically issued in an ex parte manner. The real difference in the Vice scenario is the inability for the media outlet to argue, at the time of authorization, against issuance on the basis of s. 2(b) of the Charter. They can argue this upon review, but then the standard of review is no longer de novobut on the basis of Garofoli

Deference is the true standard here. By permitting a more contextual permissive approach, Moldaver opens the door to a moveable feast of standards for review that is appears tailor-made to the situation or facts (para 74 to 81). Moving away from deference may be fairer but it also creates a non-linear hierarchy within the issuance of such orders. It also replaces deference with the other “d” word – discretion. But with that discretion comes responsibility. I have written previously of the enhancement by the Supreme Court of the Gatekeepers function in the last decade. To me, this modified Garofoli is a further indication that the trial judge carries the integrity of the criminal justice system on their shoulders. So much so, that just as Newton has “seen further ... by standing on the shoulders of giants,” trial judges raise the public confidence in the criminal justice system to the highest level. They are foundational to our justice system. 

All of this tweaking may be meaningless considering the revisions to the Codeitself now providing for the special case scenario of journalistic sources and specifically those sources arising in a national security context. Yet, the Vice decision goes beyond parliamentary intent. Indeed, the minority decision of Justice Abella does just that. Her legal world view is not suggestive of the hard-boiled common-sense of the majority decision. Instead, Justice Abella calls out the majority by emphasizing the invisible undercurrent of the majority decision which resides in the Charterand the sanctity of the freedom of the press. If the majority can be stylized as a Raymond Chandler novel, then the minority is Clark Kent in the newsroom. Tweaking won’t do here but action. The level of action is not shoulder height but up in the blue sky. The minority decision reminds us of what is at risk when we diminish the freedom of the press to the margins. It also reflects the current conflicts we see in the world today. 

For Justice Abella, the time is “ripe” (para 109) for a new world view that provides for a distinct and robust freedom of the press in s. 2(b) of the Charter. Logically flowing from such recognition is the need to change the Lessardframework to fulfill this new world vision. Not only is this change required due to the enhanced delineation of media s. 2 (b) rights but is also required by the potential violation of the media’s s.8 privacy rights. Privacy rights, through previous Supreme Court decisions in Marakah and in Jones, have also been enhanced and emboldened by the social landscape. They too matter in the application of Lessard. The issuing judge still balances under this enhanced (not just tweaked) test but does so in the clear language of the gatekeeper (para 145). For Justice Abella, the vividness of Charter rights must be viewed with eyes wide open as the judge may issue the order only when “satisfied that the state’s beneficial interest outweighs the harmful impact on the press should a production order be made” (para 145). Notably, Justice Abella agrees with Justice Moldaver on the issue of prior publication, probative value of the evidence (para 149) and on standard of review (157 to 160). Essentials remain the same, but it is the context which changes. 

Context appears to rule in the rule of law. Context is important as rules should not be created in a vacuum. In the end, law cannot be wholly theoretical, or it fails to provide guidance. However, contextual analyses beget different world views and serve to underline the differences as opposed to the similarities. True, the Vicedecision is unanimous in the result but worlds apart in the manner in which the decision-makers arrived there. Maybe this is another new reality we must accept as we jangle and jostle our way through the everchanging urban legal landscape. Maybe we need to embrace context and loosen our grip on the hard edges of legal principles. Or maybe we won’t. And that is the beauty of context – it truly is in the eye of the beholder.

 

 

 

Episode 56 of the Ideablawg Podcast on the Criminal Code of Canada – Sections 63 to 69 – Dealing With Our Tumultuous Past

In this episode, we are discussing sections 63 to 69 of the Criminal Code found under “Unlawful Assemblies and Riots.” These sections, outlining a regime for crowd control, read and sound like a slice of our historical past. Yet, in a world where we regularly use public space to collectively express our opinions, these sections challenge this concept. Although we recognize the need for a safe public space in which to express our opinion, we want that safeness to be seamless and embedded into the public environment. We have, in many ways, a love-hate relationship with public gatherings. The excitement and thrill of being part of a crowd or experiencing with our neighbours a precious moment cannot be underestimated. But the fear and loathing we have of images of looting, arson and violence is a real and natural fear of a crowd out of control. The question raised by this Ideablawg Podcast is where we should draw the line and criminalize crowd behaviour. This podcast will not answer that question. As I have said before, the Criminal Code underlines our societal values. It highlights those acts we find reprehensible and worthy of criminal sanction.  Whether these sections are reflective of who we are and what we deem criminal is a worthy question to ask albeit not one with a clear or easy answer. 

In the first step of understanding these sections, I will turn to a previous blog I wrote in 2012 entitled “Reading The Riot Act.”  In that blog, I posited that riots are embedded in our human psyche. In support of that position, I referenced a number of notable historic events where riots figured prominently for a variety of reasons. I also connect the sections presently in our Criminal Code with the now repealed UK Riot Act of 1715, which had the long title of An Act for Preventing Tumults and Riotous Assemblies, and for the more speedy and effectual Punishing the Rioters. The Act was originally a response to the increasingly common “rebellious” assemblies which threatened the “King’s Peace.” Be that as it may, our sections in the Code mimic the language and intent of this 300-year old law. This Act was ultimately repealed in 1973. 

Eventually, the UK replaced the Riot Act with another legislative instrument, the Public Order Act 1986. That Act abolished the common law offences, to which our offences are more akin, in favour of a modern version of assembly-based offences. These new offences are explicitly connected to the use or threat of “unlawful violence.” There are varying offences dependent on the size of the assembly. There is a “riot,” involving 12 or more people who share unlawful violence as a common purpose (s.1). Then a “violent disorder,” involving 3 or more people (s. 2) and an “affray,” which is directed to an individual (s. 3).  There are other offences, which could fill a podcast or blog, but I will refrain from that critical analysis in favour of our own legislation. 

In fact, our legislation also outlines varying degrees of behaviour but not to the extent of the newer UK version. Section 63 criminalizes an “unlawful assembly.” Such an assembly involves three or more persons “with intent to carry out any common purpose” who: “cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they (a) will disturb the peace tumultuously; or (b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.” Section 64 takes this one step further by creating the offence of riot in which the unlawful assembly “has begun todisturb the peace tumultuously.” 

The defining term for these offences is the word “tumultuously.” It is the lynchpin of the offence but is not defined in the Code and carries with it those historical connotations from the Riot Act. To understand the meaning of this word, case law is needed. In the Berntt case, involving the Vancouver Stanley Cup Riot in 1994, the defence argued the term “tumultuously” was overly broad and vague. The word failed to provide a clear understanding of the essential requirements of the crime. Without such clarity, the accused’s ability to make full answer and defence, as found in s.7 of the Charter, was compromised. 

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society in which Justice Gonthier emphasized the importance of using clear language in our legislation to permit meaningful legal debate. However, language, according to Justice Gonthier, is not a panacea for unclear laws as

Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic.  Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.  Guidance, not direction, of conduct is a more realistic objective. 

With guidelines comes context and, in the end, the BCCA found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly.” Accordingly, “tumultuously” connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to common law England and the Riot Act. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration. 

Sadly, Ryan Berntt, the accused in question, was shot in the head by a police officer’s rubber bullet during the riot and sustained brain damage. In the end, it is individuals, both in the crowd and out, who suffer the most. It is the individuals, not the crowd, who stand charged or must face the inevitable morning after clean-up. Perhaps this sobering reality is worth remembering. 

Concealment of identity is another aspect of the offences under sections 63 and 64. These offences are found under section 65(2) for disguised rioters and section 66(2) for disguised persons in an unlawful assembly. The sections speak of someone wearing “a mask or other disguise to conceal their identity.” This offence can be viewed as an aggravated form of the offences involving rioting and unlawful assembly. The objective of criminalizing concealment is to protect the lawful investigation of crimes connected to sections 63 and 64. Someone who is rioting while wearing a disguise cannot be identified for purposes of arrest and prosecution. The offences also recognize the psychology behind rioting. Being anonymous can embolden some people to do acts they would not otherwise do. However, in an age of privacy, being unseen has value. Again, our laws must ensure that we are punishing concealment for the right reasons. Unlike section 351(2), which criminalizes the use of a disguise “with intent to commit an indictable offence,” sections 65 and 66 create an offence with no such specific intent. An individual may be convicted by the mere fact they are disguised while part of the riot or unlawful assembly. The intent required under s. 63 is to simply carry out a “common purpose,” not even requiring an unlawful common purpose as under the parties section in s. 21(2).

Another historical throw-back, still retained in these sections, is the requirement of an official who receives notice of a potential riot to disperse the unruly crowd through the reading of a proclamation as specified under section 67. This unenviable task requires the official, which includes a mayor or penitentiary official, to “command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect” as follows:

Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.

By virtue of the definition of who shall read this proclamation, it becomes clear that this section may assist in the circumstances of a so-called “prison riot” (see Thorne v R, 2004 NBCA 102 for an example of the reading of the proclamation during such an event). Of course, should the crowd fail to respond to this announcement within 30 minutes of its reading, the rioters are subject to prosecution under s. 68. Further, anyone who wilfully “opposes, hinders, or assaults” the reader, with force, will be subject to further repercussions under section 68(a). To add salt to the metaphorical wound, under s. 69, a peace officer who “receives notice” of a riot (not an unlawful assembly) is guilty of an offence should they not take “reasonable steps” to suppress the riot unless they have a reasonable excuse. This highlights the political significance of this section as it evokes images of those officials, sympathetic to the cause, who thus oppose the Crown or the government through inaction and passive acquiescence.

Reform of these sections seems sensible, yet the omnibus Bill C-75, which is due for t 3rd reading in the House does revise these sections but little. The Bill amends the punishment sections to hybridize the offences, permitting a Crown to elect to proceed by summary conviction as opposed to the straight indictable offence they are currently. This is hardly the kind of reform needed. Despite the Berntt decision and the narrowing of the meaning of the actus reus required to commit the offence to include violence, we need to ensure that in words and in aspect these sections reflect the kind of restrictions society expects and wants. The continued use of archaic terminology fails to adequately notify the citizens who are deeply connected to this kind of offence, the parameters of legal and illegal assembly. 

To make my point, I too will turn to history by discussing Rex v Pattersonan Ontario Court of Appeal decision from 1930. First, I want to reiterate that this decision applies the same sections in place today. Patterson was convicted of participating in a riot and the majority of the court of appeal upheld this conviction. Patterson was a labour unionist leading 800 unemployed people through the streets of Hamilton. We can all appreciate the desperation of the “dirty thirties” and the Great Depression that drove this event. The issue here was the parade through the streets involved a “restricted area” for which the crowd did not receive police permission to march through. Permission was sought but denied and Patterson deliberately decided to lead his people into the area. The mischief caused by those actions, according to the police, was to tie up traffic in the area and create an “unmanageable” crowd. Even so, there was no “physical violence doing bodily harm.” 

The majority decision of Justice Middleton, upholding the conviction, emphasized that although “the object of those who assemble may be perfectly innocent, even highly commendable, yet, if the circumstances, in the mind of the ideal, calm, courageous, and reasonable man, are such as to lead him to fear that the public peace is in danger, it is the duty of those assembled to disperse.” As result, Patterson was properly convicted. In contrast, the dissenting opinion of Justice Magee viewed the incident quite differently. The police advised the crowd that if they “conformed” to their direction to stay out of the restricted area, there would be “no interference.” However, should Patterson disobey their direction, there would be “trouble” and arrests would ensue. In terms of the restriction itself, according to Justice Magee, there was no proof as to why the area was restricted and on what legal basis. In fact, there was some evidence that the Chief of Police wanted no parade at all and if it did happen, Patterson would “suffer.” The dissent emphasized that even if Patterson may have been in breach of some City by-law, it was far from a criminal offence as,

So far as the evidence before the Court goes, the men were entitled, like other citizens, to go along any street so long as they conducted themselves properly. From beginning to end there is no hint that they did not obey the ordinary traffic regulations or that there was any difficulty or undue interference with others or by others with them. They excited no hostile feelings. They gave no evidence of intention even to resist the police. They expected arrests, but there is no indication that they intended to do otherwise than submit to arrest, as the appellant in fact did, and as others do, to test the legality of the acts of persons assuming authority. The police officer says there was no violence. Section 87 of the Code is aimed at disturbance of the peace tumultuously or provoking it. Here nothing of the sort was intended or occurred. There was not even disturbance of traffic, except that caused for a few minutes by the police themselves unwisely stopping the procession at the intersection. 

This decision is a stark reminder that a protest is truly in the eye of the beholder. As Justice Fish said in paragraph 71 of R v Levkovic2013 SCC 25 that  

Indeed, the doctrine against vagueness cannot be satisfied by inaccessible laws.  It is not enough for laws to provide guidance to legal experts; laws, as judicially interpreted, must be sufficiently intelligible to guide ordinary citizens on how to conduct themselves within legal boundaries.  As McLachlin C.J. explained in Mabior (in a passage more fully set out above): “It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act” (para. 14). 

 It is time for our laws on assembly to reflect this sentiment to ensure that our right to peaceably assemble remains articulable to the people for whom this form of public expression is a fulfillment of their democratic ideals. We also need to ask whether there are there better ways to control a crowd and whether there are other, less intrusive, offences available in the Criminal Codeto combat such unlawful conduct.

 Crowds, protests and even uprisings have different purposes depending on the time, place and space of the event. Just like people, crowds are complicated and engage all of the behavioural tools we have available in our society. Although difficult, to respond in an effective legislative manner requires a thoughtful review of the past and of the human condition. Thoughtful, but perhaps not dispassionate, as we need to recognize a crowd for what it truly is, which is an emotional expression of the inner workings of our society. The Code, as a societal document, must be a meaningful part of that discourse.

 

 

Casting Light into The Shadows: Finding Civil Contempt in the Envacon Decision (as originally posted on ABLAWG website at www.ablawg.ca but as tweaked by the author)

Case law and common sense tells us there must be a bright line drawn between civil and criminal matters. From standard of proof to sanctioning, civil justice diverges significantly from criminal justice. Despite this great divide, there are occasions when the two areas meet. When that occurs, the law creates something singular, defying categorization. Civil contempt is one such area. In the recent Alberta Court of Appeal decision in Envacon the Court grapples with these distinctions by emphasizing the criminal law character of civil contempt. The question raised by this decision is whether civil contempt’s criminal law character should dominate the proper interpretation of this unique application of law.

First, a civil contempt primer is in order. Civil contempt arises from English common law, although it can now be grounded in statute. It is a tool used by the civil courts to enforce court orders and to maintain the integrity of court proceedings. To be in contempt in the eyes of the law is to be in disobedience of that self-same law. Contemptuous behaviour cannot be countenanced and must be severely punished. A loss of liberty can be the result. A loss of legal rights is inevitable. Yet the kinds of behaviour captured under the rubric of civil contempt is varied. For instance, civil contempt proceedings can occur in the context of a self-represented suitor failing to attend case management meetings (Pintea v Johns2017 SCC 23 where the Supreme Court vacated the declaration of contempt) or when lawyers fail to comply with a Mareva injunction by disposing of assets as in Carey v Laiken2015 SCC 17(Carey) or when First Nations engage in a peaceful blockade contrary to court injunctions (Frontenac Ventures Corp. v. Ardoch Algonquin First Nation2008 ONCA 534). Civil contempt covers a wide net. It can arise from family matters, labour disputes, and environmental rights. An order of the court is one thread that binds them all. 

 Although a common law tool, it is found statutorily as well. It is in the statutory powers where civil and criminal law straddle the divide between them. In the Criminal Code RSC 1985, c C-46, for instance, section 127 creates a blanket offence for when any person, “without lawful excuse,” “disobeys” a court order, other than an order for monetary compensation. As worded, this offence can apply for non-compliance of a civil court order. Even so, this offence, although broadly engaged, is an offence of last resort. It cannot be utilized if there is another recourse, “expressly provided by law,” available. 

There are indeed other statutory recourses to the criminal law. Turning from the Criminal Codeto the Alberta Rules of CourtAR 124/2010, Part Ten, Division 4, provides a mechanism for non-compliance with rules of court and interference with the administration of justice under Rule 10.49. Civil contempt of court is found under Rules 10.51 to 10.53. These Rules specify the entire civil contempt regime including the process used to bring the alleged contemnor before the court (Order to Appear pursuant to Form 47, which can double as an arrest warrant), the mechanism for finding a person in contempt (Rule 10.52), and the possible punishment such as imprisonment “until the person has purged the person’s contempt” (Rule 10.53). Rule 10.52(3) provides criteria for declaring a person in civil contempt with the caveat that no such declaration will ensue should the person have a “reasonable excuse.” Similar powers are found for provincial court matters under s. 9.61 of the Provincial Court Act RSA 2000, c P-31. There, however, no such contempt declaration is made if the person furnishes an “adequate excuse.”

In the lower court decision in Envacon (2017 ABQB 623), Associate Chief Justice Rooke declared the Appellant/Defendant 829693 Alberta Ltd in civil contempt pursuant to the criteria enumerated under Rule 10.52(3) of the Alberta Rules of Court. The contempt related to a failure of 829693 Alberta Ltd to produce financial statements in accordance with three production orders issued by the case management justice. To assist in interpreting the requirements under the Rules, the Associate Chief Justice applied Alberta case law arriving at four key elements of a civil contempt declaration (Envacon QB at para 17). First, was the requirement for court orders to produce the statements. Second, was the notice requirement to 829693 Alberta Ltd of those orders. Third, was proof that the failure to produce was as a result of “an intentional act of a failure to act” on the order. Fourth, was the requirement, on a balance of probabilities, that the failure to act was performed without “adequate” excuse. 

As all elements were established, a contempt finding was declared. The remedy or more properly the punishment for the contempt was to strike the pleadings of 829693 Alberta Ltd should they continue to be in non-compliance with the orders. Solicitor and client costs for Envacon were also granted (Envacon QB at para 31). On appeal, the Court of Appeal found the first and second production orders were not “clear orders” and vacated the contempt relating to them (at para 68). The third production order, however, was clear and unequivocal requiring 829693 Alberta Ltd to produce the statements (at paras 14, 29 and 67). This left two real issues on appeal: whether 829693 Alberta Ltd failed to comply with the order and if so, whether 829693 Alberta Ltd had a “reasonable excuse” for that non-compliance. Ultimately, the Court of Appeal found 829693 Alberta Ltd did fail to comply with the order and there was “ample support” for the conclusion the corporation had no reasonable excuse (para 58). On the final issue of the remedy, the appellate court varied the penalty by removing the potential striking of 829693 Alberta Ltd pleadings and granting Envacon “costs on a solicitor and client basis” not on “solicitor and own client costs” (at paras 67 and 69. See also Twinn v Twinn2017 ABCA 419 for a discussion of the differences between the two forms of costs at paras 23–28).

The issues arising from this appeal are inter-related. A failure to comply may be connected to a reasonable excuse for doing so. A remedy is reflective of the context of the contempt and the corrective influence such a remedy may have. In other words, is the contempt power used to punish or is it used to coerce compliance? Is the court maintaining integrity of its processes or is it using the sanction, as in criminal law, to show the disapprobation attached to the contemptuous conduct? Here again we see that bright-line division between criminal and civil matter.

It is this bright-line which previous case law on civil contempt attempted to illuminate. In the 2015 Careydecision, Justice Cromwell at paragraph 31, commences discussion of the elements of civil contempt by comparing civil contempt with criminal contempt. According to the Court, criminal contempt required an element of “public defiance,” while civil contempt was primarily “coercive rather than punitive.” The Carey decision rightly demarcates criminal and civil contempt by invoking the traditional dividing line between the two areas of law. This public nature of criminal law versus the private matter of civil suits lends a contextual framework to the law of civil contempt as delineated in Carey and in Envacon. Although residing on two sides of the same coin, there is still a public aspect to civil contempt. The disobedience of a civil court order can add time and expense to a civil case, reducing access to the courts and impacting the administration of justice. In the era of Hyrniak v Mauldin,2014 SCC 7 and Jordan, 2016 SCC 27, where civil and criminal justice is at risk due to a complaisance attitude toward trial fairness, “public defiance” has a new and more robust meaning. Further, in certain circumstances, there can be a punitive dimension to civil contempt to highlight the public interest need for deterrence and denunciation. The higher standard of proof also recognizes the public dimension of civil contempt. In such a finding, the public is not indifferent but is engaged through the lens of public interest. The Envacondecision recognizes the overlapping aspects of contempt by requiring judges to impose remedies consistent with the specific objective of the original order. 829693 Alberta Ltd was required to produce financial statements as part of case management in order to “permit proper adjudication of the claims” (at para 67). The failure requires a coercive response not punishment.

The public versus private distinction not only impacts the remedy but also the interpretation of civil contempt requirements. The failure to comply is not an intentional or deliberate disobedience of the order itself. Rather, it is an intentional act to fail to act in accordance with that order. The difference is subtle yet essential. In the first instance, requiring intent to disobey the order, the fault requirement is high, consistent with the high level of subjective mens rea typically required for murder (intent to kill) or robbery (intent to steal). Such a high level of intention or, as Justice Cromwell in Careycharacterized it, contumacious intent, would “open the door” (Carey at para 42) to unjustifiable arguments against a declaration of contempt. The focus would no longer be on the act that creates the disobedience. Instead, the contemnor could argue there was no intention to disobey as they were mistaken as to the import of the order or they misinterpreted it, despite the order’s clarity. Such a situation would be incongruous. As suggested by Justice Cromwell, as he then was on the Nova Scotia Court of Appeal in TG Industries Ltd. v. Williams2001 NSCA 105 (TG Industries), it would provide a mistake of law defence for civil contempt when such a defence would be unavailable for a murder (TG Industries at para 11). Thus, the criminal and civil law analogy only goes so far. Civil contempt is firmly not criminal and the application of criminal mens rea principles have no place in the determination. 

In the case at hand, 829693 Alberta Ltd did not produce the financial statements (Envacon QB at para 17). There was some argument that the statements were not in 829693 Alberta Ltd’s power to produce as they were lodged with the CRA and the IRS. 829693 Alberta Ltd wrote to these organizations and provided the production order with no success. The requests made, however, were not in proper format (Envacon ABCA at para 23). Finally, the CRA sent documents, which were not complete. 829693 Alberta Ltd did not contact the CRA for explanation or with a further request (Envacon ABCA at para 26). Efforts with the IRS were no better (Envacon ABCA at para 27). The court of appeal agreed with Rooke ACJ that 829693 Alberta Ltd did not act with “a sufficient degree of due diligence” in attempting to comply (Envacon ABCA at para 28). 829693 Alberta Ltd thereby intentionally failed to produce as required by the order.

This finding, although logical, does impact the role of “reasonable excuse” in the contempt finding. If a finding of intentionally failing to act involves a due diligence discussion, then what kind of discussion is needed to determine if the person was acting without reasonable excuse? Is due diligence different than reasonable excuse and if so how? Carey is silent on this. Rooke ACJ considered both issues separately. In paragraphs 19 to 21 of his decision, Rooke ACJ found an intentional failure to produce based on a number of factors including that the order requirements were clear, that there was in fact no production of those statements, and that requests were “inadequately made” on the basis 829693 Alberta Ltd was “going through the motions,” the request lacked specificity and there was no “follow up.” (Envacon QB at para 21). Although “due diligence” is a loose summary of Rooke ACJ’s finding on that aspect, the discussion of “adequate excuse” ran much deeper. It is in that review, where the court is clearly going beyond the discussion points on 829693 Alberta Ltd’s failure to act. For instance, at paragraph 22, Rooke ACJ finds 829693 Alberta Ltd to have obstructed justice in the sense that their efforts to produce the statements from the CRA and the IRS was not the point. The point was their ability to produce by other means such as recreating the documents.

The Court of Appeal considered how the ruling in Careyon the intent required for civil contempt impacted the reasonable or adequate excuse requirement. Carey, in their view,did not change this requirement. Admittedly, Justice Cromwell in Carey did not directly discuss the impact of the reasonable excuse requirement. He did find the contemnor “was in contempt and his obligations to his client did not justify or excuse” the failure to comply with the Mareva injunction (Careyat para 3). However, on a review of the TG Industries decision, written by Justice Cromwell when he was on the Nova Scotia Court of Appeal, he suggests such an analysis may be pertinent to the discretion wielded by the judge after a finding of contempt (comments on the due diligence defence at paras 31 and 32). This is further supported by Justice Cromwell’s comments in Carey on the three elements of civil contempt, none of which include contemplation of an excuse, reasonable or otherwise (Careyat para 32). This omission may be explained by the context of Carey, which applies Rule 60.11 of the Ontario Rules of Procedure RRO 1990, Reg 194. That rule sets out contempt procedure but offers no criteria for a finding of contempt except that it may be found when it is “just” to do so. This is in contrast with the Alberta Rules that have clear requirements including a reasonable excuse determination.

The Court of Appeal does not, however, focus on these statutory differences but on the criminal/civil law differences. In their view, the discussion in Carey was about the level of intent needed for contempt, a classic criminal mens rea or fault element issue (at para 36). This did not, in their view, impact the reasonable excuse requirement, which, in the case of contempt, could impact actus reus or conduct (at para 37). By applying criminal law nomenclature such as actus reusand mens rea, the court is drawing an analogy between civil contempt and a criminal offence. Yet, the classic criminal law definition of an excuse given by Justice Dickson, as he then was, in Perka v The Queen, [1984] 2 SCR 232, 1984 CanLII 23 (SCC), suggests otherwise. An excuse, according to Justice Dickson, applies after the mens rea andactus reus are proven as it “concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor”(Perka at p 246). A successful excuse defence will result in an acquittal. The problem in Envacon is not whether the court properly identified whether the excuse pertains to mens rea or actus reus. The true problem with the decision lies in the use of the criminal law analogy in the first place. Civil contempt is not a criminal offence. The overlay of criminal law concepts onto civil contempt simply does not work. 

This ab initio error leads the court to further suggestive reasoning. At paragraph 37 of Envacon, the court explains how a reasonable excuse can relate to the actus reus

Particularly in the case of mandatory orders, an alleged contemnor may argue that his or her failure to do what the court required was not intentional. In these cases, a finding of contempt will turn on whether the alleged contemnor did enough to bring about the result the court order required. This enquiry is distinct from the question of mens rea or contumacious intent, which was at issue in Carey. Thus, not all “reasonable excuses” encompassed by rule 10.52(3) are excluded by the Supreme Court’s rejection of contumacious intent as an element of contempt.

The inquiry of whether the alleged contemnor “did enough” seems to be connected to whether they intentionally failed to do the act as required by the order, which Rooke ACJ did contemplate during discussion under paragraphs 19 to 21 of his judgment, separate from the “adequate excuse” discussion following those findings. The court of appeal appears to be conflating the finding of a failure with the reasonable excuse requirement. The reference, in paragraph 38 and 39 to Justice Cromwell’s position in Carey, that due diligence may be considered after a finding of contempt, hardly supports the court of appeal’s reasoning. As indicated earlier in this case commentary, Justice Cromwell’s position seems to weaken the applicability of reasonable excuse, not strengthen it.

Note as well the fluidity between the qualifier of that excuse as found in the various statutory pronouncements on civil contempt. There is “reasonable” excuse in the revised Alberta Rules as opposed to “adequate” excuse as indicated in the previous iteration. All of adjectives are further compared to the Criminal Code version of contempt with “lawful” excuse being the requirement. Although the Court of Appeal does not differentiate between these types of excuses, they should. Is the change in wording from adequate to reasonable mean anything in terms of meaning? If not, then the argument may be stronger for a civil view of cvil contempt. Certainly an “adequate” excuse suggests a much lower standard than even due diligence, which “reasonable” might invoke. Either way, comparing that terminology to “lawful” as required under the criminal law version of contempt puts us squarely into criminal law nomenclature. Such a term brings into the assessment those excuses defined by law or as found in other statutory authority. A much higher standard than merely due diligence.

The court of appeal, having found reasonable excuse as an element of civil contempt, discusses the burden and standard of proof for that element. It should be recalled that Rooke ACJ in assessing “adequate excuse” relied on previous Alberta case law that “once the actus reus of contempt is proven beyond a reasonable doubt, the contemnor may respond, on a balance of probabilities, with evidence and argument intended to try to demonstrate justification” (Envacon QB at para 23 and see FIC Real Estate Fund Ltd v Lennie2014 ABQB 105).Here again, Carey provides little assistance other than reiterating the ultimate standard of proof as proof beyond a reasonable doubt. There is no due diligence defence specifically contemplated in Carey and thus no need to suggest a different burden for the reasonable excuse requirement. 

It is also difficult to have a discussion on the burden of proof issue considering the clear message from Carey that civil contempt should be distinguished from criminal contempt. As such, civil contempt is unique and should not be viewed through the criminal law lens. There is no other civil construct requiring this high criminal standard. However, this high standard is required, not because civil contempt is criminal law, but because of the potential loss of liberty. It is the criminal law-like sanction that attracts the high standard not the criminal quality of civil contempt. The court of appeal by applying a criminal template to civil contempt obscures the real issues in the Envacon case.

In fact, the court of appeal had two viable options. The first option would be to find that reasonable excuse is subsumed by the Careycivil contempt elements and is not a separate decision-making requirement. The second option would be more consistent with Carey and TG Industries by finding reasonable excuse applies after the finding of contempt. Thus, reasonable excuse would have a gatekeeper discretionary function. Acting as a concession to human or corporate frailty, so to speak. Instead, the court of appeal entered into a regulatory offence type of discussion on burdens of proof and whether the burden shifted on the alleged contemnor to satisfy the court they had a reasonable excuse on a balance of probabilities. The court of appeal preferred to find that neither the legal or evidential burden shifted but that, depending on the circumstances, a prima facie case may require the contemnor to proffer some evidence of an excuse (para 48). This preference is no doubt resulting from the uncomfortable fit a shifting of the burden would be considering civil contempt is not prosecuted and is a judge-led determination. Nevertheless, making evidence of an excuse a tactical or strategic requirement makes good sense, but it still muddles the issues. The court of appeal in many ways creates something out of nothing and lends a criminal law nostalgia to a uniquely civil common law tool.

Civil contempt proceedings are not unique in Alberta. According to a CanLII database search, Alberta has 384 case decisions on civil contempt, second only to Ontario with 393 decisions. Civil contempt is an important expression of the court’s obligation to protect the integrity of the administration of justice. It is a powerful tool, which must be wielded carefully and sparingly considering the potential dire consequences. The stakes of a civil contempt finding are incredibly high as loss of liberty is possible and a loss of access to justice is inevitable. In an age where the spotlight of public confidence centres on the courts, civil contempt deserves clarity. The decision in Envacon may have cast more shadows on an area of law which appears to be cast in a light of its own.

 

A BRIEF BOOK REVIEW ON WHAT A BOOK CAN DO: JONATHAN RUDIN’S INDIGENOUS PEOPLE AND THE CRIMINAL JUSTICE SYSTEM: A PRACTITIONER’S HANDBOOK  

When I read a superb book, I want to share it. Although I do read e-books, the delight in owning a paper book is its quality of collectiveness. I can share it with family and friends with the hope a critical dialogue can ensue. As a law professor, I can enthusiastically recommend it to my students. When I read a well-written, insightful and impactful book, I don’t want to keep it to myself. The book I am about to discuss, Jonathan Rudin’s Practitioner’s Handbook on Indigenous Peoples and the Criminal Justice Systempublished by Emond Publishers, is one such book. It is a carefully written book for a broad audience of legal practitioners on complex legal issues. Yet it is also a compassionate book, profoundly articulating the failures of our profession and legal system to address historic and continuing wrongs against the Indigenous people of Canada. 

First a note about Jonathan Rudinwho has dedicated his life’s journey to the recognition of our legal failures in our relationship with Indigenous people. His pathway through this book has been straight and true as he himself created legal institutions and legal principles, through his professional work at Aboriginal Legal Services, to ensure no Canadian forgets these failures. He has worked hard to turn these failures into positive developments. This book is indicative of his work and a testament to it. 

The book opens as any legal treatise might by offering a literature review highlighting the systemic issues. But this is no ordinary literature review as page after page, Rudin summarizes each of the 13 Inquiries and Reports tabled since 1989, which have ruminated on Indigenous people in the criminal justice system. Starting with Donald Marshall Jrand ending in the 2015 Truth and Reconciliation Report, it becomes evident that for almost 30 years our system has expounded on these legal failures. It is equally clear, that for an equal number of years we have done little to nothing to change the gross inequalities inherent in our society which have caused those failures. There are an inordinate number of recommendations and a paucity of resulting change. This singular truth haunts the reader and compels us forward as we read page after page of case law steering us through those failures which have come to us through excruciatingly slow and deliberate steps. 

And yet for all of our legal slowness, the impact of Gladue, as discussed in this book, is not so much celebrated as it is waved as a flag of defiance in support of a future that will move faster and with purpose. The purpose being to eradicate the discriminatory practices which have given the statisticaltruths of Indigenous overrepresentation in our legal systems their quality of hardness and bitter remorse. In the last part of the book, we revel in the promise of the extension of Gladueprinciples into every nook and cranny of our legal systems. From sentencing to bail and beyond into military and civil justice, we see a glimmer of what our law can be should we take up the task offered by this book. Indeed, no lawyer even on the margins of practicing law, should put this book aside without thought to what they can do to bring about meaningful change.

Meaningful change can be found in this book. Woven between the pages are suggestive kernels of knowledge that each of us can take back to our law practices, court rooms, and law schools. There is, for example, a telling passage on Aboriginal English (and French), taken from the ground breaking work of Australian Socio-linguist Diana Eades, which can leave one with the kind of “aha” moment needed to create innovative approaches to intractable problems. There are many such veil lifting moments in this book.

Another change moment appears in the chapter dedicated to Indigenous courts as organic entities, holding the promise of a more responsive and proportionate Canadian legal system. This chapter holds real meaning for me, as on June 21, 2018, The Donald Marshall Junior Centre for Justice and Reconciliationwas opened on the Nova Scotian Wagmatcook Reserve. The Centre holds provincial and superior courts incorporating Indigenous justice traditions and healing. It is the embodiment of the kind of change willed by Rudin’s book.

Often we say that truth is stranger than fiction, in the case of this practitioner’s handbook, we can say that truth, like good fiction, can move us to do great deeds. Although the book can be considered a legal treatise, it shows that the law does not need to speak in code to be understood. It is a book which I will keep on my shelves and unreservedly recommend to any future or present legal practitioner. It is a book for sharing and for shared dialogue on what we can do in our profession to right the wrongs of the past. Most of all, however, it is a book offering the promise of a better future for Indigenous justice to be read and fulfilled by us all.

 

What Precisely Is A Regulatory Offence? (Cross Posted From ABLawg at https://ablawg.ca/2018/09/26/what-precisely-is-a-regulatory-offence/)

This semester, I will start teaching 1Ls the first principles of criminal law. The main components of a crime, consisting of the familiar terms of actus reusor prohibited act and mens reaor fault element, will be the focus. These concepts, that every lawyer becomes intimately familiar with in law school, are figments of the common law imagination as actus reusand mens reado not figure in the Criminal Code. The terms are derived from the Latin maxim, “actus non facit reum nisi mens sit rea,”which translates as “there is no guilty act without a guilty mind.”  This stands for the proposition that the actus reusor prohibited act must coincide or happen at the same time as the mens rea or fault element. That maxim, however, fails to shed light on what those terms mean in law. Indeed, what exactly is a prohibited act or actus reusdepends on the crime as described in the Criminal Code, and what exactly is the fault element or mens readepends on a combination of common law presumptions, statutory interpretation, and case law. In other words, it’s complicated. Even more complex is the vision of these terms when applied to the regulatory or quasi-criminal context. In the recent decision of R v Precision Diversified Oilfield Services Corp2018 ABCA 273[Precision], the Alberta Court of Appeal attempts to provide clarity to these terms but in doing so may be creating more uncertainty.

Although apparently straight forward, appearances in the regulatory world are not as they seem. Even the facts of Precision suggest the dichotomy that is regulation. On a high-level view, the incident is straight forward: a worker is involved in a workplace incident and suffers serious injuries. But when the trial court wades into the minutiae of the moments surrounding the incident, the factual matrix becomes complex and more nuanced. The simple incident devolves into an evidentiary whirl of drilling rig operations and oilfield “jargon” (at para 8). Arising from this factual cacophony is an incident involving manipulation of a machine by more than one worker creating a toxic mix of automation and human fallibility. The result is tragic.

However, the facts alone do not reflect the entire legal narrative. They must be viewed through the legislative scheme, adding an additional layer of intricacy. The defendant company was charged with two offences under the Alberta Occupational Health and Safety Act, RSA 2000, c O-2 [OHSA]. One offence was of a general nature invoking a general duty under s. 2(1) of the OHSAto ensure the health and safety of the worker “as far as it is reasonably practicable for the employer to do so.” The other more specific offence, found under the Occupational Health and  Safety Code 2009, Alta Reg 87/2009 [Safety Code], sets out, in regulatory fashion, the detailed rules of workplace engagement (at para 38). The specific rule allegedly breached was s. 9(1) of the Safety Code, requiring the company to take measures to eliminate identified workplace hazards or, “if elimination is not reasonably practicable,” to control them. Unsurprisingly, these two offences are not self-contained but overlap; a not unusual occurrence in regulatory enforcement. 

This overlap in offence specification also results in an overlap in the factual foundation. Even so, at trial, the prosecutor took different legal approaches in proving each charge. The offences are strict liability offences, a form of liability proposed in R v Sault Ste Marie, [1978] 2 SCR 1299[Sault Ste Marie]. This requires the prosecutor to prove the actus reus beyond a reasonable doubt, from which the fault element would then be inferred. Upon such proofthe burden of proof shifts onto the defendant to prove, on a balance of probabilities, they exercised all due diligence or took all reasonable steps to avoid liability. This formula for strict liability remains unchanged since the seminal decision of Sault Ste Marie.For instance, in La Souveraine v. Autorité Des Marchés Financiers[2013] 3 SCR 756[La Souveraine], the Supreme Court’s most recent discussion of due diligence requirements for regulatory offences, the court reiterates these basic elements as essential for the fulfilment of regulatory objectives of public welfare and safety (La Souveraineat para 54). Effectively then, the due diligence defence rebuts the presumption for fault. The onus rests on the defendant to discharge this burden on the premise they have the best evidence of the reasonable steps and industry standards required to proffer such a defence. For the prosecutor, proof of the actus reus is of vital importance in founding a conviction. 

 Consistent with this strict liability notion, the prosecutor in Precision, for the general duty offence under s. 2(1) of the OHSA, relied upon “accident as prima facie proof of breach” pursuant to R v Rose’s Well Services2009 ABQB 1[Rose’s Well]. The Rose’s Well decision considered the same section in arriving at this position (Rose’s Well at para 68 and Precision at para 5). Quite simply, this was an “I think therefore I am” position: there was an accident, the worker was harmed, and Precision Corp. was the entity directing such work, ergo the prosecutor has proven the actus reus beyond a reasonable doubt shifting the burden onto the defendant. The more specific Safety Code offence, however, required a more detailed analysis of the actus reus. In neither of the offences did the prosecutor prove, as part of the actus reusrequirements, what was “reasonably practicable” in the circumstances. This, the prosecutor submitted, was a matter of proof for the defendant as part of the due diligence defence. The trial judge agreed, convicting Precision Corp. of both charges. 

On summary conviction appeal, the judge found errors in this approach. Although the “accident as prima facie proof of breach” could be sufficient to prove actus reus in some cases, it was “not a strict rule of law” (at para 27). At trial, the prosecutor failed to prove the commission of a “wrongful act” and as such failed to prove the required actus reus components of the general duty charge.  The “wrongful” part of that act could be found, according to the summary conviction judge, in the failure of Precision Corp.to do what was “reasonably practicable” to avoid the harm as required of the section. This phrase “reasonably practicable” was an essential element of the actus reusand without this evidence, the charges could not be made out. The appeal was allowed, and acquittals entered. It is that distinctive “reasonably practicable” phrase, which colours the meaning of the facts and in turn presents difficulties in discerning the not so bright line between actus reus and mens rea in the alleged contravention of general duty in a regulatory statute such as that set out in s. 2(1) of the OHSA.

This means that, unlike most appeals, the facts frame the issue and drive the legal principles. The conversation immediately devolves into a part legal, part factual debate on causation and fault, which requires a deeper dive into the facts. Even the characterization by the summary conviction appeal judge of the act as “wrongful” raises the level of the discourse up a notch. But how deep must the prosecutor go when it is a regulatory offence and not a criminal one? The exacting standards required of a criminal case gives way when the overarching objective is public welfare. Yet, where that line is to be drawn is an ongoing moving target that at some point must give way to clarity and immobility. An incident happens but how much detail is required for the prosecutor to meet the burden of proof? An incident happens but is it merely an unforeseeable accident? An incident happens but is it preventable and did the company do all that is “reasonably practicable” to prevent it? Already the factual matrix broadens into a general discussion of the company’s duty of care and the standard on which they must discharge that duty. However, in the world of actus reusand mens rea, as borrowed from the criminal law, the lines between act and fault are rigidly applied. The main issue in Precision is whether the lines as drawn in previous case law are workable in this regulatory regime of occupational health and safety.

 The majority, written by Madam Justice Veldhuis — yes, this is a split decision of the court suggesting this principle may have a future in the higher court — finds the phrase “as far as it is reasonably practicable for the employer to do so” is an active part of the actus reus. The minority decision of Justice Wakeling takes the opposite view, leaving the issue of reasonableness to the fault element analysis required in considering due diligence. Although the lines are drawn inPrecision, they are not written in stone. There are problems with both the majority decision and the dissenting opinion in this case, problems that are inherent to the regulatory/criminal law divide.

 For instance, this slippage from actus reus into mens rea seems natural when considering regulatory offences. La Souveraine, one of the more recent decisions of the Supreme Court on regulatory matters, makes this point. There, Justice Wagner, as he then was, for the majority of the court makes preliminary comments on the jurisdiction of the court to hear arguments on actus reus issues when leave was granted on the basis of mens rea due diligence concerns (La Souveraine at para 20). Justice Wagner finds the two issues “inextricably linked” (La Souveraine at para 26) and therefore the jurisdiction to consider both was evident. 

Here too, in Precision, it is difficult to separate the two concepts. In some ways this inability to distinguish clearly between the prohibited act and the fault element results in the finding of the majority in Precision that proof of what was “reasonably practicable” must be proven by the prosecutor as part of the actus reus. This circularity is embedded in the creation of strict liability as the compromise “half-way house” form of liability in Sault Ste Marie (at pp 1313, 1315 and 1322). According to Justice Dickson, as he then was, in Sault Ste Marie, this purely regulatory type of liability was needed to relieve the harshness of the absolute liability offence for which a defendant has little ability to defend themselves. Strict liability also assuages the concerns inherent in subjective liability offences, which by nature mimic the full mens rea requirements of proof from criminal law. Instead, strict liability permits a contained but fair due diligence defence; a defence mirroring the regulatory obligations of the defendant, yet in a manner which relieves the prosecutor from climbing into the psyche of the defendant and taking on the defendant’s expertise and knowledge  to prove a fault element beyond a reasonable doubt. With strict liability, the prosecutor need only prove beyond a reasonable doubt the objective facts of the actus reusthus triggering the response from the defendant to show they acted duly diligently. Key to this form of liability is the inference drawn from the actus reus of prima facie proof of the fault element. It is in this half-way form of liability where the mens rea or fault element can be found in the actus reus, binding the two concepts together. It is no surprise then that the majority in Precision sees the need for proof of a mens rea type concept as part of the actus reus, where, based on statutory interpretation, the legislature specifically emphasized the need for it. Without such a finding, the phrase “reasonably practicable” would have little to no meaning. 

But does it have meaning on this reading? Or is it merely a euphemism for “show me the facts.” Is not the reality of the majority decision in Precision merely another way of putting the prosecutor on notice that, with this offence as it is worded, they cannot simply rely on the surface facts of an accident but must do their own “due diligence” by leading evidence of the circumstances surrounding the incident? 

Notably, the majority’s decision may parallel similar findings in careless driving prosecutions, where actus reus and mens rea elements are interconnected and provide mutual meaning. In a recent decision from the Ontario Court of Justice in R v Gareau2018 ONCJ 565, the Justice of the Peace considering the issue made insightful comments on the “unique nature” of the actus reus found in careless driving under the provincial legislation (para 48). JP McMahon correctly points to the essential actus reus component of the charge involving a failure to meet the standard of a reasonably prudent driver (see also R v Shergill[2016] OJ No 4294 (QL) at para13). Proving this, the JP opined, “easily leads to confusion” as negligence becomes part of the actus reus proof process (para 48). The “practical effect” of this, according to the JP, is that a defendant will be acquitted if the defendant is able to raise a reasonable doubt as to whether they were driving below the required standard. Raising a reasonable doubt is all that is needed as the standard of care forms part of the actus reus, which must be proven by the prosecutor beyond a reasonable doubt. Raising a reasonable doubt, as suggested by the JP McMahon (at para 49), is an easier burden to meet than the standard of proof on a balance of probabilities, which is required for a due diligence defence (See R v Wholesale Travel Group Inc[1991] 3 SCR 154at pp 197–198 [Wholesale Travel]). The same can be said of the Precision decision by importing reasonableness into the actus reus, the enforcement mechanism weakens, bringing into question whether the objectives of regulatory regimes are being advanced.

As with all that is regulatory, the Precision decision engages a myriad of tough issues. So tough, in fact, that the court of appeal required further argument on a number of specific issues, which resulted in a divided court (at para 31). It is telling that this re-focus was required as the parties drifted back into the mens reaor due diligence tropes. As Gareau reminds us, looking at actus reus where a duty of care is involved is like looking into the fun house mirror that endlessly repeats the same image. Regulatory mind tricks aside, the issues in Precision span the legal repertoire with concerns involving the viability of long-held legal principles, application of the rules of statutory interpretation, proof and procedural requirements. All of this, of course, is in the context of promoting the pressing and desired societal objective of ensuring a safe and healthy workplace environment. 

Regulation of legitimate activities is a sign of good government and is at the core of our democratic ideal. Of course, there is room for a robust debate on the quantity of regulation needed. Naysayers tend to depict a “nanny state” where our lives are burdened with rules, while those in favour look to the benefits of regulation as providing incentives or nudges to individuals to make those safe and healthy life choices. Whichever side one takes, we all agree that, particularly in the workplace regulation is needed and the proper incentives to comply, considering the potential harm, must be vigorously enforced. Precision presents a situation, however, that is all too familiar in the regulatory field: when it comes down to the mechanics of enforcement, who is in the best position to bear the burden of proof and cost? More important is the question of which approach will promote the objective of providing the right kind of incentive without severely impacting the real economic benefits of such activities.

The added difficulty, as exposed in Precision, is the reality of the regulatory regime. In the regulatory world, there are no clear edges of the criminal law; rather, there are blurred signposts where the law is part criminal, through the application of criminal law concepts and terminology, and part civil law, as the conduct complained of are not true crimes like murder or theft but engages what we would consider legitimate activities. We want to promote those activities, but we also want to ensure these legitimate activities are performed mindfully, to use a new age term. Mindfulness means we need to recognize we are part of a collective of individuals all doing our own thing but doing it in the same space as one another. We want to be sure people conduct themselves with the other person in mind; when we mow our lawn, when we smoke a cigarette, and when we work, for example. Work, play, and leisure time is not, therefore, truly our own. Underlying this is our drive toward the market economy as we want to incentivize people and corporate entities to strive for innovation and production. In criminal law terms, this is foreign; we want to incentivize people to make the right choices, but we do not concern ourselves with how they make them, as long as they are within the boundaries our criminal law has set for them. Does it therefore make sense — common sense — to impose on the regulatory world criminal-like requirements when the two worlds, criminal and regulatory, are objectively and subjectively not the same?

As recognized by the Supreme Court in a number of decisions (See e.g., Beaver v The Queen[1957] SCR 531, Sault Ste Marie, and Wholesale Travel), there are fundamental differences between the criminal justice system and regulatory regimes. Justice Cory in Wholesale Travel succinctly described those differences: “criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care” (at p 219). Thus, the two systems are different yet, “complementary” (La Souveraineat para 90). Complementary does not mean one system eclipses the other. Complementary suggests one needs the other. Criminal law underlines our fundamental values and collectively speaks out when egregious wrongs are committed. Regulatory law safeguards the public interest and creates a safe place for us to live. We need both. It is therefore, as suggested by Justice Wagner in La Souveraine “essential not to lose sight of the basic differences between the two systems and, as a result, to weaken the application of one by distorting the application of the other” (at para 90). In the context of Precision, this caution can be applied to the fallacy of reading into the regulatory field the ill-suited rigidly defined criminal law concepts. For in the regulatory regime the individual rights paradigm is not paramount. Rather, the public good is supreme.

What will be the fallout from this decision? Certainly, prosecutors will be mindful of their proof and particularization obligations under the pertinent sections of OHSA. The exact phrase, “as far as it is reasonably practicable for the employer to do so” is integral to this legislation and the previous iterations of this section. Yet, a CanLII search reveals 561 legislative references to the phrase “reasonably practicable” in many occupational health and safety regulations across the country, covering everything from length of ladders (See s. 9 of the Federal Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations, SOR/2015-2) to general duties of employers in Saskatchewan (See s. 3 of The Occupational Health and Safety Amendment Act, 2012, SS 2012 c 25). This decision reaches far and will reverberate in the workplace and the many “textbook” examples of public welfare legislation (Precision at 46), where a duty of care is required. It may also prove to be the Supreme Court decision which will precisely describe the constituent elements of a regulatory offence. This, we hope, will not be done in criminal law terms but in a manner befitting the objectives of our regulatory regimes.

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!