The Peter Goldring Case and the Mens Rea For Drinking And Driving Offences

Today, I am continuing the blog conversation on the subjective/objective mens rea debate in criminal law. This continues that discourse but with a twist as we discuss the mental element of the drinking and driving offences. The recent acquittal of Peter Goldring MP on refusing to comply with a demand of a police officer to provide a breath sample raises the issue of the criminal liability of these offences and leaves one wondering if the trial judge, in that case, applied the appropriate standard of assessment.

Last posting, I introduced the debate in criminal law on the standard of liability or mens rearequired to commit a criminal offence in Canada. The debate focuses on the two liabilities or fault elements: subjective mens rea, where the trier of fact will assess the accused’s liability on the basis of what was in this particular accused’s mind when he or she committed the offence or objective liability, which removes the focus from the accused in favour of an assessment based on what the reasonable person, in the circumstances of the accused, ought to have known.

There is another form of liability, according to the Supreme Court of Canada, which should never be found in the criminal law: absolute liability.  This form of liability, commonly found in the regulatory enforcement arena, requires no fault for a conviction. Once the prosecutor establishes the defendant committed the prohibited act, a conviction follows. The mens rea or intention of the defendant is irrelevant. As the intention, be it on a subjective basis or an objective basis, is a required element of a crime, absolute liability is not an option and not constitutionally permissible. However, an argument can be made that in fact, there are offences in the Criminal Code, which are essentially absolute liability offences: drinking and driving offences.

This argument, involves a two-pronged approach to the fault requirements of drinking and driving offences. The first prong harkens back to the Supreme Court of Canada and Mr. Justice Cory’s decision in Hundal. In this case, the majority of the court held that licensed activities, like driving, require the driver to meet a standard of care as delineated by the licensing provisions. This standard applies to all individuals holding the license and is not dependent on the personal characteristics of the individual person driving. This denotes a standard based on the reasonable person and therefore, driving offences, like dangerous driving, require objective liability. This decision was applied to all driving offences.

The second prong focuses on the consumption of alcohol as opposed to the driving aspect. In Bernard, the Supreme Court of Canada found the act of drinking an alcoholic beverage as a voluntary act. This reasoning was extended further to the mental requirement, as the accused, in making the choice to become inebriated, was therefore also accepting the risks of such behaviour. This case lead to the change in the intoxication defence and the amendment of theCriminal Code under s. 33.1 to exclude the use of the defence for certain offences, such as manslaughter and sexual assault.  Thus, the act of voluntarily consuming intoxicants took the place of the mental element of a crime.

When viewing the decisions on intoxication and the decisions on driving offences, the objective standard appears to give way to an even lower standard of liability, which approaches absolute liability. If the fault element can be found in an act, or even an intention to drink alcohol, and not in an intention to commit the offence or even requiring a reasonable person to be aware of the risks of doing so, there is no fault element needed for conviction, merely the accused’s voluntary consumption of alcohol.

Certainly the SCC in Penno agreed, albeit in a split decision. The case centered on the application of the intoxication defence for an impaired driving charge. Although the use of the defence, as mentioned earlier, was restricted through new Code amendments, at the time of the Penno case there was no case law restricting its use for drinking and driving offences. The majority decision written by Justice McLachlin, as she then was, discussed the absurdity of impairment being both an “offence” and a “defence” if the intoxication defence applied. She stated “in enacting s. 234(1) of the Code, Parliament has made impairment itself an element of the offence notwithstanding the possible absence of criminal intent, thus giving paramountcy to the public interest.” Clearly, as in public welfare offences, the mens rea required for drinking and driving offences is greatly reduced in order to protect the public of the risks attached to drinking and driving. As Justice Cory will say later in the Hundal case, driving offences extract a huge social cost and “there is therefore a compelling need for effective legislation which strives to regulate the manner of driving vehicles and thereby lessen the carnage on our highways.” Importantly, Hundal was not a case of dangerous driving involving alcohol and yet the SCC found the application of an objective standard of liability for driving offences was “not only appropriate but essential.” I would argue that driving offences as inherently dangerous licensed activities, compounded with the voluntary use of intoxicants, requires the strictest form of mens rea, approaching the absolute liability found in public welfare cases.

Similarly, I would argue that the related charge of failing to provide a breath sample under s. 254(5) has a diminished fault element. Firstly, the words of the offence, requiring a failure in a duty, strongly suggests an objective standard as found in the SCC Naglik case on the mens reafor the offence of failing to provide the necessities of life. However, of note, is the most recent SCC case of A.D.H. wherein the court found subjective mens rea is required for an offence under s.218 of abandoning a child, even though the offence is found under the part on “duties tending to preservation of life.” This decision seems to contradict this previous SCC authority, but whether this is so and what the case means generally for the subjective/objective debate will be the essence of my next blog on the issue.

Secondly, s. 254(5) specifically sets out a defence of “reasonable excuse.” The “reasonable” tag immediately suggests a reasonable person or an objective standard of assessment.  In Therens,Justice Le Dain explained the unique character of the section, which requires one to comply with a police officer’s statutory demand. Therefore a person investigated for drinking and driving is not “free” to choose not to provide a sample but must provide one, short of a “reasonable excuse.” Case law has filled in the definition by providing examples of what a “reasonable excuse” can be or cannot be for purposes of the section. Typically, the reason must be one in which the accused had no choice but to refuse, such as in a medical condition. In this respect, I would argue that such a reasonable excuse actually goes to the voluntariness of the act of refusing as opposed to the intention to refuse. Again this would suggest a no-fault approach to drinking and driving offences, including the charge of refuse to blow.

In the Goldring case, Provincial Court Assistant Chief Judge Anderson cited as a primary issue at trial whether the accused had “the necessary intent to make his failure to provide a sample of breath criminal.” Even by framing the issue thusly, the trial judge elevates the level of intent required by suggesting the assessment is a personal one to the accused and therefore subjective.  Further in his discussion, the trial judge did not rely on the series of cases I referred to in this blog, preferring to emphasize the criminal nature of the charge, which, in his view, required subjective mens rea. In acquitting the accused, Chief Judge Anderson stated he was not satisfied that Goldring’s refusal was “a conscious decision or willful act.” The high level of intention required by Judge Anderson is a far cry from the wording of the offence and the weight of the SCC case law where “reasonableness” is at issue and “willfulness” is irrelevant.  Certainly, the finding is contrary to the court’s emphasis on the public interest as opposed to the private interest. It remains to be seen if the Crown will appeal this decision considering Goldring has already been welcomed back into the government’s fold. What will be even more interesting is to see if anyone else will be acquitted of this offence following the same reasoning. In a government where tough on crime issues and public safety is supreme, the incongruity of this decision is palpable.

The Magnotta Case And The Exclusion of the Public

The details of the allegation are disturbing: a scandalous luring of a University student, a gruesome murder, a grisly dismemberment, and then a twisted disposal of the body parts, via mail, to elementary schools. Then the chase across Europe and odd sightings of a man, we know as Luka Magnotta, until the capture is made, almost innocently, as Magnotta in a German Internet Café surfed the web for the disturbing details of his own case. In a previous post, I discussed the extradition issues with the case but Magnotta, by consent, returned quietly to Canada to face a number of charges, including  first-degree murder under s. 231 of the Criminal Code, committing indignities to a human corpse under s.182 of the Criminal Code, mailing obscene materials under s.168 of the Criminal Code, publishing obscene materials under s.163 of the Criminal Code and threatening Prime Minister Stephen Harper under s.264.1 of the Criminal Code.

Now, with the start of Magnotta’s preliminary inquiry, the case is back in the media spotlight as Magnotta’s defence attempts to exclude the media and public from hearing the preliminary inquiry evidence. Today, Quebec Court Judge Lori-Renée Weitzman denied the defence request.

But what was this request all about?

A preliminary inquiry, as I explained in a previous post, is a procedure to determine if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. This vetting process is permitted for only those indictable offences, which the accused has elected to be tried before a superior court judge. The hearing is heard before a provincial court judge who hears the evidence and decides whether to commit the accused for trial on the charges or any other charges arising out of the evidence or to discharge the accused for the lack of evidence on an essential element of any of the charges. It should be noted that the “right” to a preliminary inquiry is not absolute. The accused can waive the preliminary inquiry and consent to committal on all or some of the charges. The Attorney General can also circumvent a preliminary inquiry by preferring a direct indictment under s.577 of the Criminal Code. In that case, no preliminary inquiry takes place and the matter proceeds directly to trial in superior court.

The powers of a judge sitting as a preliminary inquiry judge are many and varied and set out in s. 537 of the Criminal Code. As a matter of course, the preliminary inquiry judge will order a ban on publishing the evidence heard under s.539 of the Criminal Code. This is done to preserve the integrity of the trial process, particularly where the trial will be before a judge and jury. A publication ban will ensure that the public remains impartial and ensures that evidence, which might become inadmissible at trial, is not within the public domain. However, such a ban on publication does not include a ban on the public attending the inquiry to hear the evidence first hand. It merely bans publication or distribution of such evidence heard.

The Magnotta defence, however, wanted the judge to go that extra step by banning the public from attending the inquiry under s.537(1)(h), which gives the judge the power to “order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing.” There is also a general power to exclude the public under s. 486 of the Criminal Code on the basis that the judge “is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.”

Although the reasons for dismissing the application has yet to be released online, it is instructive to review two other equally disturbing infamous cases of Paul Bernardo and Robert Pickton, where somewhat similar requests were made, in an attempt to understand the dynamics of such an application. In Pickton, the defence made a motion for exclusion of the public on the basis the case was so media intensive and with thestate of modern-day publication technology,

” a simple ban on publication of the evidence would not serve the ends of justice and would not preserve the accused’s right to be tried before a fair and impartial tribunal. This was particularly so, submitted the defence, as the American media was not bound to the order and could, therefore, publish the evidence thereby tainting the jury pool once the matter came to trial. In dismissing the application, except for permitting the usual ban on publication, and leaving open the defence’s right to re-open the application, Judge Stone recognized “the conflicts which arise between our tradition of open access to the courts and the principles encompassed by the right of freedom of expression versus the rights provided to an accused person in order to ensure that he or she receives a fair trial.” Even in that context, Judge Stone recognized, as emphasized in the Supreme Court of Canada Dagenais case that such an order was “exceptional.” Ultimately, Judge Stone agreed with Justice Oppal of the British Columbia Supreme Court, wherein Justice Oppal stated in the Murrin case: We live in an era that is often marked by high degrees of pretrial publicity which often features revelations of prejudicial pretrial evidence. In fact, it can be safely said that sometimes media coverage can be described as frenzied. However, I do not think that the justice system is so fragile that appropriate corrective measures cannot be taken in certain cases so as to ensure that an accused's right to a fair trial is not jeopardized.

In the end, the Judge released a very specific ban on publication, specifically prohibiting the information to be placed on the Internet. As an aside, in the 1996 SCC Canadian Broadcasting Corp. v. New Brunswick (Attorney General) case, the SCC sets out specific factors in considering such a ban in light of the conflicting Charter rights of an accused's right to fair trial and the right to public access to our criminal justice system as well as freedom of the press under s.7 and s.2(b).

Conversely, in the Bernardo case, it was the Crown and the families of the victims, which requested an order prohibiting the public from hearing and watching the videotape recordings of the crime when presented as evidence in court.  The court permitted this limited ban out of public decency and respect for the victims. Ultimately, the tapes were destroyed.

Of course, although the application was dismissed for Magnotta, this will not be the end of the matter. As the case goes to trial, there will, no doubt, be a revisiting of this issue of publicity and publication of the case in the media. At that time, the issue will be whether or not an impartial jury can indeed be found in light of the intense media exposure of the case and ultimately whether even the worst allegations can produce a fair trial.

 

 

 

 

 

 

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

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

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

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

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

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

Is There Evidence In This Courtroom? Admissibility of Evidence At A Criminal Trial

In the last posting I discussed police interviewing or interrogation of an accused and the difficulties presented by oppressive and inappropriate techniques. The issue was the manner in which the police interviewed the accused, using the Reid technique, an interview technique created in the nineteen fifties, which, according to critics, is “a guilt presumptive interrogation disguised as truth-seeking interview” where “innocence is not an option.” Indeed, statements taken from an accused in such an atmosphere have, unsurprisingly, resulted in the exclusion of the statements from trial evidence.

I say “unsurprisingly,” but perhaps an assumption that we understand why such a statement would ever be inadmissible as evidence, is assuming too much. To understand this, we must step back and first understand the purpose of evidence in a criminal trial.

Let’s look at an example: Bea Goode is charged with taking a toothbrush from the local drug store. She is charged with theft under $5000.00. In the Criminal Code, section 322 sets out the definition of the crime of theft and section 334 outlines the punishment and procedure, which differs if the value of the property is over $5000.00. The least serious mode of proceeding, and therefore attracting the lesser punishment, is reserved for the offence of theft under $5000.00. This value amount changes over time as the value of our dollar becomes more inflated: when I started law school in the early eighties the crime was theft over or under $200.00.

In any event, Bea is charged and required to attend in court. There is a whole process involved before the setting of the trial date, but let’s imagine for our purposes that Bea’s trial is scheduled. What then is the purpose of the trial? The purpose is to determine what happened and whether or not what happened is or is not a crime. Obviously, we want to determine what really happened as if we had been there ourselves. We want information, as objective as possible, so that if more than one person saw what happened there would be a general agreement as to the facts. In other words, we want the truth. As a result, there is a truth-finding function of the trial.

If the main purpose of the trial is to find out the “truth” and to allocate responsibility on that basis, then how does the criminal trial accomplish this through the admissibility of evidence? First, let’s define “evidence” and its purpose at trial.

In our adversarial system, we require both the Crown and the defence to vigorously pursue a legitimate result to the best of their ability. At all times these advocates must conduct themselves in a manner consistent with the codes of conduct of the various law societies, the legal rules of process and procedure, and the rules of court. For example, counsel has a duty, as an officer of the court, not to mislead the court by offering false or misleading information. Some of this information may be called “evidence.”

Evidence is the data or facts with which the trier of fact, either a judge or a jury, uses to come to a decision. The trier of fact, upon receiving this data, applies legal rules and principles to these facts in arriving at a final decision on the case. In a judge alone case, the judge is the trier of fact and is also the arbiter of the law: the judge will decide which rule of law applies to any given set of facts.

Where there is a jury, the judge determines the applicable law, instructs the jury on those principles, and then the jury, as the trier of fact, takes the rules as given and applies the rules to the accepted facts. In our adversarial system, the trier fact must decide if the required elements of a crime, both legal and factual, have been proven beyond a reasonable doubt before finding guilt. It is only evidence, which under our legal rules has been deemed admissible, that can be considered by the trier of fact. Then, the trier of fact must decide, on the basis of all of the admissible evidence, whether the case has been proved beyond a reasonable doubt. To come to this conclusion, the trier of fact can accept all, part or none of the admissible evidence. However, only admissible evidence may be considered.

There are many legal rules surrounding the admissibility of evidence. Many of these rules are designed to enhance or ensure the truth-finding function of a trial. These rules are historical and have arisen through the English common law or custom for hundreds of years. These rules were fashioned to protect the accused: if we are going to punish an individual for their actions by stigmatizing them as criminals or by depriving them of their liberty or livelihood, we want to be certain we are doing it in a fair and just manner based on relevant, proven, and truthful evidence.

Indeed, many of the rules of evidence are in place to ensure as much as possible the truthfulness or objectivity of the facts. A good example would be the rule against admitting hearsay evidence. Hearsay is information coming from a third person, not the witness, who is merely repeating the information. The problem with admitting this kind of information is obvious: the witness could have heard the information in error or could be adding their own interpretation. Thus, the truthfulness of the information is suspect. Furthermore, the person who actually said the information is not before the trier of fact and therefore their demeanour, credibility, and observation skills cannot be assessed. In other words it is not the best evidence and therefore is more open to inaccuracy: it is unreliable and possibly untruthful.

There is now a trend towards admitting hearsay evidence if it is reliable evidence and necessary to the case. The difficulty is in deciding what makes such evidence reliable and necessary. The legal view has definitely changed over time with the result that necessity and reliability has been given a generous interpretation; not necessarily an interpretation to the benefit of the person on trial and therefore not consistent with protection of the person whose liberty interests are at stake. Supporters of this trend suggest it is more consistent with a societal interest in protection of the public. Others also suggest that this trend is merely accepting the realities that the search for truth may be an impossible quest and a naïve one. What was once inadmissible becomes admissible depending on the shifts in our fundamental values.

What does this mean for confessions? In a future posting, I will discuss more specifically the confessions rule and the special place evidence involving self-incrimination has in our criminal law.

 

“Reid” This: Is It Time To Change Police Interrogation Techniques?

Recently, a news story made its way across the Calgary news landscape: Alberta Provincial Court Judge Dinkel ruled an inclupatory statement made by the accused, Christa Lynn Chapple, inadmissible as evidence at the trial. The ruling found the statement was not given freely and voluntary as a result of the police interrogation. The actual ruling was made earlier this summer, but received media attention as journalists connected the decision to a recent field study on police questioning practices.

This study is one of a series of studies on Canadian police practices researched by the psychology department at the Memorial University of Newfoundland. The primary researcher, Brent Snook, associate professor of psychology at the university, also co-authored another published study from 2012 on the training of Canadian police in the “technique” of interviewing witnesses. The same Memorial team, of Snook, MacDonald, and Eastwood, also published an earlier study in 2010 on how Canadian police administer the right to silence and the right to retain and instruct counsel – both are required cautions to be given to an accused in police detention as a result of the Charter and Charter case law interpretation. Eastwood and Snook both published a paper in 2009 on how understandable to the accused the right to silence caution was when actually given by the arresting police officer.

Clearly, this group of researchers has looked long and hard at Canadian police investigatory practices and techniques and are well equipped to comment on police practices generally. Comment, they did - in the opening statement of the police training study paper, the authors find that “Two recent field studies on how Canadian police officers interview witnesses suggest that most interviewers are not employing best practices.”

This deficiency in practice was further identified in the most recent study on police questioning. Specifically, the researchers were concerned with the practice of the police to ask “close-end” or leading questions, which did not permit a free flow of information from the witness. Often, the interrogators “violated the recommended 80–20 talking rule and interrupted witnesses … in almost 90% of the interviews.” Such line of interrogation, which requires the investigator to control the interview and the information flowing from the questioning, does not, in the researchers opinion, allow for accurate and complete statements. A lack of training, supervision, and feedback was identified as the main reasons why the interview practices were so inadequate.

It is this kind of interview technique which was at the core of the Chapple case. Christa Lynn Chapple was an operator of a day home for children and had in her care a young child who subsequently suffered an unexplained head injury. At the time of the incident, Chapple was interviewed twice with no charges laid. A year later, after the police received forensic information from Dr. Matshes, a forensic pathologist, Chapple was arrested for aggravated assault and brought in for questioning. It must be noted, as Judge Dinkel also noted, that Dr. Matshes was under investigation for coming to “making unreasonable conclusions” in his forensic findings. In any event, Dr. Matshes opinion that the injury was done by non-accidental blunt force trauma caused the investigators to believe that Chapple was involved despite the lack of evidence to tie her to the injury and despite her previous denials.

The interview spanned over eight hours. It was an arduous interview in which Chapple tried to exercise her right to remain silent at least 24 times. Each time she attempted to exercise her right, the police interviewer ignored Chapple and immediately took over the interview by talking over her. In this interview the 80-20 rule, also known as the Pareto Analysis, requiring the suspect to speak 80% of the time, while the interviewer spoke 20% of the time, was practically reversed. The interview was peppered with long monologues from the police questioner, leading questions, and a repeated disbelief in the statements of Chapple, when she was actually given the opportunity to say something.

This form of questioning is known as the Reid Technique, a line of questioning formulated by Joseph Buckley in the 1950’s, where the investigator uses control of the witness and lengthy monologues to extract a confession. The technique, as Judge Dinkel described in Chapple, “a guilt presumptive interrogation disguised as truth-seeking interview” where “innocence is not an option.” The interview, according to Judge Dinkel’s findings, “was bent on extracting a confession at any cost.” The cost was, in fact, too high as the statement, taken in utterly oppressive circumstances, was deemed involuntary.

There are fortunately lessons to be learned from the courts when evidence is not admitted. The administration of justice, when faced with such findings of a judge, must rethink the practice or the implementation of a technique to ensure the system does not come into disrepute. Fortunately, Calgary Police Services is doing a review of their practices and training. Hopefully, they will be reviewing the studies of Snook and his team as well.

The Reid Technique is still being used across North America. This is in stark contrast to the studies from Memorial University and in defiance of a global trend to ensure miscarriages of justice, through false confessions, do not occur. The only way we can ensure this will not happen is by preserving and protecting the rights of an accused person, which goes to the very core values of our criminal justice system such as the presumption of innocence.

In previous postings, I have discussed the importance of the presumption of innocence to our criminal justice system. Those postings can be found here and here. In the next posting I will expand on the reason why a statement made by an accused to a person in authority, such as a police officer, must be freely and voluntarily given to be admissible in court. The reasoning, as I will discuss, ties into one of the major “themes” of criminal law: choice.

Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case

Presently, there are essentially two different kinds or categories of criminal intent: subjective and objective. Intent or mens rea is the fault requirement of a crime. Without intent or the intention to do the prohibited act, there is no crime and the accused should be acquitted. Traditionally, the criminal law recognized only one category of intent: subjective mens rea as the basis for a criminal offence. Subjective intent requires the prosecutor to prove beyond a reasonable doubt that this accused intended his actions. This requires the trier of fact to contemplate on the thought processes of the accused as presented through the evidence. Subjective intent differs greatly from objective intent, which sets up as a model of behaviour the standard of the “reasonable man.” Thus, the trier of fact when considering an objective mens rea offence must consider what a reasonable man would have done in the circumstances. If the accused fails to act in accordance with this standard or model of behaviour, the accused is deemed guilty of the offence, even if the accused did not intend the consequences of his actions.

Objective intent can be a harsh standard as it can be argued that those individuals who are not “average” or have some deficiencies of character cannot possibly reach the standard of a reasonable man. On the other hand, the criminal law’s main thrust is to protect the public. In harsh terms then, the criminal law punishes those who are unsafe to protect the majority of people who are fully aware of what is a reasonable course of action in the circumstances.

I stop to reflect on the term “reasonable man.” This traditionally was the term and equally traditionally this was the standard: a reasonable and sober man. Not a woman, but a man. Obviously when society accepted the equality of the sexes, this phrase was changes to “reasonable person.” Of course there is no description of a “reasonable person.” One cannot simply look up the phrase in a dictionary and find a full description or even a picture of such a venerated individual. No, triers of fact are left to their own devices in conjuring up such an individual, presumably because the trier of fact is assumed to be a reasonable person. In almost a tautological argument, the presumed reasonable person assumes a reasonable person for the purposes of determining the guilt or innocence of an accused person.

As a result, the objective standard of intent is not favoured by the defence and yet, unsurprisingly is favoured by the prosecutor. It is much easier to rely on a concept of reasonableness, than it is to determine a particular person’s intention. As the bar is lowered, convictions occur more readily in an objective mens rea crime. Typically, however such crimes were reserved to unsafe licensed behaviour such as careless use of a firearm or dangerous driving. A licensed activity requires a certain licensing standard and thus if you fall below that standard while involved in a dangerous activity, then objective mens rea should apply: common sense dictates it must. And that is where we come to the new Supreme Court of Canada case of R. v. Walle, 2012 SCC 41.

Adrian Walle was charged and convicted of second-degree murder, when he shot at point blank range with a sawed-off .22 calibre rifle, Jeffery Shuckburgh, a Calgary bar owner who at the time was escorting Walle off the premises. Walle’s trial counsel argued that the rifle went off due to an unintentional movement made by the accused. In other words, Walle’s actions were not voluntary as he acted without awareness of his actions, in other words the shooting was purely accidental. A prohibited act or the actus reus of a crime must be a voluntary act. Without a voluntary prohibited act, there is no crime. This argument had little basis in the evidence and the trial judge, sitting without a jury as occurs when a case is complicated or based on legal argument, made the following finding in convicting the accused:


I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.


The trial judge also relied upon the “common sense inference,” which contemplates the reasonable person or that a “sane and sober person” intends the reasonable and probable consequences of his acts. On appeal, counsel for the defence argued that the trial judge was wrong to rely upon this “common sense inference” without recognizing that Adrian Walle was not only under the influence of alcohol at the time, but was also suffering from various psychiatric disorders including “Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder.”

 

The Supreme Court of Canada unanimously disposed of this appeal. In a judgment written by new appointment Mr. Justice Moldaver, who I have written on in previous posting, the court easily rejected this argument on the dual basis that this argument was not raised at the time of trial and that a trier of fact need not refer in the reasons to every piece of evidence proffered. As long as the decision appears to be based upon the relevant evidence, which it was in this case, the reasons are sound. The fact the issue was not raised at trial merely goes to trial tactics. Trial counsel views a case in a certain way and crafts a trial position as a result. Often, counsel will at trial pursue this theory solely and thus not raise very possible argument on the case as it would detract from the chosen position.

The secondary argument on appeal, raised by the intervenor’s in the case, the Criminal Lawyers’ Association of Ontario, cause the court more concern. The crux of that argument involved the propriety of using the “common sense inference” in circumstances where the accused is clearly not an individual who practices common sense due to his psychiatric issues. Such an inference essentially imports an objective mens rea standard into a crime which is considered one requiring subjective intent. To convict of murder, the prosecutor was obliged to prove beyond a reasonable doubt that Walle intended to kill or that he was reckless as to whether death would be a consequence of his actions. Murder is not based on what a reasonable person should have done at the time. However, manslaughter is an objective mens rea crime, which requires an accused to have an objective awareness that his actions will cause bodily harm. In murder, the accused must be subjectively aware that his actions will cause death.

Of course, in Walle’s case, the argument is a strong one. Certainly, Mr. Walle would definitely not be the poster-boy for a reasonable person nor would he be described as “sane and sober.” Despite this, Justice Moldaver rejected this argument but with a caveat. In his view, the “common sense inference” “provides a jury with a marker against which to measure the rather amorphous concept of intent.” The instruction also cautions the jury that such an inference may be made but is not required to be made in their deliberations on intent.

Leaving aside that the Walle case did not employ a jury, Justice Moldaver’s comments highlight the difficulty with the concept. To view the inference as “a marker against which to measure” in my mind clearly suggests the objective standard of mens rea is at work. Indeed, it is difficult not to view this inference as anything but applying an objective standard based upon the trier of facts conception of what a reasonable person would have done in the circumstances. Thus, the objective standard is not only alive and well in Canadian criminal law, it has crept into the very heart of criminal law precepts, which require those core crimes such as murder and theft, require subjective intention. This inevitably should leave us wondering if the categorizing of the intention required for a particular crime is history, in favour of what the Supreme Court of Canada likes to call the “principled approach” to legal decision-making.

In closing, I refer back to the finding of the trial judge mentioned earlier that “when the accused Walle deliberately pulled the trigger … he knew that the reasonable and probable consequence...” By the trial judge using that phrase “reasonable and probable,” he has blurred the lines between objective and subjective intention, ensuring that the concept of “reasonable person,” whoever that may be, is an integral part of the crime of murder.

The Supreme Court of Canada in a much earlier 1990 Charter case said, in the majority judgment written by Chief Justice Lamer, this about the importance of subjective mens rea in R. v. Martineau:


In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.


In the end, it is clear that there was ample evidence to uphold Walle’s conviction, but as they say, bad facts lead to bad laws. The question is whether this approach is a foreshadowing of what is to come in terms of the Court’s position on intention or whether it is merely a specific response to a particularly heinous crime.

 

The Canadian Spy, Bail Reviews, and Preliminary Inquiries

Jeffrey Delisle, the naval intelligence officer charges both under the Security of Information Act and the Criminal Code, will have a preliminary hearing on those charges starting on October 10, 2012. For a full review of his charges, a discussion of other infamous Canadian spies, as well as a primer on the Official Secrets Act and the legislation now enacted to replace that Act, the Security of Information Act, read my previous posting on the issue Spy vs. Spy. For a discussion of Mr. Delisle’s bail hearing see my posting Blog Update: The Spy and the Pamphleteer.

This date seems rather late considering Delisle was denied bail and has been in custody since his arrest in mid-January, 2012. By the time Delisle has his preliminary hearing, he would have been in pre-trial custody, which is much harder time than serving a sentence, for nine months. Considering this, it would not be surprising if Mr. Delisle’s counsel will launch a bail review under s. 520 of the Criminal Code.

Such a review is heard by a Superior Court Judge. In this instance as the matter is in Nova Scotia, a bail review would be before a Nova Scotia Supreme Court Justice. In such a bail review, the Judge considers any relevant evidence, both written and oral, the transcript of the previous bail hearing, any exhibits filled at the previous bail hearing, and such additional evidence as either the Crown or the defence may offer.

On a bail review, counsel may argue that the previous order denying bail was based on a legal/factual error. Such argument would be based on transcript evidence and legal argument. Or the defence might argue a material change in circumstance has occurred since the previous hearing. This argument would include affidavit evidence or even vive voce evidence, which would involve calling witnesses at the review hearings. When this occurs, the bail review becomes essentially a new bail hearing. The onus of proof on a bail review is on the party who brings the application; in this case it would be the defence. It is therefore the defence who must satisfy the reviewing Judge that judicial interim release is appropriate.

There is also a provision in the Criminal Code, under s.525 for an automatic bail review if an accused has been in custody, in Delisle’s case, for more than ninety days. Considering the length of time he has already been in custody, six months, one can assume such automatic reviews have occurred. Although, these reviews are automatic, in order to ensure an accused does not languish in jail unnecessarily and in order to preserve the presumption of innocence, defence counsel can waive or pass on the right to an automatic review. This would be done if the prospect of bail seems slim. However, in such an automatic review, the reviewing judge does consider the delay in the matter coming to trial and the reasons for the delay. The longer the accused sits in pre-trial custody, the more likely the accused will eventually be released. However, in those complicated cases, which require much effort to get ready for trial, the courts will tolerate longer delays.

In Delisle’s case, because of the severity of the allegations, a trial date was not set but a preliminary hearing date. Additionally, Delisle elected to be tried by judge and jury once the matter goes to trial. Such an election is typical as the defence can change that election to a Judge alone trial after the preliminary hearing. It is far simpler to elect down to a judge alone trial than it is to elect up to a judge and jury, hence the election is usually for judge and jury.

It is important to understand that a preliminary hearing is not a trial where guilt and innocence is at issue. Traditionally, the sole purpose of the preliminary hearing is to ensure there is enough evidence to put the accused to trial. It is another safeguard to ensure the accused is fairly tried. If there is insufficient evidence, the defence will ask for a discharge of the accused at the preliminary hearing. If this is granted, the charges are dismissed and the accused is released from custody and no longer is charged with a criminal offence. If there is sufficient evidence, the judge will order the accused to stand trial in the superior court.

A preliminary hearing is heard in the lower level or provincial court. In order for the judge to make a determination of sufficiency of evidence, the Crown, who has the burden to show why the charges should proceed, calls witnesses to give evidence. The defence then has a right to cross examine the witnesses, which brings us to the ulterior reason for a preliminary hearing: to act as a discovery of information on the case, which will assist in preparation for evidence and to “pin down” witnesses on their evidence. This “pinning down” or defining clearly under oath and the record a witness’s evidence is important for trial. If a witness later changes his evidence, the fact at on an earlier occasion, when the matters were more fresh in the witness’s mind, the witness gave different evidence, will go to the credibility or believability of the witness at trial. Also, should the witness abscond or disappear, the earlier evidence given under oath at the preliminary hearing may be read into evidence at trial.

Despite the importance of the preliminary hearing to the full answer and defence of an accused, there have been calls to abolish the practice both in Canada and in other Commonwealth jurisdictions such as Australia. Some Caribbean Commonwealth countries, such as Trinidad and Tobago, have abolished the hearings. Indeed, in the UK, where the concept originated, as of April 2012, preliminary hearings or, as the English call them, committal hearings have been abolished. The changes are being phased in, with some jurisdictions still following the old system. Instead, the Crown is obliged to ensure full disclosure of the case is given to the accused in a timely fashion. Obviously, this safeguard cannot possibly take the place of a cross examination at a preliminary inquiry. In the United States, which does not follow the English common law tradition, under certain circumstances, there are preliminary hearings.

What will this mean for Mr. Delisle? In October, Mr. Delisle should be able to test the government’s case and determine the sufficiency of the evidence against him. The public however will not be privy to that information. Typically, the court on a preliminary hearing will order a ban on publication of the evidence heard, in order to ensure that no potential jurors are pre-disposed by the committal evidence. Additionally, the Crown may shut down the preliminary hearing at anytime during the course of it or even not hold the hearing at all, choosing to directly indict the accused to superior court. This tactic is helpful if the case is complicated to present or if the investigation is ongoing. There is, therefore, a possibility that Mr. Delisle will not get his “day in court” until trial. Until October, the story of the Canadian Spy will continue. 

Assisted Suicide Appeal By Canadian Government Announced

No surprise that the Federal government will be appealing the assisted suicide decision recently rendered by the British Columbia Supreme Court in Carter v. Canada (Attorney General). As discussed in my previous postings on the issue, the Federal government, through the Minister of Justice Rob Nicholson, had thirty days from the handing down of the BC decision to appeal to the British Columbia Court of Appeal. The time deadline was today and true to form, the government squeezed within the time period by filing the Notice to Appeal today. The government will also seek a stay of the ruling of Madam Justice Lynn Smith, which permits Gloria Taylor, suffering from ALS, to seek an assisted suicide when she so chose to do so through a rarely used constitutional exemption.

In Rob Nicholson's statement announcing the appeal, he maintained that the laws surrounding assisted suicide "exist to protect all Canadians." This idea of safeguarding an individual's life, even if the individual wants to end that life, is very consistent with the Supreme Court of Canada ruling in the Rodriguez case from 1993. Whether or not this idea of "government-knows-best" is still consistent with present Canadian values will no doubtedly be at issue when the Taylor et al case is ultimately heard before the Supreme Court of Canada. Again, considering the make-up of the present day SCC, particularly with the presence of Chief Justice McLachlin, who disagreed with the Rodriguez majority ruling, this rather outmoded idea of government as ultimate protector may be an idea of the past. Stay tuned to this blog for more on this issue.

In Defence of Civil Disobedience: Part Two

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

Blog Update: The Spy and the Pamphleteer

In previous postings, I have discussed two very different cases now before Canadian courts. The first case concerns William Whatcott, a persistent anti-gay pamphleteer, who is before two different courts connected to his pamphleteering activities. The second case is of Jeffery Delisle, the first person charged with spying under the newly enacted Security of Information Act. Although the two cases are completely unrelated, court decisions in both of these cases were handed down on March 30, 2012.

The first Whatcott case, which is still on reserve before the Supreme Court of Canada, involves the Saskatchewan Human Rights Tribunal’s finding that Whatcott’s anti-gay pamphlets amounted to hate speech. The other Whatcott case, decided on March 30, 2012, is an appeal of the quashing of Whatcott’s trespass charge when he was on University of Calgary lands to hand out his anti-gay literature. The original decision to quash the charge by Provincial Court Judge Bascom can be accessed here.

Just as a refresher, the Supreme Court of Canada Whatcott case is a vitally important decision for the ability of human rights tribunals to uphold the tenants of human rights legislation. It also raises the difficult issue of conflicting Charter rights: in this case the freedom of expression under s.2(b) and freedom of religion under s.2(a) in the context of competing Charter values as found under s.15, which promote respect and tolerance of others in our community.

Although the SCC Whatcott case concerns the constitutionality of the hate speech provision in the Saskatchewan Human Rights Code, the ultimate issue in the case will decide whether or not provincial laws on hate speech must conform with the more stringent hate speech section in the Criminal Code. If so, provincial human rights codes could be essentially redundant, leaving the more difficult to prove Criminal Code sections to safeguard society from the harmful effects of hate speech. Some of the factums filed in support of the SCC argument can be found here.

This SCC decision is of particular interest in Alberta, where provincial election campaigning has touched on the controversy surrounding the Alberta Human Rights Commission and its enforcement of provincial hate speech legislation. The Boisson v. Lund case, also discussed in a previous posting, shares similar issues with the SCC Whatcott. The Alberta Court of Appeal has not as yet released a decision on this case. The controversy in Alberta over this case and the high profile Alberta Human Rights case against journalist Ezra Levant for re-publishing the infamous Dutch “Muslim Cartoon,” has brought repeated calls for abolishing the Alberta Human Rights Commission. The Wildrose Party is campaigning on a platform, which includes abolishing the Commission, instead creating a new Human Rights Division in the Provincial Court of Alberta.

In the other Whatcott case of trespassing on University lands, the case has been so far decided in favour of protecting freedom of expression. In a previous posting, I discussed Alberta Provincial Court Judge Bascom’s stay of trespassing charges against Whatcott on the basis of s.2(b) expression rights under the Charter. On March 30, 2012, the appeal of the decision was heard before Alberta Queen’s Bench Justice Paul Jeffery, who summarily dismissed the Crown appeal and upheld Judge Bascom’s decision. The written reasons for the decision have not, as yet, been released.

Unlike Mr. Whatcott, Jeffery Delisle did not receive a favourable decision on March 30, 2012. Mr. Delisle was refused bail by Nova Scotia Provincial Court Judge Beach and ordered to stay in custody pending his trial. A ban on publication was imposed at the bail hearing and therefore the reasons for dismissing the bail application is unknown. Although Mr. Delisle’s lawyer stated he was “disappointed” albeit not surprised with the decision, there is no word whether or not he will be reviewing the decision in superior court. In the meantime, Mr. Delisle will return to court on May 8, presumably to set a date for trial. Delisle’s lawyer has commented on the case, indicating Delisle is not accused of endangering military troops as a result of his alleged espionage. There is some suggestion Delisle, at the time of the commission of the offence, was heavily into online gaming and had a “computer addiction,” which may have lead to monetary difficulties. For further discussion, read my Spy vs. Spy blog and my blog entitled Let’s Talk About: Diplomatic Immunity. For further reading on the Whatcott cases, read my blogs Law, Literature, and Inherit The Wind, The Road Taken By The Supreme Court of Canada, A Message of Tolerance, Limits of Expression, and Whatcott in The Courts Again.

 

 

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. 

 

Don't Pre-Judge! Jury Vetting and the Supreme Court of Canada

Next Wednesday and Thursday, the Supreme Court of Canada will be hearing the appeals of Tung Chi Duong, Vinicio Cardoso, and Ibrahim Yumnu, which raise the issue of jury vetting: a process where the prosecution does a pre-court check of potential jurors. The three Ontario co-accused were convicted of first-degree murder and conspiracy to commit murder involving a contract killing. The Crown’s office, upon receipt of the jury panel lists containing the names of potential jurors, requested police enforcement authorities to do criminal record checks of the listed individuals and to make any comments “concerning any disreputable persons we would not want as a juror.” The Crown did not disclose the information received through this pre-vetting process to the defence, although there was some evidence trial counsel was aware of this practice. The information was used by the trial Crown in selecting the jury for the trial.

In terms of the legislative authority to perform such a check, neither the Criminal Code rules relating to the jury selection process in court nor the pre-trial rules found in the provincial Juries Act, as enacted at the time of the trial, permitted the procedure. It should be noted that the Ontario Juries Act has since been amended, under s.18.2, to provide a procedure for police to pre-check a potential juror for the presence or absence of a criminal record. Such a check is required under s. 4(b) to determine if a potential juror is ineligible to serve as a juror due to a prior conviction for “an offence that may be prosecuted on indictment.” The phrase “may be prosecuted on indictment” refers to the mode of trying the accused’s case in the criminal courts.  An indictable offence is considered to be a more serious crime and carries a higher penalty than a less serious summary conviction offence. Certain indictable offences give the accused the right to have the trial in the Superior Court as opposed to Provincial Court. Some indictable offences, such as murder, also give the accused the right to a jury trial.

Generally, pre-vetting of jurors is not an acceptable practice in Canada. Such a pre-trial process is contrary to the fundamental principles of justice, which require the offender to be tried before an independent and impartial jury. Since the advent of the Charter, this fundamental principle has been constitutionally protected under s. 11 (d) and is inexorably bound up with another core criminal law principle: the presumption of innocence. I have written at length on the historical significance of the presumption in earlier postings. More generally, this procedural right to a fair trial is also protected under section 7 of the Charter as the principle lies at the very heart of the administration of justice.

The issue is one of impartiality under the Charter. Section 11(d) protects an offender’s right to a fair trial before an independent and impartial jury. Permitting pre-vetting of jurors has the potential effect of selecting biased juries, which are neither independent nor impartial, but based on selected criterion. The resultant effect is a pre-packaged or pre-determined jury, which would therefore favour the party using the pre-selection process. In other words such a jury would “pre-judge” the issues.

Even the potential for bias is contrary to our concept of trial fairness. As discussed by Justice Cory in the Bain case, apprehension of jury bias is to be avoided as the mere appearance of impartiality would be contrary to Charter principles. Although the concept holds the administration of justice to a high standard of impartiality, the apprehension of bias must be reasonably held. Thus, the question to be determined on the issue of bias is as follows: would reasonable and right-minded persons find there a reasonable apprehension of bias in the circumstances.

This question brings us back to the Duong, Cardoso, and Yumnu case. On appeal to the Court of Appeal for Ontario, appellate counsel did not refer to the arguments as outlined above but focused instead upon the Crown’s lack of disclosure of the vetting process. In the appellant’s view, this lack or delay of disclosure compromised the defence’s ability to make full answer and defence under s. 7 of the Charter. This position was easily dismissed by Justice Watt, speaking on behalf of the Court, as there was no evidence of any actual or perceived unfairness of the selection of the jury based on this non-disclosure. Unfortunately it appears the defence will be making the same arguments before the Supreme Court of Canada as revealed by a perusal of the appellant Yumnu’s factum.

However, a large number of Intervenors have filed material and will be making submissions on the issue such as the Criminal Lawyers’ Association, the Ontario Crown Attorneys’ Association, David Asper Centre for Constitutional Rights, Information and Privacy Commissioner of Ontario, Canadian Civil Liberties Association, and the British Columbia Civil Liberties Association. It remains to be seen what arguments will be finally presented on this issue and it will be of great interest to see how the Supreme Court of Canada ultimately deals with the issue of pre-vetting a jury.

In the next posting, I will continue the discussion through the international perspective on the efficacy and issues surrounding jury vetting.

The Trial Judge Deserves Deference!

Oftentimes a Supreme Court of Canada decision can be, at first glance, unimportant, particularly when the decision is brief. This can happen when the Court readily agrees with the lower Court decision, either the majority or even the dissent, and does not feel the need to add to the already cogent written decision. Sometimes, these one-liners by the SCC, fly under the radar and are not recognized as impactful decisions.

Such was seemingly the case in a recent decision of the Supreme Court of Canada in R. v. T.L.M. released on February 14, 2012. The case, heard by a panel of seven justices as opposed to the full court complement of nine, was an appeal from the Supreme Court of Newfoundland and Labrador - Court of Appeal. In a pithy yet brief decision, Madame Justice Deschamps stated:

We agree with Hoegg J.A., dissenting at the Court of Appeal, that the trial judge committed no reviewable error. Therefore, the appeal is allowed.

This innocuous manner of overturning a lower Court decision belies the true nature of the case as revealed by a closer reading of the lower Court decision. Indeed, through the lower court decision, T.L.M. takes on a more complex meaning and sheds light on another decision of the SCC, the D.A.I. case, released only four days previously.

The D.A.I. case is of huge national importance pronouncing on the capacity of adults with mental disabilities to testify at trial under s.16 of the Canada Evidence Act. Section 16 outlines the procedure to be adopted when an adult witness’s mental capacity to testify is challenged at trial. If the witness does not understand the nature of an oath or a solemn affirmation and cannot communicate the evidence, the witness cannot then testify. If however, the challenged witness does not understand the nature of an oath but can communicate his evidence, he may testify upon promising to tell the truth in accordance with s. 16(3). In the D.A.I. case the trial judge upon entering into an inquiry as required by s.16 found the 23 year-old witness, who had a mental capacity of a three to six year old, could not testify as she did not understand the duty to speak the truth.

The majority of the SCC, speaking through Chief Justice McLachlin, found the trial judge erred in her application of s.16 by requiring the witness to understand the meaning of telling the truth before being permitted to testify. Section 16(3) merely required the witness to be able to communicate the evidence as a prerequisite to testifying. Once this was fulfilled, the witness could then testify upon promising to tell the truth. There was no need for the trial judge to determine whether or not the witness understood what such a promise entailed. Thus, Chief Justice McLachlin’s decision gave this second part of the s. 16(3) determination, the promise to tell the truth, a broad and generous interpretation consistent with the public policy of the “need to bring to justice those who sexually abuse people of limited mental capacity — a vulnerable group all too easily exploited.”

The connection between these two cases, T.L.M. and D.A.I., is found in the appellate principle of deference, referred to in both decisions, but more specifically, as referred to by Justice Binnie and Chief Justice McLachlin.

The main issue in the T.L.M. appeal, as discussed in the lower Court decision, related to the admission of similar fact evidence in a trial involving sexual offences against a child. The similar fact evidence was of another sexual offence against a child, which occurred at the time of the offences before the court. The main issue was credibility, with the accused, the child’s uncle, denying the offence. The similar fact evidence, which was admitted by the trial judge, was relied upon in disbelieving the accused and convicting him of all charges.

The majority of the Newfoundland appellate court found the trial judge erred in his application of the legal test for admissibility of similar fact evidence. To come to this decision, the majority relied upon the principles for admission as enunciated by Justice Binnie in the SCC decision of R. v. Handy. The dissent of Mr. Justice Hoegg disagreed with the majority and found the trial judge made no legal error in admitting the similar fact evidence. Justice Hoegg also relied on Binnie J.’s decision in Handy and made especial reference to Justice Binnie's comments on the “substantial deference” to be given to the trial judge’s decision on admission of similar fact evidence. It is Hoegg’s dissent, which the SCC accepts in allowing the appeal. neither Justice Binnie nor Chief Justice McLachlin sat on the appeal.

Chief Justice McLachlin, in D.I.A., also commented on the principle of deference: an appellate principle in which the court reviewing the trial judge’s reasons defers or accepts the trial judge’s decision based on the judge’s superior position having heard and observed the evidence as opposed to the appellate court, which only reads the evidence and arguments in written form. In Chief Justice McLachlin’s opinion, the trial judge’s error was fundamental and therefore no deference should be given to her decision.

Justice Binnie in dissent, and no stranger to the issue of deference as pointed out in the Handy case, disagreed and stated the following:

The majority judgment in the present case repudiates the earlier jurisprudence and the balanced approach it achieved.  It entirely eliminates any inquiry into whether the potential witness has any “conception of any moral obligation to say what is ‘right’”. 

In the result, despite all the talk in our cases of the need to “defer” to trial judges on their assessment of mental capacity, a deference which, in my opinion, is manifestly appropriate, the majority judgment shows no deference to the views of the trial judge whatsoever and orders a new trial.  I am unable to agree.  I therefore dissent.

Justice Binnie’s very strongly worded dissent takes issue with the lack of conviction the majority has with the principle of deference: in other words, the Chief Justice and the other Justices concurring in her decision, do not “walk the walk” when it comes to deference. These incongruous comments on deference by the majority become even more incomprehensible in light of the oft-quoted Marquard case, involving testimonial capacity, in which Chief Justice McLachlin stated:

It has repeatedly been held that a large measure of deference is to be accorded to the trial judge's assessment of a child's capacity to testify.  Meticulous second‑guessing on appeal is to be eschewed.  As Dickson J. (as he then was) put it (at p. 135) in the oft‑cited case of R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), aff'd [1966] S.C.R. v, a trial judge's discretion in determining that a child is competent to testify "unless manifestly abused, should not be interfered with."

Justice Binnie relied on McLachlin C.J.’s Marquard decision in his dissent in D.A.I.

In the end, the deference issue may come down to this: appellate courts will give deference more readily when the trial judge admits evidence than when the trial judge finds evidence inadmissible. It appears at least in matters of admissibility the SCC prefers to give deference to the principle of admissibility over exclusion. Although this approach may recognize more readily the public’s desire to have a matter tried, it may do so at the cost of a fair trial.

 

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.

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.

 

Can Criminal Law Keep Up With The Digital World?

A mere ten years ago, we did not “google” or “friend” or “wiki.” Twenty years ago, we did not listen to music on an iPod or talk on a Blackberry. Back then we bought Kodak film and waited to view our photos. The next decade should prove to be even more progressive as we start to use “bio interfaces” to directly connect to the Internet, thereby cutting out the “middle-man” or, to be more accurate, the “middle-machine.” With the direct ability to connect with technology, we will also see more data interfaces with which to interpret data, such as Wolfram Alpha. The advances and changes in technology have indeed been incredible.

With these new technologies, there will be challenges. Not in terms of how well we will adapt to the new advances: history has shown humans to be great adapters to new environments. Our challenge will be how well our institutions will be able to adapt and respond to the rapid changes. It is this challenge of how the criminal law responds to the new digital age, which was the subject of the panel presentation at the recent Alberta Law Conference.

To discuss this pressing issue, the panel consisted of two prosecutors with an expertise in presenting digital evidence in criminal cases: Daniel Scanlan, a B.C. Crown Attorney and author of Digital Evidence In Criminal Law and Marc Cigana, presently prosecuting the Quebec Hell’s Angels case. The discussion was first framed in the privacy context through the realities of society’s paradigm shift away from a full and robust privacy protection network, where personal information is jealously guarded and access to it is restricted, to a society of informed by social media, where intimate details are publically revealed and dynamically transferred world wide in seconds.

It is this new paradigm, which has kept the courts, the lawmakers, and the advocates behind the “eight-ball” and has created a legal disconnect. Decisions are rendered on technology, which by the time of the decision is no longer in use, thereby making the decision useless. Similarly, any legislative response is outdated by the time of the enactment date. The result is a patchwork of case law, too specific to be of much use as a precedent and lacking the informational basis to become legal principle.

The solution was a call by the panel for a more principled approach to technology. Instead of approaching digital evidence on a case-by-case basis, the participants in the criminal justice system must look beyond the facts and provide the evidentiary basis needed for a meta-decision on the use of digital technology. Such a decision or principle would produce a more measured response by our criminal justice system to new technological advances, thus promoting just results congruent with our digital age.

As it stands, the Courts struggle to conceptualize the new technology’s place in the legal literature. A neat example is the determination of the validity of a warrantless search of a cell phone based on the presence or absence of a reasonable expectation of privacy. Instead of viewing cell phones, as cell phones, and thus as a new entity requiring a unique reasonable expectation of privacy determination, the Courts struggle to pigeonhole cell phones into known categories. Thus the Court asks: Is a cell phone like a notebook? Or is a cell phone like a purse? Or is a cell phone like a computer? Unsurprisingly, the answer differs from case-case and from province to Province, leaving the case law in flux.

What is the Supreme Court of Canada’s position in this conundrum? So far, they have not made any cohesive determination on the issue but there is hope they will enter the fray with the Telus case, which recently received leave to appeal to the Supreme Court of Canada pursuant to s.40 as an issue of national importance, without being heard at the Court of Appeal level. In Telus, the police used a general warrant under s.487 of the Criminal Code to seize Telus records of text messages from the accused’s cell phone. The difficulty was the warrant gave authority not only for the seizure of historical messages, already sent, but also for the seizure of messages as they were being generated. Telus took the position such a seizure was akin to an interception of electronic communication under Part VI of the Criminal Code, which required a wiretap authorization.

Unfortunately, the framing of the case appears to be inviting the pigeonhole approach: Are the text messages merely letters in transit or are they more like a private conversation over the telephone? Instead of focusing on the characterization, the Court should be focusing on crafting a judgment, which will set down the general legal principles to be followed when faced with digital technology in the criminal law.

How they will in fact approach the issue will determine whether the digital future can easily live within our traditional precepts or whether our criminal justice system is just too outdated to face the challenges of tomorrow.