This Takes Precedence! How the Bedford Case Empowers Legal Precedent

The Bedford case is interesting on many levels. On the public level, it recognizes the modern realities of what historically has been considered a vice in our society. On the private level, it recognizes the harshness of the prostitution laws on those whom the laws were meant to protect. On the Charter level, it recognizes the breadth of the principles of fundamental justice in our society while giving shape and meaning to the phrase “life, liberty and security of the person.” Finally, on the legal jurisprudence level, the case recognizes the importance of a flexible concept of case precedent.

In a previous posting, I discussed a judge’s use of legal and factual analogy to come to a decision in a case. The concept of legal precedent, whereby a decision is made based on previous similar decisions typically from a superior level of court, not only provides a solid basis for a decision, it also gives the decision an aura of authority and power. Power, in the sense of persuasive power.Authority, as in the correctness or soundness of the decision. It is a remarkable tool, which serves a dual purpose: the power and authority arising from precedent maintains the rule of law in the legal sphere and in the public sphere. Precedent, used appropriately, empowers the words of the court and gives them the force of the law. For further discussion on the coercive power of judicial pronouncements, see my postings here on Robert Cover and his seminal essay on “Violence and The Word.”

In Bedford, the majority needed to deal with the issue of legal precedent to lend their decision an air of legitimacy. The prostitution laws at issue had already been the subject of previous constitutional arguments before the highest level of court: the Supreme Court of Canada. To make pronouncements again and by a lower court seemed officious and redundant. In the case of the prostitution laws, the stakes were even higher as the laws were the second-generation iteration of what were originally known as the “soliciting laws.”

In the 1980s, after the advent of the Charter, the government was forced to change the soliciting laws as a result of the Supreme Court of Canada’s interpretation of the word “solicit” as found in the section. The original section prohibited “everyone who solicits any person in a public place for purposes of prostitution."

In the 1978 Hutt case, the Supreme Court of Canada defined “solicit” as pressing and persistent conduct. Hutt, a 23 year-old prostitute working on the infamous Davie Street in Vancouver, British Columbia, had made eye contact with a potential client driving slowly by her. Hutt smiled and the client, an undercover police officer, smiled back and stopped his car. Hutt jumped into the car, agreed on the cost of her services, and was promptly arrested. The SCC, by defining “soliciting,” found that a mere nod of a head was not enough to fulfill the actus reus or prohibited act requirements under the section. Soliciting required something more than just agreeing to sex for money. It required the prostitute to accost and importune, not just smile.

The result of the decision was explosive: the police refused to lay charges under the section. This public pressure caused the government to finally change the section in 1985 to the present day offence of communication for the purpose of prostitution under s. 213 of the Criminal Code. The meaning of “communication” is much broader than “solicits.” One can communicate through word or gesture and would most certainly describe Hutt’s contact with the undercover officer.

But that was not the end to the narrative. The new section, created in the new Charter era, was further scrutinized; not on the basis of nomenclature but on the basis of constitutionality. This was done preemptively through a reference to the Supreme Court of Canada. As discussed in previous posting, a reference permits the court to pre-vet an issue and to make pronouncements on the efficacy of legislation before it is enacted and subject to legal attack. In the Reference on the prostitution sections, the Court found the new communication for the purpose of prostitution laws were inconsistent with freedom of expression under s. 2(b0 of the Charter but were justified in a free and democratic society and thus appropriate.

Fast forward to today and the similarities are apparent. One of the arguments in the Bedford case, attacked the constitutionality of the very same communication section as previously considered by the SCC. In that instance, the Bedford decision sits solidly behind legal precedent by dismissing the argument as already decided by another, more authoritative court. The more interesting issue is the constitutionality of the other prostitution related charges: keeping a common bawdy house under s.210 and living off the avails under s.212(1)(j). It is here the court relied on a more flexible and contextual approach to legal precedent, while still upholding the concept of court hierarchy.

Two scenarios were discussed. One scenario contemplated the ability of a trial court or lower level court, to permit counsel to build a record of evidence, which would then form the foundation of a future argument before a higher and thus more authoritative court. This higher level court would be in the position to revisit the issue to determine if the passage of time has changed the issue to require a new and different look at the issues involved. The other scenario, contemplates situations where the issues to be argued may be related but are framed differently enough that a decision on the matter is not tied by the rules of legal precedent. This flexibility permitted the court in Bedford to come to a decision on the case and to tackle, head-on, the modern paradox found in the overly broad prostitution sections.

Although the passages on precedent are not the crux of the Bedford case, the court’s view of the issue brings or shall we say, drags, traditional legal principles into the 21st century and beyond.



The Result In Canada (Attorney General) v. Bedford

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

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

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

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

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

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


War Crimes: Canadian and International Milestones

With the announcement on March 14, 2012 of the first verdict by the UN sponsored International Criminal Court (ICC), it seems fitting to look back at the first prosecution in 1989, R.v. Imre Finta, in Canada under the then new federal Crimes Against Humanity and War Crimes Act. Imre Finta, originally from Hungary and, as a Hungarian police captain, deported thousands of Jews to the death camp Auschwitz in World War II, was the first individual charged under the Act in 1988. Finta, at the time of his arrest, was a retired restaurant owner living in Toronto. 

The Act was conceived as a result of the Deschenes Commission, which was struck in 1985 to inquire into the presence of war criminals in Canada and to provide recommendations on how Canadian laws should respond. At the time of the Commission, Canada’s immigration laws and policies were not stringent enough to keep war criminals from immigrating to Canada. Indeed in 1962, Josef Mengele, or as infamously known as the “Angel of Death,” had applied to immigrate to Canada even though his identity was well known to government officials. Although, Mengele did not in fact enter Canada, it was clear such entrance would have been possible considering the laxity of Canadian laws. It was equally clear at the time of the Commission, there were in Canada at the time of the Commission alleged war criminals from the World War II era.

The final Commission report was tabled before parliament by then Justice Minister, Ray Hnatyshyn, after examining over 800 cases of alleged war criminals in Canada. Although the Commissioner, Justice Jules Deschenes of the Quebec Court of Appeal and formally the Chief Justice of the Quebec Superior Court, recommended some individuals be deported from Canada, he also recommended ways in which the alleged war criminals could be prosecuted in Canada for their crimes. His proposed recommendations, including changes to the Criminal Code to permit such prosecution, culminated in the Crimes Against Humanity and War Crimes Act in 1987.

Interestingly, Justice Deschenes was appointed in 1993 as one of the first Judges elected by the United Nations General Assembly to serve at the United Nations International Criminal Tribunal for the former Yugoslavia, the precursor to the present day International Criminal Court, mentioned at the beginning of this posting.

With the arrest of Imre Finta on various Criminal Code charges such as robbery, manslaughter, and kidnapping the Commission’s recommendations appeared to be finally showing results. The trial commenced before Mr. Justice Campbell and a jury with evidence of Holocaust victims from all over the world. Ultimately, Finta was acquitted after six months of trial. The Crown appealed to the Court of Appeal for Ontario, with five Justices hearing the case, including Chief Justice Charles Dubin.

Typically only three Justices sit on an appeal case but five justices are assigned when it is a matter of great national importance such as when the constitutionality of a piece of federal legislation is at issue. For example, five Justices of the Court of Appeal for Ontario heard the Bedford appeal on the constitutionality of some of Canada’s prostitution laws. The judgment is to be released on March 26, 2012. A five member panel may also be required when new legislation needs judicial interpretation or in the case of a legislative reference (see my prior posting on References) or when the appeal involves issues decided by a previous Court with a request to review that prior decision. An example from outside of the criminal law is the recent five panel Ontario appeal decision on summary judgment motions.

In the case of Finta, the Court struggled with two issues of national importance involving both Charter rights and substantive issues. The Charter arguments were dismissed. In terms of substantive issues, the Court needed to determine the appropriate implementation and use of the new war crime legislation, particularly how a trial judge must instruct himself or a jury on the correct legal requirements of such a charge in the context of criminal law principles. Finta was charged with easily identifiable Criminal Code charges, but was so charged in the context of war crimes committed years earlier in another country. It was this further layer of complexity, which required a panel of five Justices to consider the issues involved.

The Court of Appeal for Ontario came to a split decision on the application of the Act. The majority decision written by Justices Doherty, Osborne, and Arbour dismissed the Crown appeal against acquittal, finding no substantial wrong or miscarriage of justice at trial. The dissent, written by Chief Justice Dubin and concurred in by Justice Tarnopolsky. The dissent was chiefly concerned with the requisite elements of war crimes and their opinion that the trial judge erred in instructing the jury on the legal aspects of those essentials. Thus, the acquittal was upheld, as there was no palpable error of law and without resort to the constitutionality of the legislation.

As an aside, here too we have some interesting connections to international criminal law and human rights. Justice Walter Tarnopolsky had a strong background in human rights and civil liberties as an academic and law professor. Just prior to his appointment to the Court of Appeal, he was a member of the United Nations Human Rights committee. Justice Doherty as a previous Crown Attorney in the appeals division was very well versed in criminal prosecutions. I have spoken of Justice Doherty in a previous posting. Of course, Madame Justice Arbour went on to become Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia, the very same organization to which Justice Deschenes was connected. She sat on the Supreme Court of Canada as well but after the SCC Finta decision. Most notably, she later served as the United Nations High Commissioner for Human Rights. I have written about Justice Arbour in a previous posting.

The case was further appealed to the Supreme Court of Canada, with similar results. Only seven justices heard the matter, rather than the full quorum of nine. The majority decision written by Justice Cory, upheld the acquittals and dismissed the appeal and the constitutional questions. The majority (a slim majority as 4 justices dismissed the appeal, while three justices would have allowed it) confirmed the substantive charges under the Criminal Code must be proven in conjunction with the additional proof of the essential elements of a crime against humanity as defined by the Act. Thus, as both the substantive offence and the war crime must be proven beyond a reasonable doubt, Finta was properly acquitted as the Crown failed to prove the requisite elements of both offences.

This decision raised the bar in terms of the ability to prove such offences, making such prosecutions extremely difficult for the Crown. The result was fewer prosecutions (many of which were unsuccessful), more extraditions, and even more deportations under the much easier to use immigration legislation. Therefore, the first verdict under the auspices of the ICC is a welcome and much needed addition to the global fight against international crimes. It is hoped Canada will support the efforts of the ICC, while still remaining vigilant in its own efforts to prosecute war criminals.


The Omnibus Crime Bill Passed By the House of Commons

After a few minor adjustments, the Omnibus Crime Bill C-10, also know formally as An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, or informally by the short title Safe Streets and Communities Act, was passed by the House of Commons today in a final vote of 154 for the legislation and 129 against the Bill. Although the Act merely awaits Royal Assent to become law, it is still worthwhile to critically revisit the myriad of problems arising from the enactment of the new law. With that in mind, I have recommend reading the following:

1. The Canadian Bar Association - 10 reasons for opposing Bill C-10

2. The Canadian Council of Criminal Defence Lawyers on the negative impact of the new legislation on those offenders suffering from mental illness

3. First Nations concerns that Bill C-10 fails to address the issue of "over-incarceration" of Aboriginals. See also the submissions to parliament on behalf of the Assembly of First Nations and see the petition to the Senate to oppose the Bill on the Nishnawbe-Aski Legal Services website.

4. The Canadian Civil Liberties Association 

5. My previous blog on the issue from October 15, 2011: When Does One Marijuana Plant Plus One Shared Joint Equal Nine Months  Incarceration?

Crime And Punishment: “Changing Lives Through Literature”

Judge Willmore of the 1st District Court in Logan, Utah may just have the right idea: impose a meaningful sentence on offenders, which will positively impact their lives and give them an incentive to make the right choices in the future. Judge Willmore does this through rehabilitation through education, when he requires offenders to read and, on occasion write a report on, Victor Hugo’s Les Misérables as part of their sentences.

Les Misérables, Hugo’s tour de force exposes the societal ills of 19th century France through an intertwining story of lost youth and redemption. It is a story of hope for those who have done wrong in the past and an example of how acts of kindness can turn evil into good. An excellent read for those in trouble and who want to turn their lives around.

Such alternative sentencing options are unusual in a system that prefers deterrence to rehabilitation, yet the idea of using literature to rehabilitate is not a “novel” idea. In Massachusetts, for example, a Judge has the ability to sentence an offender to a special program called “Changing Lives Through Literature.” To be eligible, the offender must consent and must not be a sex offender or convicted of murder. Once ordered to this “treatment by books,” the offender must attend a three-month course, taught by a College level professor, wherein they read up to 6 novels. After completion of the course, the offender discusses the novels with the Judge, the Professor, and the other offenders who are participants. By all accounts, the program has been successful and has peaked the interest of other Districts across the United States. Although, I have found reference to the program starting in Canada, I have not been able to confirm this.

The idea of rehabilitative self-improvement has been used beyond the courtroom as well. The “Books Through Bars” program in California sends “quality reading material to prisoners and encourage creative dialogue on the criminal justice system, thereby educating those living inside and outside of prison walls.” The program itself has expanded to provide publication opportunities to prisoners, prison libraries, and other educative forums.

The Canadian justice system would benefit from such forays into literature as rehabilitation. Certainly the sentencing regime found in the Youth Criminal Justice Act could provide a platform for such unique sentencing programs. Clearly, education goes hand in hand with self-worth, which many offenders are lacking. The therapeutic effects of a “good read” should not be underestimated and need to be explored in an era where traditional sentencing practices seem an incongruous fit with today’s society. Perhaps it will be only a matter of time and, of course funding, before we see the positive effects of “doing time” through reading but in the meantime, read Les Misérables for yourself and enjoy the educative effects of good literature.

Reading The Riot Act

Riots or violent disturbances of the peace are part of the human psyche. As early as 44 B.C., when the Roman mobs attacked the houses of Brutus and Cassius in an angry response to the untimely death of Julius Caesar on the Ides of March, the world has since experienced riots in every era. Riots occur for a multitude of reasons: from student protest as in the 1229 University of Paris students’ strike to revolution as in the Boston Tea Party of 1773 and from the various race riots in the United States throughout the 1900’s to the obscure reason of advant-garde music, when in 1913 the audience in the Paris Théâtre des Champs-Élysées listening to the debut of Stravinsky’s Rite of Spring ballet broke out in a violent booing frenzy. There have been riots over various alcoholic beverages as in the London Gin Riots of 1743 or the Beer Riots in Bavaria in 1844 or then only ten years later, the Portland Rum Riot. Sadly, I missed the Champagne Riot in 1911 France. However, increasingly, riots are not about protest but about a lack of sportsmanship or too much sportsmanship as in the case of the recent hockey related riots in Canada.

The Stanley Cup Riots, and I use the plural as there has been more than one (two in Vancouver, five in Montreal, one in Edmonton during playoffs), have been particularly egregious, costing the municipalities millions of dollars in damaged property and even millions more in prosecuting and punishing the participants. The Nika Riot of AD 532 might have been the first sports related riot, happening in the Hippodrome at Constantinople, then the centre of the remaining Roman Empire in the East. The two factions, Blue and Green, were supporting their chosen chariot race teams when both sides demanded the city release Blue and Green prisoners, who had been arrested, earlier, for disturbing the peace. In a moment, this sporting event became political and over the next few days a not unfamiliar scene played out as the Emperor Justinian first apologized and, when the mob was still not pacified, then slaughtered thirty thousand Blue and Greens in the Hippodrome. Ironically, it was Justinian who codified all Imperial laws into the Codex. See my previous posting on the codification of our criminal laws into the Criminal Code.

Although we no longer “read the riot act,” as they no doubt did in 18th Century England when the Riot Act was first enacted, our criminal law does prohibit “unlawful assemblies and riots” under the Criminal Code. The 1715 Riot Act gave a Justice of the Peace or another person so authorized to disperse “groups of twelve people or more being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace” upon proclaiming:

Our sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.

If the crowd did not disperse within an hour of this proclamation, the authorities had the right to “seize and apprehend” the rabble-rousers who would be subject to the death penalty.

Although the Riot Act was finally repealed in 1973, the Canadian offences of unlawful assembly and riot, under sections 63 and 64 of the Criminal Code respectively, are a distant reminder of the original crime. Instead of twelve people “unlawfully, riotously, and tumultuously” assembled, the Canadian counterpart, unlawful assembly under s. 63, requires 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.

Similarly, section 64, defines the offence of riot as an unlawful assembly, presumably as per s.63, “that has begun to disturb the peace tumultuously.” Therefore, an unlawful assembly is about to become a riot, although not quite there, while a riot is exactly that: a full-blown tumultuous affair.

The defining term for these offences, in both the Criminal Code offence and the 1715 original crime, is the word “tumultuously.” To understand the meaning of this word, which is not defined in the Criminal Code, case law is needed. In the Berntt case, arising from the first Vancouver Stanley Cup Riot in 1994, at issue was the clarity of the meaning of the word “tumultuously” as found in s.64.

Defence argued the term was vague and therefore did not provide a clear understanding of the essential requirements of the crime. Without such clarity, defence argued, the accused’s ability to make full answer and defence was compromised. To try an individual on the basis of a vague law and, therefore, to potentially deprive the individual of his or her liberty if convicted would be contrary to the principles of fundamental justice under s.7 of the Charter.

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 and Justice Gonthier’s comments on the importance of limits, provided by clear language, which delineate our laws and permit legal debate. However, language provides boundaries only and are mere guidelines as stated by Justice Gonthier in the following passage:

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 court found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly,” which 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 old England and the Riot Act.

Thus, as they say, what goes around comes around and what was once a crime is still a crime. 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 and bon ami.

Sadly, as a coda to this posting, 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 of the crowd, 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. 

Let’s Talk About: Diplomatic Immunity

In a previous posting, I discussed spying in Canada with reference to the newest case involving Jeffery Delisle; a Canadian Naval officer charged with both Criminal Code and Security of Information Act offences for allegedly disclosing state secrets to a foreign entity. Mr. Delisle is in custody awaiting a bail hearing, which is now scheduled for February 28, 2012. In the wake of the scandal, is the increasingly number of Russian diplomats leaving the country, as two more have left, bringing the total to six embassy workers whose “contracts” have not been “renewed.”

These hasty departures bring to mind the issue of diplomatic immunity, a generic term used to describe the governmental policy of extending legal immunity to foreign diplomats residing in the host country. Such protection ensures that diplomats do not face criminal prosecution or civil liability under the host state’s legal system. Instead, the host country can “expel” the rule-breaking diplomat from the country.

This special form of immunity comes from the Vienna Convention on Diplomatic Relations (1961), which Canada ratified in 1966 and implements through the Foreign Missions and International Organizations Act. The purpose behind diplomatic immunity, which initially arose hundreds of years ago through custom and practice, is to ensure diplomats can freely and independently execute their duties to their country without undue influence from the host nation. The key to such a policy is reciprocity and certainly Canadian diplomats in foreign countries enjoy the privileges and benefits of diplomatic immunity.

The result is less than salutary for the host country, as diplomats are people and, as such, break rules, as people are wont to do. The difficulty is when the rule breaking amounts to a criminal offence. If the crime is deemed serious enough, the diplomat’s home country may waive immunity and the culprit can be brought to justice in the visiting state. Typically, this happens when the incident is outside of the diplomatic duties. Thus, in the Delisle case, if any diplomats in Canada were involved in the breaches of security, they would be protected by diplomatic immunity. The only recourse would be expulsion or, perhaps, a non-renewal of their “contracts.”

There is another point to keep in mind: a waiver of diplomatic immunity can only be done by the country and not by the individual involved. The diplomat has no authority or decision-making power on the issue of waiver. If the home country, for whatever reason, determines the diplomat must face the music, so to speak, in the foreign country, then the diplomat will face prosecution there. Alternately, the home country can recall the diplomat and prosecute the diplomat at home.

This was the case with Andrey Knyazev, the first secretary of the Russian Embassy in Canada, who in 2001 drove onto a sidewalk in Ottawa, killing prominent lawyer Catherine MacLean. According to the police reports, Knyazev was so drunk at the time; he could barely walk or speak. The then Russian ambassador to Canada, Vitaly Churkin, refused to waive diplomatic immunity in the case, opting instead to try the offender in Russia. Churkin is presently the Russian envoy to the United Nations.

In 2002, Knyazev was tried in Russia for involuntary manslaughter while impaired. The maximum sentence for the offence was five years imprisonment as opposed to a maximum sentence of life imprisonment in Canada. The outcome of the case was uncertain as Knyazev, citing his diplomatic immunity, refused to provide a Breathalyzer sample. Although an Ottawa police officer, who first arrived on the scene, testified, witnesses to the actual incident were lacking.

According to Knyazev’s evidence at trial, he was not drunk, he feared entrapment by the police, the driving conditions were poor, and MacLean was walking on the street. However, the Russian prosecutor presented Canadian police records that showed Knyazev had been involved in a total of four traffic accidents over a two-year period and was intoxicated in two of the incidents. Due to diplomatic immunity, Knyazev had not been charged for those previous events.

Knyazev was ultimately convicted and was sentenced to four years imprisonment. Knyazev appealed sentence and pleaded for a suspended sentence. The appeals court rejected the argument and Knyazev was sent to a Siberian Penal Colony to serve his sentence.

In the aftermath of the case, Canada implemented in 2001 a zero tolerance toward diplomatic impaired driving. According to the Foreign Affairs website, the revised policy is as follows:

The policy provides that diplomats will lose their driving privileges for a first instance of impaired driving. The loss of privilege will occur on the basis of a police report substantiating that a diplomat was driving while impaired. The Department encourages police forces to lay charges for impaired driving, but will take action regardless of whether charges are laid. In most cases, the driving privileges will be suspended for one year. 

In the case of a second instance of impaired driving, or a first offence involving death or injury, the policy provides for the diplomat to be recalled or expelled. … Since Canada cannot directly sanction diplomats under these international rules, the loss of driving privileges will be effected following a waiver of immunity by the diplomat's state or, alternatively, through a written undertaking by the Head of Mission pledging that the diplomat will not drive. Should a state refuse to exercise either of these options, the Department will request that the diplomat be recalled or will expel him or her.

Consistent with this policy, in 2005, three diplomats in Ottawa were investigated for impaired driving and received driving suspensions. The diplomats’ names were not released.

Despite the nomenclature attached to this revised policy, one of zero tolerance, diplomats do not face the full force of Canadian law and are subject only to driving suspensions. Certainly, this “punishment” is minimal compared to the stigma and deterrence of a criminal trial, conviction, and sentence.

It appears the government’s “let’s get tough with diplomats” stance is superficial at best. Even with the revised policy, diplomats commit offences in Canada and simply leave the country, never to return or face justice. Although the policy reasons behind such immunity are reasonable, one wonders if there is a better way to ensure diplomatic independence without sacrificing public safety. Considering our core values, which require acceptance of responsibility and consequences to those who choose to breach criminal laws, diplomatic immunity should be re-visited and revised to bring this ancient custom into the 21st century.  

The Goudge Report And Expert Evidence

I had the pleasure of attending a top-notch legal seminar at the Alberta Law Conference organized by the Canadian Bar Association on Evidence and Advocacy. Madam Justice SheilahMartin moderated the main panel discussion, presented as a joint session for all practitioners in family, criminal, and civil law including members of the judiciary, with Mr. Justice Goudge of the Ontario Court of Appeal and Toronto criminal lawyer, Mark Sandler as keynote speakers. The presentation was excellent and was about excellence as the title of the panel suggested: Recommitting to Excellent Expert Evidence.

The basis of the discussion was the 2008 Goudge Report on the Inquiry Into Pediatric Forensic Pathology in Ontario and the recommendations contained therein for the just and appropriate use of expert evidence in the criminal justice system. The Inquiry was struck after systemic frailties surfaced in pediatric forensic pathology in Ontario, which was marked by the flawed and inadequate methodology used by the primary pathologist in the field: Dr. Charles Smith. These flaws were exacerbated by a system, which unquestionably supported and approved of Dr. Smith’s role as an expert. The result was devastating as loving parents and devoted caregivers were wrongly convicted of killing the children they loved.

In one such case, called Amber’s Case after the child who died, the young neighbourhood babysitter was accused of shaking Amber to death. The teen insisted the child fell down a set of stairs but Dr. Smith, in his “expert” opinion, adamantly maintained the teen’s scenario was impossible. The teenager was ultimately acquitted after the Trial Judge found serious flaws in the expert evidence. Flaws, which remained uncorrected in future cases. Amazingly, the exonerated teen went on to become a Crown Attorney. This is a perfect example of the human ability to triumphantly overcome even the greatest adversity.

There were a number of factors contributing to these “unassailable” convictions. For one, Dr. Smith considered himself a Crown witness who was committed to the ultimate goal of conviction. Oftentimes, he was permitted to give evidence in areas outside of his knowledge and expertise. Much of his opinion was not based on scientific evidence but was merely anecdotal. Furthermore, his reputation was so fixed that even defence lawyers were reticent to challenge his position.

All of these factors came together in a system, which favoured the admissibility of forensic evidence from accepted experts without inquiring into the actual foundation of the opinion. There was no question of how Smith came to his opinion. There was no inquiry into the absence of quality control or peer review of his conclusions. Reliability and accuracy were presumed once the Crown established his expertise. Such expertise was easily established based upon Smith’s position as Director of the Ontario Pediatric Forensic Pathology Unit at the prestigious Hospital For Sick Kids in Toronto. The admissibility of his evidence was guaranteed based upon the innumerable times he was accepted as an expert at trial. As a result, conviction was also virtually guaranteed.

There are many lessons to be learned both systemically, in terms of the role of the criminal justice system, and individually, in terms of the specific functions of the participants in that system. Justice Goudge counseled increased vigilance from all participants: be it the “gatekeepers” function of the Trial Judge or the vital role of defence counsel in understanding and applying the evidentiary rules. Cases such as the Supreme Court of Canada decision in Mohan and the Ontario Court of Appeal (leave to SCC refused) in Abbey, which set out the test to be applied in accepting expert evidence, must be required reading when dealing with any kind of expert evidence. There must be no fear in dealing with experts and no broad based acceptance of their expertise when a life is in jeopardy. Where an expert’s evidence is concerned, only evidence-based opinion should be admitted if an accused is truly to be tried in accordance with our fundamental values of fairness, impartiality, and justice.

Sadly, even with the knowledge of the past, the system is still open to failure. Yesterday, the Texas Court of Criminal Appeals set aside a murder conviction, which was based on faulty forensic opinion evidence. The frailties of the evidence had been uncovered by investigative reporting. The accused had been serving a 60-year prison sentence.

Hopefully, the implementation of the safeguards as outlined in this posting, and in the other recommendations found in the Goudge Report, will prevent any recurrence of these injustices and will provide, instead, a mechanism for a fair trial.

Why Is This Still A Crime? Crime Comics and the Criminal Code

Today, in my criminal law class, we discussed what is a “crime.” We defined “crime” as any form of human behaviour designated by lawmakers as criminal and subject to penal sanctions.” This definition of crime is both narrow and broad: broad as any form of behaviour can be considered a crime, yet narrow as it is only those behaviours so designated by the law makers, which are considered crimes.

Let’s look at that premise more closely. Any behaviour, so designated, can be a crime. For example, opium was legal until the turn of the century when the 1908 Opium Act was enacted. On the other hand, coffee is legally consumed in Canada but was historically subject to bans and restrictions in many countries such as Turkey and pre-Revolutionary France.

Furthermore, no matter how morally repugnant certain behaviour may be, the conduct is only criminal if so designated. In other words, it is not a crime unless our government says so. Clearly then, criminal law is fluid: it changes over time in accordance with  society’s fundamental values.

And yet, there are crimes still found in our Criminal Code, which do not resonate with today’s values and leave us to wonder why the behaviour is still designated as criminal. Section 163(1)(b), which makes it illegal for anyone to make, print, publish, distribute, or sell a “crime comic,” is a case in point.

A crime comic, as defined under s.163(7), is a “magazine, periodical, or book that exclusively or substantially comprises matter depicting pictorially” the commission of crimes, either real or fictitious, or any events leading to the commission of a real or fictitious crime. Thus a crime comic, deemed illegal under the Criminal Code, can easily be that super hero comic book purchased at the corner store or that cool graphic novel on Louis Riel.

Where did this crime come from? In this instance, we can blame the United States. In the 1940s a genre of comic books known as “crime comics” appeared. In truth, some of the comics were in “bad taste” depicting gory scenes of violence, however, the bulk of the comics were inevitably the triumph of good over evil. Either way, the books did not, as suggested by the Senate Subcommittee on Juvenile Delinquency, promote or contribute to the commission of crimes by juveniles.

In fact, despite the very public contention of American psychologist Dr. Fredric Wertham that the crime comic books were connected to the increase in juvenile crimes, there was no scientific basis for this position. Unfortunately, by the time the true facts were exposed, the issue had become so political the government was moved to regulate the comic book industry. In Canada, the result was even more significant as the Criminal Code was amended in 1949 to add crime comics as an offence “tending to corrupt morals.”

In the 1950s, the offence was tested by a group of comic book vendors in Manitoba. Mr. Roher, the chosen offender, was convicted of selling a crime comic, specifically “No. 62, April, Dick Tracy.” The cover of the comic book is particularly gruesome as it depicts Dick Tracy floating in the water, near death, while a once masked villain shoots at him. Definitely a crime is being committed but we all know, Dick Tracy, the crime fighter will prevail. He even says so in the corner of the cover as he studies his radio watch, which cries out: "calling all crime stoppers." This fact, however, was meaningless in the eyes of the law as Mr. Roher was convicted of selling this crime comic.

In upholding the conviction in 1953, Chief Justice McPherson describes, in detail, the “bloodthirsty” events illustrated in the comic. According to McPherson C. J., “the legislature wished to enact laws to protect the children of this country from the evil effects of being subjected to publications dealing with crime.”

The Chief Justice also considered the defence available under the section, which is still preserved in the present day offence, known as the defence of the “public good” whereby:

No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

In dismissing comics as serving the public good, the Chief Justice commented on the defence as follows:

The only defence under this section I have ever heard suggested is that by reading these publications the child acquires a desire to read. To me it is a strange basis upon which to start child education and, logically considered, could be quite easily adapted to other phases of training; for instance, by starting children on "home-brew" they might become connoisseurs of fine liquors and whisky and eventually experiment with a drink of milk!

Clearly, the Chief Justice was not a fan of the funnies! Or was he really just a man of his times, immersed in the hysteria of the moment and in tune with the public fear caused by the increase in juvenile crimes? This may explain why the conviction was upheld and why the crime found its way into the Criminal Code, but it does not explain why this crime is still part of our criminal law.

Perhaps we could imagine an inappropriate comic, aimed at children, which we would not want published and sold but do we need the criminal law to regulate that scenario? Furthermore, as the section now reads, appropriate material could be subject to the offence, despite the defence of public good, such as the graphic novel by Chester Brown on Louis Riel or the Fantastic Four.

So, why this is still a crime is a valid question to ask and a valid question to keep asking as society changes and our laws do not. By questioning and asking “why,” we are ensuring that our laws reflect who we are as a society and if they do not, then it is incumbent upon our law makers to provide an acceptable answer.


Required Reading For the Criminal Lawyer

The following five classic books should be required reading for any criminal lawyer or anyone simply interested in understanding the reason behind fundamental criminal law principles:

  1. Rethinking Criminal Law by George P. Fletcher. Although written in 1978, this book by George P. Fletcher, a prolific and thoughtful legal scholar and now Chair of Jurisprudence at Columbia Law School, is still a relevant and fascinating journey through the landscape of criminal theory. From his first chapter entitled The Topology of Theft to his last on The Theory of Justification and Excuse, Fletcher covers the wide and varied spectrum of criminal offences and defences through elegant, yet colourful, language. Throughout, he questions the reasons behind traditional common law precepts and lends a decidedly American dimension to criminal law principles.

  2. Punishment and Responsibility by H.L.A. Hart. What Fletcher is to American criminal jurisprudence, Hart, who was a professor of Jurisprudence at Oxford University, is to English criminal law, and then some. Hart, a legal positivist, expounded his legal philosophy in a series of books written in the sixties, his most famous being The Concept of Law in 1961. It is, however, his volume of essays in legal philosophy compiled in Punishment and Responsibility from 1968, which I have read and re-read since my first days in law school. Hart is definitely not for the “faint-hearted” as he extends and refines the theories of John Austin and Jeremy Bentham. Both John Rawls and Ronald Dworkin, also “giants” of legal philosophy, were past students of Hart’s and greatly influenced by him. Indeed, the “Hart-Dworkin” debate on the efficacy of legal positivism is legend in the annals of legal philosophy.

  3. The Limits of the Criminal Sanction by Herbert Packer. Another American legal scholar, Packer coined the present-day models of criminal process: the “crime-control” model, which emphasizes the efficient apprehension and punishment of criminals in order to protect the law-abiding citizen and the “due process” model, which protects the rights of the accused through a fair and just criminal process. In this 1968 book, Packer extends his models and discusses the role of punishment or sanction in our criminal law. He speaks of both traditional modes of sanctioning and the ability for these methods to deter crime. As well, he offers alternative methods. Interesting to note that some 40 years later, we are still struggling with the same issues.

  4. Narrative, Violence, and the Law: The Essays of Robert Cover. Although not a complete book written by Robert Cover, but a compilation of his works, the essays found within the covers are some of most mind-bending legal works I have read. Robert Cover, whom I discussed in a previous posting, was, in his short lifetime, a profoundly creative legal thinker, whose writings force the reader to think of traditional issues in a startling new way. I highly recommend Cover’s essay entitled Violence and the Word.

  5. Criminal Law: The Meaning of Guilt: Strict Liability, Working Paper No. 2 1974, Limits of Criminal Law: Obscenity: A Test Case, Working Paper No. 10, 1975, Criminal Responsibility for Group Action, Working Paper No. 16, 1976 – all by the LRCC. In the early to mid-1970s, Antonio Lamer, who later became Chief Justice of the Supreme Court of Canada, was the Vice-Chairman and then Chairman of the Law Reform Commission of Canada (LRCC). During his sojourn as head of the organization, the LRCC produced a number of excellent Working Papers on criminal law generally but more specifically, on the issue of criminal liability. Three, in particular stand out, and are a must read for anyone interested in the fault element of crime or criminal intention. They are written in a very clear manner as they were intended for public consumption. The actual 1976 Parlimentary Report is entitled Our Criminal Law.

Public Disasters and the Criminal Law

The tragic and unfortunate Costa cruise ship disaster is a good example of how popular social activities, which are inherently legal and legitimate, can turn, on a dime, into a textbook criminal case. It is no surprise the Captain of the ill-fated ship is being investigated for a number of offences, including manslaughter. Indeed, after reading the victims’ accounts of the disaster, it should be expected. But caution is required when demanding “justice” for public disasters through the aegis of the criminal law.

Usually, government uses regulation to control legitimate and desirable activities, which if carried out improperly or without due care, would result in harm to individuals or the public at large. Any breach of regulation may result in a charge under the statute, which is then known as a public welfare offence. Thus, our local dry cleaner, which provides us with clean shirts and starched collars, must conform to government rules regarding the safe and proper use and disposal of chemicals.

When the failure to fulfill regulatory requirements is significantly outside of the public welfare scheme, the conduct becomes criminal and must be framed by the Criminal Code. When the Exxon Valdez struck a reef in 1989 and spilled 11 million gallons of crude oil into the Alaskan waters, the criminal law was invoked. In 2000, the Walkerton tainted water scandal, which left seven people dead and scores ill from e-coli­ bacterial ingestion, resulted in criminal charges of public endangerment, fraud, and breach of public trust against the two town managers. So too, when the British Columbian Ferry, Queen of the North, ran aground in 2006 causing both an environmental and social disaster (2 people died), the navigation officer, who had control of the ship at the time, was charged with criminal negligence causing death.

However, when these public welfare matters are criminalized, they are treated like any other criminal case. The conduct, which initially arose from legal activities, becomes part of the criminal law nomenclature as it is labeled as manslaughter, criminal negligence, or even murder. By labeling and identifying this conduct as criminal, the matter leaves the public opinion arena and enters a legal one where the case must adhere strictly to all relevant legal principles. Consequently, what appears to be an open and shut case of manslaughter may, in a courtroom, deteriorate into a plea to a lesser charge or even an acquittal.

Not only are legal requirements at issue in such a case, but other factors may impact the prosecution’s ability to prove a case beyond a reasonable doubt such as the credibility of witnesses, the conduct of the police, and the availability of institutional resources.  Admittedly, these factors are present when dealing with any criminal case, but when dealing with a public welfare crime, it is very difficult to prove the essential fault element or required criminal intention, which typically deals with a failure of a person to act in accordance with a required standard of care.

In a public welfare case the alleged offender is under a duty or standard of care, which would require him to fulfill his duties and responsibilities with all due care and attention. For a Crown to establish a failure of care, to the criminal standard needed for conviction would require evidence relating to the standard of care and a detailed examination of what those duties and responsibilities are in the circumstances.  Prosecutors would need to delve into corporate culture and industry standards. As a result, such trials can be lengthy and complicated with unsatisfying results.

That explains why the Exxon Valdez’s Captain, charged originally with criminal mischief, operating the Exxon Valdez while intoxicated, and reckless endangerment, and a misdemeanor charge of negligently discharging oil, was only convicted of the misdemeanor and was sentenced to $50,000 restitution order and 1000 hours of community service. It also explains why the town managers in the Walkerton case pleaded guilty to the lesser offence of common nuisance with one accused receiving a conditional sentence of nine moths and the other, a one-year jail term. Finally, it explains why the BC ferry navigator, Karl Lilgert, has yet to be tried on his charges, although the incident occurred in 2006. Lilgert’s preliminary hearing was heard in May 2011 and he is now in the Supreme Court system as he awaits a jury trial.

So, for those awaiting a speedy outcome from the Costa tragedy, or indeed, any other public disaster, they will be disappointed. For the few who actually stick with the case to the bitter end, the result may be even more socially disconcerting. All of this may lead us to wonder if our criminal law can appropriately respond to crimes of such epic proportions and make us re-consider if it even really should in the first place. The problem is: what’s the alternative?


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.

The Art of Taking (And Giving) Art

This morning a crime was committed in Greece. It was a theft, which by Canadian standards is not a shocking crime. Nonetheless, the incident made international headlines. Why the notoriety? The theft was no run of the mill affair, but a sophisticated art theft from the National Art Gallery in Athens. Three paintings, of immense historical and intrinsic value, were taken: Female Head painted by Pablo Picasso and donated by him in commemoration of Greece’s role in World War II, Piet Mondrian’s Mill, and a 16th century sketch by Caccia.

The theft was reminiscent of many such art heists, such as the 1911 taking of the Mona Lisa from the Louvre and the infamous September 4, 1972 theft of 18 paintings and other artifacts from the Montreal Museum of Fine Arts. Although the recovery of such stolen art is low, the Mona Lisa was returned two years after the fact. Sadly, only one of the 128 paintings taken from the Montreal museum has been recovered to date. It seems that at least in the Art world, crime does pay.

Theft for profit is one matter but objects taken during wartime is another matter of concern. The recovery of art works plundered by the Nazis is still ongoing. George Clooney is presently working on a dramatization of the Monuments Men, a group of art experts who assisted in locating and identifying stolen artwork found by the Allied operation after the end of the war.

Such recoveries can be complicated by the difficulty in tracing the art back to the original owners. Even if the artwork is traceable, many of the new owners dispute the return on the basis they purchased the art in good faith without knowledge the item was stolen. The result is lengthy litigation oftentimes involving numerous parties in an array of international courts. 

In 1998, The Unites States government together with the United States Memorial Holocaust Museum sponsored an international conference on Holocaust-era assets. The conference heard from a number of scholars working in the area of stolen artifacts and art resulting in the creation of guidelines to assist in the return of the objects. The United States created a searchable database to assist museums in detecting the stolen items. However, a recent follow-up study has shown slow progress in identifying the suspect objects.

There are times, however, when art can be “legally” taken as in the case of an Australian hotelier who, as part of a grand marketing scheme, is counting on their guests to commit, well, grand larceny. This “contest” allows any registered guest, who can successfully steal the Banksy art piece from the hotel wall, can keep it.

Bansky, of course, turns the question of art theft on its head when in 2004, he went into the Louvre and hung his version of the Mona Lisa. Which leaves us to ponder this question: is it illegal to bring your own art into an art museum or is it just another form of philanthropy?

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.

Let's Talk About: The Word "Crime"

What's in a name? A name is a label or a representation of an object, which through usage and custom, is accepted by society and then becomes identified with the object. The name gives us a familiar reference point which we can then use in discussing the object with others. A name becomes the short form of the object. Instead of describing and re-describing in detail the properties of an object when refering to it in conversation, we simply provide the given name and we have instant recognition and understanding.

Etymology is the study of the history of names: from where the word came and at what period in our history the use of the word began. This history of a word is intriguing. Much like a puzzle, the history of a word can reveal a secret past, which may provide an unexpected connection. Thus, the original intent of the name, which may have transformed through time and usage, is retrieved to provide knowledge to those who desire it.

The word "crime" is defined as "an act punishable by law, usually considered an evil act." In a later posting, we will look at differing definitions, when we discuss what is a crime in the context of law generally and criminal law specifically. But for our purposes today, the definition given is the one we will accept. The first known usage of the word "crime" was in the High Middle Ages around 1250. Within this time, the Medieval period, or "Age of Faith," was drawing to an end as Marco Polo explored and returned laden with spices and stories. The Renaissance was not too far behind.

The etymology of "crime" is from the Old French crimne, which came from the Latin crimen meaning accusation and the Latin root cerno meaning "I decide. I give judgment." However, Rabbi Ernest Klein, a Romanian-born Canadian linguist, in his Comprehensive Etymological Dictionary of the English Language, suggests that crimen is actually derived from the phrase, "cry of distress." The Latin was derived from the Ancient Greek word krima, which means a judicial sentence or condemnation.

The history of the word does reveal shades of today`s meaning but embues the word with much more colour than the dictionary meaning we used at the beginning of this posting. Crime also now speaks to the concept of accusation, which in turn speaks to the presumption of innocence as the accused has yet to be found guilty. Or the idea of justice or judgment as in the Latin and Greek root of the word. Finally, crime speaks of a cry of distress, an individual who has lost his or her way in life and looks to society to not condemn or judge but to lend guidance.

In this historical word play, crime has taken on different shades of meaning and caused us to think of the word in different way.

Let's Talk About: The Importance of Asking "Why" When Discussing Criminal Law

In teaching criminal law, I like the class to think about why certain behaviour is deemed criminal and why other behaviour is acceptable. In learning, it is far too easy to memorize principles without a true understanding of why the principle is given and the reason behind it. The importance of why can lead to a deeper and better understanding of a concept, which can lead one to question the ideas contained therein and can ultimately lead to innovative and unique perspectives on a familiar issue.

 For some forms of behaviour we can quickly understand why the underlying acts are contrary to the law. Murder, theft, and assault are such examples. These are all acts, which we all agree are worthy of sanction. These crimes, which we call true crimes, lies at the essence of what we as a society believe is wrongful and immoral conduct. Not every immoral act is a crime, but in the case of true crimes, morality and legality are both present as philosophy and jurisprudence connect.

However, it is when law and morality do not connect and do not occur contemporaneously that we may be uncertain or unable to agree to the underlying reason or the why such behaviour is prohibited. Then, we may turn to our courts and our judges to decide whether the behaviour does in fact deserve sanctioning. Such an example is the abortion laws, which made abortion and the concomitant acts illegal and the judge-made law, through the interpretation of our Charter, which turned this prohibited conduct into acceptable behaviour.

Or we may question the efficacy of making the behavior contrary to the law and the subsequent public pressure may lead to the government changing the law to make the conduct acceptable and therefore not sanctionable. This ability of public opinion to change the law can be most clearly seen in the consumption of alcohol and the end of Prohibition or Temperance. Thus, our criminal law shifts and changes as our fundamental values as a society change and grow.

It is this flexible concept of the law, which makes learning the law so refreshing and exciting. It is the "why" which makes law relevant to us all and makes us mindful of the transformative effect law can have on a society.

Legally Minded Books to Read

In my last posting, we enjoyed some #longreads and today we will discuss even longer ones. The following is my list of 5 legally minded books to read over the holidays:

1. Crime and Punishment by Fyodor Dostoevsky circa 1956. This book stays with you. There is no other book, which can climb into the mind of a killer with so much detail, perspective, and pity. The horror of the act is observed in the backdrop of a ruthless Russia, where poverty, corruption, and greed reign. Yet, it is tempered by a beautiful and delicate theme of redemption, which is guaranteed to leave you weeping.

2. Bleak House by Charles Dickens circa 1852. I love this book. There is no better opening chapter of a book like this one as the Court of Chancery becomes a metaphor for the thick fog spreading through London like the Angel of Death sweeping through Biblical Egypt when the Pharaoh refused to let the Israelites leave. And so too does the story spread as the wards in Jarndyce vs. Jarndyce weave through the London streets together with delicious characters like Guppy, Tulkinghorn, and Clemm.  The twists and turns in this book is pure Dickens as is the language and the tragic consequences.

3. The Onion Field by Joseph Wambaugh circa 1973. This is another book, which although I read many years ago, I think and ponder about every now and then. This true crime novel, a first for Wambaugh, chronicles a horrific crime in a California onion field and the subsequent court case, which had far reaching consequences both on a personal and societal level. Wambaugh writes a moving account of a factual case and it reads like fiction.

4. A Void (La Disparition) by Georges Perec circa 1994. This quirky book is the kind of experimental writing I find fascinating. A book written completely without the vowel "e", Perec manages to use this omission or void to highlight the Kafkaesque nature of the narrative. Originally written in French, where the vowel e is even more essential, the book is actually highly biographical. Perec, an orphaned survivor of the Holocaust, finds in his missing vowel the personal themes of loss, limitations, and emptiness.

5. Plato's Apology by Socrates. The wry wit employed by Plato as he excoriates the Senate must be experienced first hand by reading Socrates replay of Plato's trial, judgment, and death. It is brilliant rhetoric. Even to the end, Plato had the capacity to teach. Just as we today have much to learn from his logic and reasoning.

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.


The Social Costs of Alberta's New Impaired Driving Regime

Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens.

Tomorrow, I will take a deeper look at the legal issues arising out of this proposal.

Thirty Day Review

Under s. 525 of the Criminal Code, there is provision for an automatic bail review for those accused who have been detained in custody pending trial. If the matter is a more serious indictable offence, the review occurs within ninety days. If it is a less serious summary conviction matter, the review is within thirty days.

This review acts as a procedural safeguard by keeping track of those in custody. It is also an important aspect of the presumption of innocence as the judge determines whether the further restriction of liberty of those merely accused of a crime is justified. Additionally, the review reinforces the Charter right to reasonable bail.

Borrowing the nomenclature of the Criminal Code, but not the analogy, this is ideablawg's thirty day review. Ideablawg has been in operation since October 10 and the weekend postings will offer updates on the issues discussed. As part of this thirty day review, I invite you to send me an email with your favourite post or even with ideas for future posts. As the creative thinker Steven Johnson said:

We are often better served by connecting ideas than we are by protecting them... Environments that build walls around good ideas tend to be less innovative in the long run than more open-ended environments. Good ideas may not want to be free, but they want to connect, fuse, and recombine... They want to complete each other as much as they want to compete.