Charles Dickens Is On The Side Of Justice

I would be remiss, if I did not recognize the 200th birthday of Charles Dickens and his characterization or, more accurately, “caricature-ization” of law and justice.

In Great Expectations, Pip, the narrator of the book, defines himself through the backdrop of English law. As a child, Pip imagines a spine-chilling scene of officers of the law surreptitiously lying in wait to take him before the Assizes to avenge the bloody nose and black eye he gave a “pale young gentleman” after a fair fight.

The possibility of being brought to “justice” caused Pip to act as a stereotypical guilty man: obliterating all traces of the physical evidence against him and concocting a false explanation for the injury to his hand. Of course his furtive actions were unnecessary as only Pip’s conscious showed any taste for vengeance: in reality, the incident was a normal every day school-yard fisticuff. The presence of guilt, in this instance, was unnoticed and unimportant.

But the issue of guilt or innocence becomes important later, when a murder trial, detailed in a local newspaper, is tried by an adolescent Pip and various townspeople while drinking at the local bar. “Guilty as charged” is the general consensus except for the stranger, clearly a foreigner, who reminds the blood-thirsty ersatz jury of the presumption of innocence.

The newspaper has merely sketched the prosecutor’s evidence without the benefit of cross-examination, the man points out, a central principle in the adversarial system and a cornerstone of a fair trial. Furthermore, the accused had not as yet testified and was therefore unheard in his defence. Any jury, enthused the gentleman, holding true to their oath, would not, could not, pronounce the unfortunate prisoner guilty at such an early juncture of the case. The townspeople, being duly chastised, having seen the error of their enthusiasm, humbly retract their feelings of guilt. In the same moment, the stranger, the Londoner, is revealed as a lawyer and the bearer of Great Expectations.

I have already named Dickens’s Bleak House, in a previous posting, a must read for lawyers or anyone interested in the law for the dark and dreary atmosphere of the novel arising from the impenetrable fog of the court of Chancery. Yet, so many of Dickens’s books read like a first year law case summary as exemplified by these two, of many, legal passages found in Great Expectations.

In fact, let us return to Great Expectations in mid-scene as Pip watches Mr. Jaggers, the London lawyer from the previous passage and now his Guardian, “going at it” in the Police or Magistrate Courts in London. As I could not possibly summarize this delicious passage with any dexterity, I quote it as follows:


We dived into the City, and came up in a crowded police-court, where a blood-relation (in the murderous sense) of the deceased, with the fanciful taste in brooches, was standing at the bar, uncomfortably chewing something; while my guardian had a woman under examination or cross-examination,—I don't know which,—and was striking her, and the bench, and everybody present, with awe. If anybody, of whatsoever degree, said a word that he didn't approve of, he instantly required to have it "taken down." If anybody wouldn't make an admission, he said, "I'll have it out of you!" and if anybody made an admission, he said, "Now I have got you!" The magistrates shivered under a single bite of his finger. Thieves and thief-takers hung in dread rapture on his words, and shrank when a hair of his eyebrows turned in their direction. Which side he was on I couldn't make out, for he seemed to me to be grinding the whole place in a mill; I only know that when I stole out on tiptoe, he was not on the side of the bench; for, he was making the legs of the old gentleman who presided, quite convulsive under the table, by his denunciations of his conduct as the representative of British law and justice in that chair that day.


It is difficult, after reading this passage, to also "make out" on which side Charles Dickens was on: for English justice or against. Certainly, Dickens own personal experience with law was less than salutary as his family bore the burden and shame of debtors’ prison, a thoroughly Dickensian institution for the working poor of England who were unable to meet their financial obligations.

 

His keen insight into lawyers’ “going at it” may have also come from his experience of working as a clerk in a law office and as a court reporter at the Doctors’ Commons. The Doctors’ Commons was “a college, "or common house" of doctors of law, for the study and practice of the civil law.” Certainly, his fictional accounts of the inequities found in law and in society influenced the reformation of England’s harsh child labour laws, unveiled the intolerable conditions in the poor houses, and revealed the general imbalances between the working poor and the comfortable working class: all by-products of the Industrial Revolution.

This passion for fairness and justice was handed down to Dickens' son, Henry Fielding Dickens, who went on to become a brilliant barrister and Judge. Indeed, Henry’s son was also a successful barrister. All came full circle with Dickens’s great grand-daughter, Monica Dickens, who was a best selling novelist in the 40’s and 50’s, and founded the first Massachusetts branch of the Samaritans, a charitable organization providing support and assistance for those contemplating suicide.

All of this, however, will not stop me from ending this blog with another Dickens law quote from Oliver Twist, when Mr. Bumble, faced with the perfidy of his wife and the conclusion he too was in on the deception, states:


If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, 'the law is a ass—a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.' Laying great stress on the repetition of these two words, Mr. Bumble fixed his hat on very tight, and putting his hands in his pockets, followed his helpmate downstairs.

 

Whatcott In The Courts Again

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

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

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

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

Read my previous postings on the issue here:

The Road Taken By The Supreme Court of Canada

A Message of Tolerance

Blog Update: The Limits Of Expression

Law, Literature, And Inherit The Wind

 

 

The Presumption of Innocence: The International Perspective

The presumption of innocence is firmly entrenched in the Anglo-American justice system. As discussed my last two postings, found here and here, the presumption of innocence has grown into its own: from simple beginnings as a rule of evidence, it is now the cornerstone of our criminal law.

As a result of the development and acceptance of the presumption of innocence in the Western legal tradition, the presumption has also taken root internationally. Most International human rights documents speak to the presumption of innocence as a required element of a fair trial.

The presumption of innocence protection appears under Article 11(I), in the post-World War II Universal Declaration of Human Rights, of which I have discussed in a prior posting. Additionally, the International Covenant on Civil and Political Rights of 1966 in Article 14 contains the right to the presumption of innocence. As a signature nation to the UN, Canada has adopted these documents as evidenced by our own Charter equivalent found in s.11(d).

However, it is easy to see why Canada, the United States, and other Commonwealth countries would readily implement this right into their legal process considering the English common law legal origin of the presumption of innocence. For other signatory countries following the differing tradition of an inquisitorial based legal system or Continental Law, the issue of implementing the presumption of innocence is not as simple despite their acceptance of the Latin maxim of in dubio pro reo, meaning “when in doubt, for the accused.”

In France, for instance, the presumption of innocence or presomption d'innocence comes not from case law, but from the political and philosophical heart of the Nation as found in the 1789 Declaration of the Rights of Man and of the Citizen under article 9, which reads in part “Tout homme etant presume innocent jusqu'l ce qu'il ait eti dc'clare coupable” or “As all persons are held innocent until declared guilty.” As argued by Francois Quintard-Morenas in an excellent journal article in The American Journal of Comparative Law on The Presumption of Innocence in the French and Anglo-American Legal Traditions, although the French have arrived at the presumption in a more cultural manner and have implemented it consistent with their legal tradition, it is still a defining principle of French continental law.

The German concept of the presumption of innocence or unschuldsvermutung derived from the Latin maxim of in dubio pro reo was integrated into their legal system as a result of the adoption of International human rights documents such as the 1950 European Convention on Human Rights in article 6(2). Again, World War II had a large impact on the acceptance of this principle.

Interestingly, Spain and Russia have, within the last decade, turned to a jury trial system requiring the implementation of the presumption of innocence as an integral part of the jury trial process. Although continental law accepts the concept, it is quite another matter to integrate the concept into the continental inquisitorial system. It becomes even more complicated when the jury system, a purely English common law construct, is imposed. For an interesting discussion of this issue, see Stephen Thaman’s article Europe's New Jury Systems: The Cases of Spain and Russia in Law and Contemporary Problems, Vol. 62, No. 2, The Common Law Jury (Spring,1999), pp. 233-259.

In the People’s Republic of China, the presumption of innocence does not exist, but neither does the presumption of guilt. Instead, the Chinese legal system “presumes” nothing, preferring to seek “truth from facts” by “taking facts as the basis and the law as the yardstick.” Yet, this seemingly neutral manner of deciding guilt or innocence contradicts case reality: certainly the “Gang of Four” trial would suggest otherwise. For an interesting discussion of these issues, see The People's Republic of China and the Presumption of Innocence by Timothy Gelatt found in The Journal of Criminal Law and Criminology (1973-), Vol. 73, No. 1 (Spring, 1982),pp. 259-316.

All of this leads us to appreciate that Anglo-American legal principles do not “rule” the world. There are many other jurisdictions where our fundamental core principles are either not followed or are merely general guidelines. Legally, this may be acceptable. When, however, a fundamental value like the presumption of innocence is involved, it becomes more difficult to accept the differences.

 

Tracing The Presumption of Innocence Through A Survey of Supreme Court of Canada Cases

In yesterday’s blog, the presumption of innocence, as a legal principle, was traced from its seemingly innocuous origins as a rule of evidence in civil cases to the status of a fundamental, constitutionally entrenched, principle of the criminal law. Today, I will detail how the presumption of innocence took on such elevated standing through a brief survey of early Charter and pre-Charter Supreme Court of Canada cases.

On a quick review of the Supreme Court of Canada cases discussing the presumption of innocence, it is the 1985 SCC reference case of Re B.C. Motor Vehicle Act, which explicitly crystallizes our present concept of the presumption of innocence as a fundamental principle of the criminal law and as a fundamental societal value. Justice Lamer described the presumption as not just a procedural tool but also as a substantive concept which “has both a societal and an individual aspect and is clearly fundamental; to our justice system.” The Charter’s influence in protecting such an expansive view of the presumption, thereby making the principle a right, is evident in other early post-Charter cases on the issue, such as the earlier case of Dubois in 1985, Oakes in 1986, and Whyte in 1988.

As an aside, it is no surprise that it is Justice Lamer who gives the presumption of innocence such an expansive and meaningful definition. Prior to his judicial appointments, Antonio Lamer was the Vice-Chairman of the Law Reform Commission of Canada (LRCC) in 1971 and Chairman thereof in April 1976 at a time when the LRCC was actively involved in shaping the jurisprudential landscape of the law.

In terms of pre-Charter, although Justice Estey, dissenting in the entrapment case of Amato in 1982, called the presumption of innocence a “fundamental doctrine,” there is little of this nomenclature in earlier cases. For example, in the 1969 Lampard case, the presumption of innocence is merely called “rebuttal,” hardly a powerful descriptor of the “cornerstone” of criminal law. Other pre-Amato cases characterize the presumption in the same manner: as a presumption, which ceases if the Crown can prove guilt beyond a reasonable doubt. Even in some earlier cases, the presumption is referred to as the “general presumption of innocence,” again a thoroughly unsatisfactory way of describing a constitutionally entrenched right. Interestingly, in all of these cases, the presumption is an adjunct to the burden of proof.

Finally, consistent with Fletcher’s theory of the origins of the presumption in English civil law, is the 1883 SCC case of McRae v. White. The case was one of unjust and fraudulent preference in an insolvency action. Although a civil suit, the case does have shades of fraudulent and therefore criminal intention, but the result is based upon a failure of the plaintiff to satisfy the onus as required by the Insolvency Act of 1875.

In other words, the plaintiff could not rebut the negative: that a man is presumed to fulfill his legal obligations. In this case, the defendant, in good faith, took on debt with the honest belief he would fulfill his obligations. The plaintiff was unable to establish otherwise. Admittedly, there is no mention of the actual phrase “presumption of innocence,” but the headline of the case reads “Insolvent Act of 1875—Unjust preference—Fraudulent preference—Presumption of innocence.”

Clearly, the presumption of innocence has matured into a much more powerful concept than originally imagined. This is so, at least in the legal arena. In my final posting on the issue, tomorrow I will discuss the international development of the presumption with an additional look at the historical non-legal usage of the concept.

 

 

 

 

 

The Presumption of Innocence: The Making of a Principle

The presumption of innocence is at the heart of our criminal justice system. As a cornerstone of criminal law principles, the presumption of innocence guarantees a fair trial for all. By ensuring only those individuals who are found guilty will be punished, it protects the vulnerable individual from the awesome powers of the State. It is indeed a fundamental principle, constitutionally entrenched in our Charter, and an integral part of our rule of law.

As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool; it has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture. It can be found in journalism, literature, movies, and television.

Yet, historically, according to academic scholars, the presumption of innocence was not a fundamental principle but a general rule of evidence used in civil cases. In a series of articles, George Fletcher, a well-known scholar now Cardoza Professor of Jurisprudence at Columbia Law School, maintained the presumption of innocence did not become part of the common law nomenclature until the mid-1800s.

In fact, the concept of the presumption arose from a series of civil cases in the early 1800s wherein the court applied the common sense evidentiary rule that a man (yes, this is the early 19th century) is presumed to fulfill his legal obligations. Thus, if a plaintiff is alleging the negative situation, that the defendant did not fulfill his legal obligation, then the plaintiff must prove otherwise. Only later, did this evidentiary rule apply to criminal case and then became, what we call, the presumption of innocence.

According to Fletcher, even the core concept of the burden of proof in a criminal case, which requires the Crown to prove guilt beyond a reasonable doubt developed separately from the presumption of innocence and only later, in the 1850s, did these two principles become connected. In the Commonwealth, the ultimate articulation of this connection is found in every first year law student's curriculum: the House of Lords case of Woolmington v. D.P.P from 1935. In this seminal case, Lord Sankey famously describes the presumption of innocence and the burden of proof in a criminal case, which is to prove the crime beyond a reasonable doubt, as the "golden thread...woven deep into the fabric of our law."

In the Oakes case, Chief Justice Dickson waxed eloquent on this dual concept and found the presumption of innocence essential to society as it "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." It was indeed the Charter which elevated and crystallized the presumption of innocence as the fundamental concept of our criminal justice system.

Freedom of Expression: Poems, Posters, And Billboards As A Form of Complaint

In previous postings, I discussed the Occupy movement's "Tent Cities" as a form of political protest with expressive content and therefore protected expression under s.2 of the Charter. Once Charter protected, the analysis then shifts to the s.1 limitation analysis to determine whether or not a restriction of that expression is justified in a free and democratic society.

Political protest, as expression, is readily accepted as worthy of protection. The difficulty, however, is when we look to more obscure kinds of expressive protest, such as a personal complaint. This was the case in a recent decision by the Ontario Court of Appeal in R. v. Jeffers.

Mr. Jeffers was convicted of mischief and counselling murder as a result of distributing and plastering posters across Toronto, which referred to his dire financial situation caused by the bank's re-possession of his home. In one poster, the basis for his convictions, Jeffers reproduced a photograph of a city councillor with the councillor's name and the word "murder" as seen below:


Murder Help

Councillor Thompson Jeffers

Help Black 647-xxx-4476
We Black



Mr. Jeffers, who was not originally from Canada, had a grade 5 education. According to Mr. Jeffers, the posters were a cry for help and were not intended to harm the city councillor, who had helped Mr. Jeffers in the past. The councillor did not testify at trial.

In quashing the convictions and substituting acquittals, the Court of Appeal, applying the legal principles required to prove the offences, referred to postering as "an effective and inexpensive means of communicative expression" and therefore "criminalizing this kind of conduct is not in society's best interest." The posters, albeit crude and childish, were a public airing of an individual's frustration with a plea for help from the City and were, in light of all of the circumstances, not criminal.

The Jeffers case made reference to another earlier Ontario Court of Appeal case, R. v. Batista, wherein the accused wrote poems and posted the verses throughout a Mississauga neighbourhood. The poems were about the accused's city councillor, and as with Jeffers's posters, not the most erudite literature, but were found not criminal in nature. A sample of the impugned section of the poem is reproduced below:


Now this bad driver that

WE only know as Pat Saito

who run away from thataccident

site is going to think twice

before backing up and looking at

pot holes instead of doing

Her job



We are going to dig a pot hole

about six feet long and 3 feet wide

and five feet deep to hide

her body and God will take care

of Her Soul, but We can not

forgive her for doing nothing


She can keep running

at a good pace but

We will make sure

that She is in HEAVEN

and out of the Race.


In this case, the Court considered the elements of the offence of threaten death in the context of freedom of expression under s. 2 (b) of the Charter and the vital role political satire, albeit "amateurish, foolish, and offensive," plays in a democracy. Indeed, the Court found:

The poem’s purpose of denigrating the elected councillor’s level of job commitment or competence provides important context for a consideration of whether the impugned stanzas of the poem constitute a threat. All citizens are entitled to freedom of expression in the political forum, including those whose language skills are limited. While it was unnecessary for the trial judge to engage in the in-depth s. 2(b) analysis urged upon him by trial counsel, it was necessary to consider the poem as political commentary before determining whether it constituted a threat at law.

Of course, freedom of expression is no stranger to signage as a form of complaint and grievance. In the 2002 Supreme Court of Canada Guignard case, a billboard erected on Guignard's building showing dissatisfaction with an insurance company, was protected expression under the Charter and the municipal by-law restricting that right was found to be unconstitutional.

The sign, as a form of commercial expression, was also a form of "counter-advertising" wherein a consumer exercised his or her right to show dissatisfaction with a product with the additional benefit of forewarning other consumers. This expression of complaint or dissatisfaction, not unlike the complaints found in Jeffers and Batista, "is a form of expression of opinion that has an important effect on the social and economic life of a society."

The Jeffers and Batista cases are yet another example of the Courts using Charter values to interpret their findings. Thus, the Charter colours decisions with broad strokes without the rigidity of a direct Charter analysis. This subtle use of the Charter is the future of constitutional law as Charter values incrementally change our laws to make them more robust and relevant to society.

Connecting Hitchens, Havel, And Kim With Human Rights

This past week three extraordinary people died: Christopher Hitchens, Vaclav Havel, and Kim Jong-il. All three impacted the world and human rights, but in very different ways.

When any famous or, shall we also say, infamous people die, there are many news articles, opinion pieces, and blogs about them and their legacies. Some postings were laudatory, as in the case of Vaclav Havel, the enduring symbol of the Czech "Velvet Revolution" or what the Czechs' prefer, "the November events." Havel was an artist, a celebrated poet and playwright. But he was also a dissident who was deeply passionate about his homeland and the concept of democracy. After the Revolution, Havel was appointed President and returned Prague to its magnificence as the "Paris of the East." 

Other articles were castigating: the demise of Kim Jong-il revealed the pathos of a country caught in the iron grip of oppressive dictatorship. A country where "the opium of the people" was the leader himself: worshipped and idolized. To observe the grief of the country over Kim's demise is like watching a slow-moving train wreck as people, young and old, collapse on the streets. A crumpled and lifeless country, devastated by the loss of a caricature of a leader. Truly, the antithesis of Havel - an AntiHavel - not embracing a nation but preserving it under glass as an ornament of the past.

Still other passages were quirky and colourful like the man whom they purported to describe: Christopher Hitchens, himself a demi-God (he would have hated that!) to the witty and smart set. But he was a scrappy fighter for the underdog and a true critic, or shall I say cynic, of the world. He was an observer, who also participated, and that made him the ultimate man of the post-modern era. 

With all three men, we are faced to re-evaluate our own consciousness of being, our own concept of freedom, and our own mortality. Shall we think big and be like Havel: become a social activist and speak out for issues we hold dear? Or shall we look at the individual or micro-rights and change the world, one individual at a time. We definitely will not be Kim and rigidly adhere to a false construction of reality.

Whichever way we decide to "celebrate" these lives and their legacies, what is clear is this: they force us to make choices and to decide what we believe in and on which side we stand. But better yet, I say we think as Hitchens would have liked us to do and ask ourselves "is there really a side at all?"

Chalk one up for humanity in this week of reflection.

Holiday Gifts For That Special Lawyer On Your List

In effort to help those who are still struggling with gift giving ideas, I am re-posting (kind of like re-gifting!) a previous blog, from November 26, 2011, on holiday gift giving ideas for the lawyer and non-lawyer on your list. And for those who just can't click on another link, I have reproduced it below:

I am feeling in the holiday mood, despite the Black Friday antics in the USA. If you have a lawyer on your list or just someone special, here are a few suggestions:

1. Donate

Donations are my favourite way of saying "I love you!" and there are many places that need our financial support and help. You can donate as a "gift" to the organization or in honour of a loved one or even in memory of those whom you will miss over the holidays.

As a lawyer in Alberta, I like to donate to the Lawyers Assist program run by the Law Society of Alberta. This organization assists lawyers in need of help for a myriad of reasons such as substance abuse, depression, and the like. Another organization I support is the Legal Archives Society of Alberta. History is so important and is an ideal worth supporting. 

As a criminal lawyer, I support the John Howard Society. This worthy institution provides support for offenders and their families. For a female touch, the Elizabeth Fry Society also helps female offenders in need of guidance. The rehabilitative aspects of these organizations benefits all of society. 

As a lawyer who teaches human rights, I like to donate to Simon Weisenthal Centre, which promotes human rights and holocaust education. The Canadian Civil Liberties Association works hard at preserving and protecting our human rights and civil liberties. The number of cases in which they receive intervenor's status is astounding. A donation there is a big "thank you" to those who volunteer their time to ensure our freedoms are protected.

Personally, I also support the World Wildlife Fund and the Canadian Cancer Society. Buying one of those breast cancer wristbands, I spoke of in my "Keep A Breast" campaign blog would be another great gift. Finally, if you are a member of an ethnic group, as I am, donate to a worthy cause in your specific community

2. Gifts Which Say "I Believe In This Worthy Cause"

There are a number of gifts you can give a lawyer or really anyone who cares about an issue. Those breast cancer wristbands for instance. Another idea is a "banned books" bracelet from the American Library Association website. The bracelet, which also comes in a childrens' book version, is made of small stylized front covers of various banned books. My favourite banned book included in the item is "To Kill A Mockingbird," which I recently saw as a play and blogged about here.

If you want to get more radical, buy a T-shirt from Rosa Loves, a website dedicated to what we are dedicated to: they provide T-shirt messages with meaning and as a vehicle for raising awareness and funds. Once the goal has been met, the uniquely designed shirt is no longer available to give way for the next project. An example, is this cool T to raise money for Armonia, a Mexican organization which helps the rural community.

3. Legal Stuff

There is a lot of legal "stuff" out there. If you are channeling former Secretary of State Madeleine Albright, then you will love the "great seal" pin from the Supreme Court Historical Society shop. Or if your taste runs more Canadian, try the cuff links from the Parliament of Canada gift shop. I prefer something to jazz up my dashboard and the bobble-head President Lincoln fits the bill from the Abraham Lincoln Presidential Library and Museum. Although, those Lincoln Logs bring back memories. As a fun piece of trivia, Lincoln Logs were designed by John Lloyd Wright, the son of the famous architect.

4. Retro Gifts

Any lawyer would like a gift that harkens to the nostalgic past. The Star Wars: The Blueprints book would make a nice gift in that memory lane category. This spoof of my son's first baby book Good Night iPad would also be a nifty choice but do not buy Robert Munsch'sclassic Love You Forever, unless you want a good cry. The best retro gift has to be The Beatles Yellow Submarine action figures. Admittedly, I have a few in my basement, including the Blue Meanie.

5. What I Would Like

A T-shirt from the Imaginary Foundation. I love this website, with its mixture of science, art, design, and everything cool, the Imaginary Foundation makes me feel creative. Just check out these T-shirts and you can see why. I just bought my son this Kaku shirt. I also want the National Film Board's production of Blackfly, based on a song by Wade Hemsworth. You can watch it here. Be prepared, it's addictive. I would also like the book recently published on JRR Tolkein's original illustrations. Finally, I would like everyone to watch or re-watch Lord Bertrand Russell's message of tolerance so we can truly have peace on earth this holiday season.

By the way, I did receive the JRR Tolkein's original illustrations as a lovely Chanukah gift.Happy holidays everyone!

Testifying Behind The Veil: The Human Factor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

Testifying Behind The Veil: A Study In Conflicting Charter Rights

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

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

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

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

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

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

The Sixty Day Review: Occupy Canada and Impaired Driving Alberta

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

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

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

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

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

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

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

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

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

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

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

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

 

Follow Up Connections: Human Rights, Science, and Literature

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

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

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

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

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

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

Connecting With International Human Rights Day

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

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

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

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

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

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

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

This truly is the legacy of the Declaration.

 

The Power of Apologies

In two previous postings, It Never Hurts To Say You're Sorry and Is Saying Sorry Enough, I discussed the power of apologies from a child's first lesson in contrition to Bill Clinton's successful reincarnation as a two-term President. I also touched upon the codified version of apology, as remorse, in the Criminal Code the politicized collective apologies for large-scale human rights violations.

I revisit this issue with yesterday's 70th anniversary of the Japanese attack at Pearl Harbour and a Globe and Mail article entitled After Japan Says Sorry, A look At 5 Powerful Apologies In History. The article identifies these apologies under 5 headings with accompanying photographs. The first heading refers to the Holocaust with the 2008 visit of German Chancellor Angela Merkel to the Israeli Knesset or Parliament where she said:

"The Holocaust fills us with shame. I bow my head before the survivors and I bow my head before you in tribute to the fact that you were able to survive."

The speech did not go without controversy as some members of the Knesset boycotted the speech, which was given in German.

The next apology was from the UK Prime Minister Cameron to Northern Ireland for the 1972 Bloody Sunday Massacre. This 2010 apology, given after the release of the Saville Report into the massacre, called the action of UK military as "unjustified and unjustifiable." unfortunately, the hyperlinks to the report are now disabled.

The next collective apology is truly a global one:apologies to the indigineous peoples of Australia and Canada by the respective governments. As discussed in my previous blogs, the formal and public apology given to the Aboriginals of Canada by Stephen Harper was definitely Canada's most powerful, and long-awaited, apology. Certainly, this apology, even three years later, has continues with the inquiry of the Truth and Reconciliation Commission of Canada.

The next apology feels both too late and too premature: the Pope's apology on behalf of the Catholic Church for the widespread sexual and physical abuses of children as almost daily new allegations of coverups of the abuse surface.

The final apology listed is for Apartheid with De Klerk's 1993 admission, which fell short of a full apology. 

This brings us back to Pearl Harbour and Japan. Today, the Japanese government apologized for the mistreatment of Canadian prisoners of war during World War II. Canada's Veteran Affairs Minister, Steven Blaney, who attended the formal apology in Japan, eloquently reminds us of the power of an apology when he stated:

This important gesture is a crucial step in ongoing reconciliation and a significant milestone in the lives of all prisoners of war...It acknowledges their suffering while honouring their sacrifices and courage...Today's apology will help in healing as our two great countries move forward

Thus, the power of an apology holds the power to heal, either when uttered in the privacy of a relationship or when proclaimed in the highest political institutions, and this is the best reason to for saying "sorry."

Injunctions In The Charter Context: Part Two

Yesterday, I posted a brief backgrounder on injunctions and the special case which presents when the Charter provides the context. Today, I will discuss how courts apply the three step injunction test where the exercise of Charter rights results in disobedience of the a purportedly unconstitutional law. In those cases, the applicant for the injunction is the government, who according to case law, is the "protector of public rights and the public interest."

Step one: There must be a serious case to be tried. This step is typically easy to fulfill as most injunctions involve serious unresolved issues. Certainly, in the case of a Charter violation from the application and enforcement of laws, there is a serious matter to determine.

Step two: Is there irreparable harm caused if the application is refused? In the civil context, it is a question of monetary compensation, but in a Charter violation harm is difficult, if not impossible, to quantify. As a result, this step, is also easy to fulfill.

Step three: On a balance of convenience, which party suffers greater harm by the making of the order? In this step, the court considers the actual Charter harm or breach complained of by the claimants. However, case law also suggests deference must be given to the government's legislation, which necessitates obedience to its precepts until the constitutional validty is determined. Thus, it has been argued, that the court should be reluctant to refuse an injunction or order to conform with the law.

Some cases have refused to give such deference in a Charter case, particularly where constitutionality of the legislation is at issue and where fundamental rights, such as freedom of expression, are at risk. Indeed, it can be argued that both the government and the Charter claimants are acting within the public interest: the government in upholding law and the claimants for protecting fundamental rights important to all. 

Now that the three step injunction analysis in the Charter context is clarified, tomorrow, I will apply this test to the occupy movement.

 

 

Follow Up: The Name Brand Claim Game

As a follow up to my posting on brand name claims under the Food And Drug Act (FDA) found at Impression And Claim: Are They Both The Same?, a recent news article suggests that the Canadian Food Inspection Agency (CFIA) has stopped "indefinitely" the sampling program of products to ensure the label name is an accurate claim under the FDA.

This important enforcement regime of the Health Canada requirements undermines the effectiveness of labelling requirements, erodes consumer confidence in food products, and permits inaccurate and misleading label names to influence consumer choice.

Hmm. Do I see a possible s.7 Charter argument formulating here?

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

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

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

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

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

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

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

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

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

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

 

The Charter And The New Alberta Impaired Drivings Laws: Going Beyond Driving Is Privilege

Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, a Charter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS CommunityGosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights. Tomorrow, I will discuss other areas of legal concern, outside of the pure Charter arena.