Section 3 "For Convenience of Reference Only": Episode Three of the Ideablawg Podcast on the Canadian Criminal Code

The following is the text version of Episode Three of the Ideablawg Podcast on the Canadian Criminal Code. At the end of the text is the actual podcast or, better yet, download the podcast directly from iTunes by searching for ideablawg. Enjoy!

Today we are going to discuss section 3 of the Criminal Code, which is the last section under the interpretation heading. Last week we looked at sections 2 and 2.1, which were definitions of some, but not all, terms used in the Code. As I mentioned last week, the federal Interpretation Act applies to all federal statutes, and therefore the Criminal Code, as long as the provisions found in the Interpretation Act are not inconsistent with the specific statute. If there is a contrary intention, then, the Interpretation Act must give way and the provision found in the specific Act is the rule.

So, this puny interpretation segment in the Code is most definitely not the last word on how to interpret the Code. Indeed, besides legislative interpretation, which is what we are doing here, there is also judge-made interpretation found in case law. Today, we are going to look at case law in understanding section 3 because the puzzle is – what is the significance of this odd section and why, of all the statutory interpretation rules, it is here.

Let’s start with reading this section in order to get our bearings:

First the title of this section – which by the way does not form part of the section but is a way to identify and organize sections in the Code – is “descriptive cross-references.” Far from being “descriptive” this heading is not telling us much. The actual section 3 reads as follows:


Where, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parenthesis that are or purport to be descriptive of the subject-matter of the provision referred to, the words in parenthesis form no part of the provision in which they occur but shall be deemed to have been inserted for convenience of reference only.


By the way at the end of each section of the Code there is an odd phrase, in this case, “1976-77, c. 53, s. 2.” This phrase denotes the year the section was enacted, in this case 1976-77, and also the chapter number, c.53, of the amending statute with the section, S.2. When the actual amendment is integrated into the Code, the chapter and section number becomes meaningless but it is the year, which gives us valuable information. For example, the previous section, 2.1, which told us that the firearm definitions under s.84(1) apply throughout the Code, was placed in the Code in 2009. So, what we do know about section 3 is that it has been around for quite awhile.

 

Now getting back to the actual section. What does it mean? Good question. It is one of those sections I call “ugly sections,” which are difficult to understand and require multiple readings before you can glean the meaning. But upon re-reading, the meaning is quite clear: throughout the Code, there may be references to other sections of the Code or even other sections of another statute. There also may be, in parenthesis or brackets, a description of that referred to section following the section number. These parentheses descriptions, so section 3 suggests, may not be completely accurate as they merely act as signifiers of that particular section. Therefore, s. 3 warns the reader that if they do see a description in parenthesis following a section, that description is only there to give us a heads up on what the referred to section means and is not part of the Criminal Code. It’s just a “BTW,” or “By The Way” information for your “convenience of reference only.” Great, thanks for the caution, but that does not explain why, of all the various statutory interpretation rules there are, and there are many, this particular one is integrated into the Code.

Now let’s discuss statutory interpretation. This will be a very superficial discussion as such a talk could and does form a whole course, typically an optional course, offered in law school. “TBH” or “to be honest,” this kind of course should be mandatory for all law students considering the amount of time we all spend, no matter what area of law, reading and trying to understand statutes.

To explain statutory interpretation, I am actually going to go to case law and a recent Supreme Court of Canada criminal law case from 2012 called R v. Dineley. Mr. Dineley was charged with impaired driving and driving with a blood alcohol concentration over the legal limit. Due to amendments to the Criminal Code a particular defence, which permitted the accused to challenge the accuracy of the breathalyzer readings based on an expert’s toxicology report, called the Carter defence, was eliminated. This amendment happened during Mr. Dineley’s trial and his counsel argued that the amendment could not be applied retrospectively, according to rules of statutory interpretation, and therefore the Carter defence was still valid.

The trial judge agreed and acquitted Dineley but the Court of Appeal for Ontario disagreed and ordered a new trial. The Supreme Court of Canada in a split decision agreed with the trial judge, found the new amendment could not be applied retroactively and upheld the acquittal.

Despite this, I am going to take us to the dissent written by Mr. Justice Cromwell, who has an administrative law background and explains in this case what statutory interpretation does. I am going to read some excerpts of Justice Cromwell’s decision to help us:

He first says: “statutory interpretation aims to ascertain legislative intent…”.

Then, he states what is really the first principle of statutory interpretation:


The courts ascertain legislative intent by reading legislative language in context and in its grammatical and ordinary sense, harmoniously with the scheme and purpose of the legislation at issue...


And here is another fundamental interpretation principle: “When the legislator’s words permit it, the courts will take the legislature not to have intended to work injustice or unfairness.”

 

Hopefully, you get the idea: that the rules of statutory interpretation are supposed to not only help clarify what we read but also to bring us into the parliamentarian heart whereby we can see and feel the purpose of the framers of legislation in writing the Act. However, we are also not supposed to read too much into this intent, instead we should take a balanced approach, which I would suggest involves applying some good common sense. Conversely, in the United States, the concept has taken a life of its own when dealing with the Constitution through the doctrine of “original intent.” This principle has not gone without controversy but certainly the US Supreme Court is much more concerned with the original intent of the founding fathers than we are of the fathers of confederation. Be that as it may, statutory interpretation is a complex and at times, changing area of law.

This does lead us however to the Interpretation Act, which is chock-full of rules of interpretation and construction. It tells us, for example, that the law is “always speaking” meaning that a law may be fashioned in x year but it applies even if it is used in x + 50 years – as long as the law has not been repealed. It even explains the preambles we were discussing in podcast one: section 13 of the Interpretation Act states "The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object."

It does not however tell us what to do if we see words in parentheses. It does, in section 14, advise us that:


Marginal notes and references to former enactments that appear after the end of a section or other division in an enactment form no part of the enactment, but are inserted for convenience of reference only.


This sounds like a very similar caution to section 3 of the Code. So in the end section 3 is really only doing what section 14 of the Interpretation Act is doing, except in the Code parentheses are used. By the way, there are also marginal notes in the Code, such as those headings I have been referring to and which form no part of the actual statute but are just there for organizational purposes.

 

So where do we find these parentheses actually being used in the Code? Typically, where there is a list of offences such as in s. 231. This section sets out in what circumstances murder is classified, for parole ineligibility purposes, as first-degree. Section 231(5) lists the offences for which an offender, who causes the death of another, is found committing or attempting to commit will then be guilty of first-degree murder. For example s. 231(5)(e) states “section 279 (kidnapping and forcible confinement)”. The words in the parenthesis describe summarily the offence found under s. 279 and is there for “convenience of reference only.” In fact, case law suggests that to describe s. 279(2) as “forcible confinement” is inaccurate as the better description is “unlawful confinement.”

Thank you for joining me on this third podcast. Next week, we won’t be going too far as we discuss s. 3.1 of the Criminal Code. The section is a throwback to the interpretation segment but it falls under a completely new heading and is under the first Part of the Criminal CodePart I – called the “General” Part of the Code.

 

Episode Three of the ideablawg Podcast on the Canadian Criminal Code: Section 3 "For Your Convenience Only"

Let’s Talk About the Canadian Criminal Code: Episode Two Section 2 (and s. 2.1) - Definitions

Welcome to episode two of the Ideablawg Podcast entitled: Let’s Talk About the Canadian Criminal Code.

Last week we discussed the short but complete section 1 “naming section.” This week we will talk about its polar opposite: the hefty yet incomplete section 2.

As discussed in the last podcast, there is a method to the madness of writing legislation. Indeed the framework or structure of a statute is not whimsical but follows certain prescribed formats. These formats may differ slightly from statute to statute and from levels of government as we learned when we talked about preambles to an act as opposed to a purpose section found within a statute. But in essentials, statutes tend to look very similar.

One of these similarities is found in section 2 of the Criminal Code – found under the interpretation segment of the Code, entitled “definitions.” These words and phrases are definitions of key terms used within the Criminal Code.

Now I called this section hefty yet incomplete. Hefty, because this section 2, which is not broken down into subsections as other sections of the Code are, provides us with a long alphabetical list of words in which some terms are defined quite lengthily. In fact, there are 73 words listed under section 2 from “Act” to “Writing.” Of the 73, 2 are repealed: the term “feeble-minded person” was repealed in 1991 and “magistrate” in 1985 as these terms are no longer used in the Criminal Code. Of course, Canada no longer has any “magistrates” as they are now known as “provincial court judges.”

The term “feeble-minded person,” however, comes from the old rape provisions in the Criminal Code, namely s.148, and came into force through the 1922 Code amendments.   It is difficult to read this old section without cringing:

s. 148. Every male person who, under circumstances that do not amount to rape, has sexual intercourse with a female person

(a) who is not his wife, and

(b) who is and who he knows or has good reason to believe is feeble-minded, insane, or is an idiot or imbecile,

is guilty of an indictable offence and is liable to imprisonment for five years.

The term also applied when considering the old insanity defence under the now amended (as of 1991 there is no insanity defence but an offender may be found NCR or “not criminally responsible” as a result of a mental disorder) s.16 of the Criminal Code. Unlike the rape provisions, this term when used in the context of insanity, applied equally to men and women. Interestingly, in the 1984 Supreme Court of Canada decision, rendered a year before the term was repealed, Justice Dickson, as he then was, in the Ogg-Moss case, agreed that the term was “somewhat disturbing to modern sensibilities” but was really equivalent to saying “mentally retarded” or “developmentally handicapped.” Of course, both of those terms today are deemed completely inappropriate as well. The term “mental disability” is now the preferred adjective. There is still a sexual offence related to this: sexual exploitation of person with mental or physical disability under s.153.1 and it applies to both men and women, married or not.

Amazing that the term, “feeble-minded person,” was only repealed in 1985.

I also call out this so-called definition section as being incomplete. Incomplete, because not all words used in the Code are defined. This has a twofold significance: as not every word which we would like to be defined is defined and not every word which is defined is found under this section.

Let's tackle the first thought: not every word we would like to be defined is defined in the Criminal Code. As we ramble through the Code, we will be faced with some crimes for which some essential elements of the prohibited act are not defined for us. At this point our only recourse is to go to the case law. Case law produced, by judges, interpret statutes together with principles found in the common law and come up with legal interpretations or definitions of the words used.   If there is no case law on the word or phrase then a lawyer is forced to be creative and come up with a definition, which they hope the trial judge will accept. To be frank, the best starting point to do this is the dictionary. How is this word defined in Webster or Oxford? Then, how is it defined in case law? In other jurisdictions? And so on. To me this is the fun part of being a lawyer – when you can be part of the creation of the law.

An example would be the phrase “planned and deliberate” under s.231(2) of the Code, which is the section outlining when murder is deemed first-degree. The term is only important for sentencing classification and comes into play only after the Crown has proved beyond a reasonable doubt the intention required for murder as found under s.229. This phrase is not defined in the Code but is neatly defined in case law to mean the follows: planned - a scheme or design previously formed, and deliberate - considered and not impulsive.

Now the second thought: not every defined word is found under this section, tells us that there are other places in the Code where words are defined. For instance, there are definitions, as referred earlier, at the beginning of some Parts of the Code such as Part VI Invasion of Privacy.

There are also definitions found within sections of the Code such as the term “crime comic” under s.163(7).

Then there are the hidden gems such as the term “negligence,” an extremely important term as it signifies the level of intention required to commit an offence and is used for one of the most serious offences in the Code s.222(5)(b) manslaughter. Yet, “negligence” is defined only by reference to a title of a section. In section 436, entitled Arson By Negligence, a fairly recent offence in the Code from 1990, the actual section setting out the crime does not use the word “negligence” but instead defines it as follows:

“Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.”

“As a result of a marked departure from the standard of care that a reasonably prudent person would use” is the definition, found in case law, of criminal negligence. I leave it to you to decide if this is indeed a “hidden gem” or merely another example of the complexities of our Criminal Code.

So, in the end, section 2 is not only a list of some definitions but is also a list of what is not defined in the Criminal Code.

 But of course it is not that simple.

For example, let’s look at a recent definition added to section 2 – “justice system participant.” The definition is a list of very specific categories of people who come under this term, such as under

(a) “a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council.”

Caution is required, however, as the definition is also very broad: under (b) it is also

“a person who plays a role in the administration of criminal justice.”

The definition does go on to list examples, but clearly this definition is not exhaustive. Imagine if we went to the dictionary for a definition of a word and it said etc, etc, etc.. Not overly helpful is it – so again we are down to case law and a possible argument in court in order to define the definitions and give them boundaries.

Before I close, I would like to discuss s. 2.1, which is a new section added in 2009. This section also provides us with definitions; in fact it is entitled “further definitions – firearms.” Okay, so instead of amending section 2, the government simply added a section 2.1 with firearm specific definitions.

Well, no not really.

Section 2.1 merely points us to the place where the listed terms are actually defined. The section lists words such as “ammunition” and “replica firearm” and tells us that those listed words have the same meaning as in s. 84(1). If we go to s. 84(1), we see a section defining a number of terms, including the ones listed under s. 2.1. This s. 84(1) is in fact the definition section for Part III of the Code on Firearms and Other Weapons. As mentioned earlier a Part may start with definitions of words found within the particular Part. Certainly, there are no definitions in the Code, which contradict, meaning there are no definitions of a term for one Part of the Code and then a different definition for the exact same term in another Part. So why did the government add this s. 2.1? For clarification? For extra emphasis? Why?

Well, in my view, Section 2.1 instead of clarifying actually does the reverse as it leaves the impression that if the word is only defined under a particular Part, that does not necessarily mean that word, if found elsewhere, has the same meaning.

And to make us even more confused, there is a federal statute with definitions, which apply to all federal legislation, as long as it is consistent with that legislation, called the Interpretation Act.

Now that’s confusion for you, that’s the Criminal Code for you, and that is the podcast for this week.

Next week we will discuss this Interpretation Act a bit more when we look at the last of the interpretation sections in the Code: section 3

Please note: This is the text of the Episode Two of my podcast. I do not have the audio file attached but will be sending out the actual podcast in a separate file.

THOUGHTS ON THE INTERSECTION OF LAW AND ART: LEGAL ARCHITECTURE

I recently read a compilation of essays, in a work from an outstanding publishing house Sternberg Press, Thousand Eyes: Media Technology, Law and Aesthetics, on the connection between contemporary art and law, particularly courts of law, where the art theory concept of “representation” and the physical and legal attributes of law intersect through the courtroom. From that connection the comparative analyses are many and varied: the courtroom as theatre, evidence as iconoclastic images, and the changing role of new media. But what struck me was the concept of the law court as a bounded space, which reinforces the separateness of the law world from the real world.

In his essay In Between: Power and Procedure Where the Court meets the Public Sphere, Richard Mohr observes the fixity of our courts within a self-constructed bounded space and the resultant tension between those inside, the legal players, and those outside, the public. He argues this border between the two is not just physical but conceptual as well. Not only does the courtroom have a fixed address with an enclosed space but the rules or procedures too emphasis closure through the rules of evidence, which permit only certain forms of approved facts into its space. This closing off of the law not only impacts public access but also public perception.

Other essays in the collection go further and suggest the advent of new media and the relaxation of media in the courtroom has expanded the courtroom walls and changed the static concept of law. However, one of the editors, Judy Radul for whom the essays were published to celebrate her World Rehearsal Court exhibition, in her essay, Video Chamber, argues to the contrary: in her view, the ability of the courts to be connected elsewhere through, for example, CCTV, makes the court an even more enclosed space “monolithic and unmovable” as the court hunkers down, forever fixed in place, as the images come to it.

The legal architecture then becomes an impactful aspect of the law, particularly in light of the access to justice issues Canada has been recently facing. It may also impact how the Supreme Court of Canada view evidentiary rules: should they unbind the courtroom or provide further enclosure?

The connections between art and law may, at first glance, appear superficial: yes, the lawyers are like actors in a Shakespearean play, albeit their backs are usually to the audience. However, when viewed through the lens of art theory, the representational force of the law cannot be doubted. This is something to think about when arguing in the bounded space of the law.

 

 

 

 

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

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

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

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

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

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

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

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

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

 

Is The Law Round?

Neil Degrasse-Tyson is an American astrophysicist who is also a cult hero. His books, written for the layman, are extremely popular and readable. He has almost a million followers on Twitter. The Imaginary Foundation, an experimental research think tank, which also hosts a website and blog where they post cool ideas, has multiple postings on Degrasse-Tyson. There is even a magical video as part of the Symphony of Science series where one of Degrasse-Tyson’s lectures is to put to music.  In short, he rocks. His lecture series, which I have had the opportunity to watch, are informative, interesting, and hilarious. He is above all thought provoking and the lecture I recently watched on “On Being Round,” started me thinking about the connection between “being round” and the law.

“Being round” is such an important concept in our physical world because all objects want to be round. Being in a state of roundness is being in the most efficient shape as it provides the largest surface area for an object. It is, in other words, the natural shape for an object. Rain, is spherical as it falls from the sky. Our stars, planets, and even the observable Universe are round. However, other forces, such as gravity, may squash the sphere either a little, like our earth to make it more an oval shape, or completely, like our flattened solar system. Either way it is the circle shape that is the most natural and most sought after shape.

So applying this premise, I ask is the law round? In many ways the law is, particularly if you consider that roundness means that two ends meet to complete an object or an event. Certainly in the civil context, usually the best-case scenario is where the parties come to an agreement before a trial of a matter. This is the most efficient and equitable outcome.

There is also continuity and stability with roundness. The rule of law is in place to provide a familiar and thus stable form of discourse in society: we all understand what a stop sign means and we all have the same expectations when we see it. However, despite this, there are times when people do not act as the rule of law dictates. In these instances, the bubble bursts and the completeness of the law seems to be imperfect. Like the forces of gravity causing our planet to bulge in the middle and therefore deviate from the perfect spherical shape, the law must provide an outlet or a mechanism for those situations when the perfectness of the law is broken. Criminal law attempts to provide another set of rules for those instances, perhaps making the law more elliptical in shape than perfectly round.

There is one instance in the criminal law, where roundness is everything: the sentencing circle. The sentencing circle is an innovative sentencing practice, which arose out of the need to provide a more meaningful and relevant outcome to criminal offences for the Aboriginal community. Our criminal law, based in English common law, imposes sentences based on traditional sentencing concepts such as deterrence, retribution, and rehabilitation. These concepts are decidedly based on Western ideals and do not accommodate differing cultural practices. This rigidity translated into a disproportionate amount of Aboriginals in the criminal justice system, resulting in a disproportionate number of Aboriginals serving jail sentences. It was clear that the traditional precepts of the criminal law did not resonate with the Aboriginal community. It was equally clear that the adversarial system so entrenched in our criminal law was part of the problem. This conflict-oriented system was at odds with the Aboriginal values of community and collective respect. The idea of a sentencing circle embraced the concept of reconciliation and collaboration requiring the input of the community, not just the judge and case law, in crafting an appropriate, and hopefully rehabilitative, sentence. Thus the “round-table” becomes part of the criminal law nomenclature.

Unfortunately, unlike nature, “being round” does not guarantee success. According to the 2011-2012 Annual Report of the Office of the Correctional Investigator, released by Howard Sapers, the number of Aboriginal offenders in the penitentiary system has increased. In fact, over the past ten years the Aboriginal inmate population has increased by 37.3% and although only 4% of the Canadian population is Aboriginal, 21.4% of the penitentiary population is Aboriginal. Although, sentencing circles are not typically used for the most serious offences and this could explain why the numbers in the penitentiary system are still high. However, this does not mean that alternatives to traditional criminal law do not work. Indeed, to “think outside of the box” and to be open to different legal solutions, may in fact, make the law more transparent, more equitable, more efficient, more impactful, and well, more round.

Touching On The Biographical Core of Personal Information: The Supreme Court of Canada’s Decision in Cole

As soon as the Supreme Court of Canada issued the Cole case, I went to the website to read it. Initially, I was drawn to the case hoping to find further clarification and the “filling in,” so to speak, of the legal principle of “reasonable expectation of privacy.” As with so many phrases used in law, legal interpretation is required to give the terms a more robust character and to solidify the meaning so that the mere hearing of the term conjures up the correct legal principle or the proper connections to be made between case law and precedents. The term of “reasonable expectation of privacy” is one of those terms which requires this incremental corporeality in order to make the law more certain. This is particularly needed in the Charter universe where heady terms like “Liberty” and “Freedom”, which by the way are not synonymous according to Chief Justice Dickson in the Edwards Books and Arts case, delineate the parameters of our Charter rights.

Certainly, the Supreme Court of Canada did not disappoint in the Cole decision, as they “filled in” the term in relation to the work place. In doing so, the court answered the question of whether or not there is a line drawn between personal and work and if so, where that line can and should be drawn. Of course, the judgment is not so practical as to suggest the exact place in which the line rests, but it does serve as a guideline for the employer-employee relationship. This posting, however, will not be a critical legal analysis of the judgment in relation to the answer provided by the court. Instead, this posting focuses on one paragraph, indeed the second paragraph of the majority judgment written by Justice Fish.

The second paragraph reads as follows:

Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

Two concepts found in this paragraph hold my interest. The first is the striking way in which the court defined the personal information found on a computer as “meaningful, intimate, and touching on the user’s biographical core.” Interestingly, this description, which does not refer to any previous case law, does, on a close reading, come from two earlier Supreme Court of Canada cases, which although are related to reasonable expectation of privacy in a search and seizure context, are not related to information found on a computer.

The first is the 2004 Supreme Court of Canada case, R v Tessling. This case is familiar to most criminal lawyers faced with an unreasonable search and seizure or section 8 challenge. Tessling involved the use by the RCMP of FLIR or forward looking infra-red technology. In this instance, the RCMP employed a FLIR camera on an overflight of property, which revealed infra-red images of the emission of heat radiating from the suspect property. The abnormally large amount of heat radiating from the observed property, together with informant information, resulted in the issuance of a search warrant. Police found on the property a large quantity of marijuana and weapons. Counsel at trial argued the overflight using the FLIR camera was an unreasonable search and seizure. The trial judge disagreed and the accused was convicted. However, the Court of Appeal for Ontario reversed the decision, finding there was a violation of s.8 and the evidence was excluded under s.24(2) of the Charter.

The Supreme Court of Canada, through the unanimous decision written by Justice Binnie (an Ontario appointment), did not agree with the provincial appellate court. They did agree that the ability to be free from state action while at our home (as in "the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604)), unless there was prior judicial authorization to do so, was of paramount importance. Justice Binnie discussed how this concept of territorial privacy of the home has expanded to the protection of the bodily integrity of the person through the protection of the privacy of being at home. Thus, being at home suggests, “being the place where our most intimate and private activities are most likely to take place.” It is these activities, which the Charter must zealously safeguard.

In the end, the FLIR camera, revealing only heat images, did not step into the private refuge of the home. Equally, the camera did not step into the “intimate and private” activities, which are core to personal integrity and self-identity of a person as a human being.

Another issue discussed by Justice Binnie in Tessling, brings us to the second Supreme Court of Canada case to characterize personal information as “meaningful, intimate, and touching on the user’s biographical core.” According to Justice Binnie, the difficult decision was where to draw the line: at what point does the state over step their authority and wander improperly and, more importantly, unreasonably into the private lives of an individual. This too was the issue with which the Court struggled to understand in Cole.

To answer this, Justice Binnie turned to Justice Sopinka’s words in R v Plant (1993), another unreasonable search and seizure case involving a warrantless perimeter search of a dwelling house. Justice Sopinka, in starting from the underlying values of the Charter of “dignity, integrity, and autonomy,” found it an intellectually easy journey that

s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (Emphasis in bold added)

Thus, it is out of a nuanced discussion on the privacy of the home, which expanded the concept of the “home as our castle” metaphor to another metaphor found in the idiom “home is where the heart is,” suggesting that it is not the structure that reflects who we are but what is inside – the people and the thoughts we leave behind.

As an aside, the 2011 Saskatchewan Court of Appeal in R v Trapp, which is also a child pornography matter considering the “reasonable expectation of privacy”, utilized these cases in determining the legality of the seizure of information from the accused’s internet service provider. In fact, Justice Cameron, speaking for the court, reviewed this seizure

to identify the import or quality of this information, having regard for the principle that section 8 protects a biographical core of personal information, including information tending to reveal intimate details of the lifestyle and personal choices of the individual.(Emphasis added)

Such an analysis lead the court to conclude that the seizure of the information was not contrary to the Charter.

This brings me to the second point arising from this short second paragraph written by Justice Fish. The finding in Cole not only “fills in” the term “reasonable expectation of privacy” but also “fills in” or further defines the Supreme Court of Canada’s interpretation of the Charter; the concept that the Charter reflects the underlying fundamental values of our society. The Cole decision merely continues the line of cases, which embrace the idea that Charter values, not necessarily concrete or corporeal Charter terms, lend meaning to Charter rights. Thus, it is the concept of “meaningful, intimate, and touching on the user’s biographical core,” coming from Charter values, which delineates the line of reasonableness.

Now back to the Cole case and the further expansion of personal information, as protected by Charter values, to personal information contained on a computer hard drive. Now, the private world of an individual’s has shrunk from the home as the container of our most intimate and meaningful thoughts to the nano-world of computers. Like a diary, the computer captures a timeline of who we are and who we want to be: our desires, our dreams, and our inner most thoughts. Recognizing this decision is truly a further “filling in” of Charter values helps us understand this decision more thoroughly and causes us to consider what will be next. Perhaps the intimacy of details on Facebook and other such sites will prove to attract more protection than initially thought. In any event, it is clear that the sanctity of the home has become the sanctity of the hard drive.

“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.

War Crimes: Canadian and International Milestones

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

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

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

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

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

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

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

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

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

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

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

 

Blogs As Graffiti? Using Analogy and Metaphor in Case Law

Legal reasoning requires the decision-maker to use both factual and legal analogies and precedents. Legal precedent provides a solid foundation for a decision as it is based upon an earlier decision, typically from a superior level of court, made in the same circumstances to the one being decided. Analogy is a much subtler concept, involving similarities between the two situations. Analogy, therefore, requires an analytical dissection of the two circumstances to find comparables. The beauty of analogy is not only in the similarities, but in the dissimilarities as well: oftentimes it is the distinctions between the cases that matter. Although there are a set of principles and rules to assist in the appropriate use of precedent and analogies, courts have also used metaphoric language to come to legal conclusions.

A metaphor “expresses the unfamiliar in terms of the familiar.” A connection is therefore made between seemingly unconnected objects with the happy result of revealing the objects true and very real similarities. Metaphors are rich and varied and a very compelling way of defining an object or concept. Advertising uses metaphors the best: for example, the “life is a journey” concept “flies” well when considering travel options. As a subset of metaphor is the language technique of “simile,” whereby the comparison between the two objects is proffered more directly by suggesting one object is like another. A simile such as “this fog is like pea soup” conjures up an immediate physical description of the fog, which transcends describing the fog as merely “dense.” But how useful is the use of figures of speech in case law? Is it a  “good fit” (using a tailor metaphor) with the legal principles of precedent and analogy?

Let’s look at a recent example. On March 2, 2012 the UK High Court in considering the issue of defamatory blog comments in Tamiz v Google Inc Google UK Ltd, found Google Inc., the provider of the blog platform, not responsible for the clearly defamatory comments. Justice Eddy came to the conclusion using a “wall covered in graffiti” analogy: Google is like the owner of a building and the defamatory comments are like graffiti placed on the external wall of the building. Just as the owner of the wall is not responsible for the content of the graffiti, Google, as the mere provider of the “space” in which the comments were made, is not responsible for the content of the blogs. Justice Eddy recognized that the owner of the wall or “internet space” may, once the graffiti or comments are made, remove or “whitewash” (do I sense another metaphor here? Whitewash as in censorship perhaps?) the comments. As stated by Eddy J., “That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.”

This colourful and powerful analogy, although not truly a legal analogy, becomes the defining moment of this case. Google Inc. is then “cut” (sorry another tailor metaphor) from the case. But as compelling as this analogy is, the question still remains whether this is sound reasoning; sound enough to extricate Google from a lawsuit?

Let’s delve deeper into this analogy: Google provides the wall. Using the analogy to its fullest, Google doesn’t just provide the wall; Google owns the wall - as in the owner of the building with the graffiti sprayed on it. Taking this analogy further, Google owns the wall, which is then provided to others, bloggers, for their use. But the owner of the building does not “provide” the graffiti makers with a wall to spray. In fact, the graffiti on the wall is there without the consent of the owner.

Furthermore, the owner of the wall does have responsibilities to, as Justice Eddy so eloquently put it, “whitewash” or remove the offending marks. Not to do so, is usually in contravention of a City by-law, making the provider of the wall responsible for removal of the comments. Is that not the issue really in this defamation case? Removal of the comments is what is at the core of the lawsuit. Removal, which if it is not done in a timely fashion, does implicitly suggest the owner “likes” (as in Facebook “likes” if you need a metaphor) the comments.

The recent, Supreme Court of Canada case, Crookes v. Newton, is another slight twist on the provider as publisher conundrum. Newton, as the owner and operator of a website, provided hyperlinks to other Internet material, one such link contained defamatory comments regarding Crookes. The majority of the SCC, was careful to “contain” (yes, another building metaphor) the argument to the issue of hyperlinks as a form of expression and not as a form of publication. To hyperlink is not to “like” or approve of the linked material – it is merely to extend the research to another document and provide the reader with another source of information, which the reader can then access or not, and agree with or not.

To come to this conclusion the majority used good old fashion legal precedent and legal analogy based on case law. However, the generous use of metaphor assisted in creating a more compelling argument. In dismissing the Crookes publication argument, Justice Abella used the space or size metaphor to visually describe the spatially immense implications of “broadening” the meaning of publication in the circumstances of the case. Movement metaphor was also used to discuss the “innocent dissemination” exception as passive – almost robotic, without thought or action. The most powerful metaphor by far was the crux of the case as “hyperlinking is referencing”; a print metaphor, using visions of University research papers and academic writing. Then, to give the argument further weight (metaphor), Charter values are brought into the discussion with the caution against restricting the “flow” of information – a movement metaphor and a water metaphor.

The above illustrates an excellent use of legal principles and figures of speech to arrive (journey metaphor) at a cogent argument that has “legs.” This is another movement metaphor that implies the argument is not only a successful one but also a decision that will “achieve strong audience acceptance or interest.”

Which brings me back to the analogy in Tamiz and the dual difficulties found in that decision. The case highlights the difficulty in using analogy or figure of speech to enhance the already cogent legal analogy or precedent. It also shows the care which must be used in using figures of speech to make a point: if so used, the analogy or metaphor must logically connect the two objects as any fallacy arising from the connection will most certainly detract from the argument or finding.

We use metaphor constantly in making sense of the world around us. I highly recommend the book “Metaphors We Live By” written by the linguist George Lakoff and philosopher Mark Johnson for further reading on this fascinating subject. As a result of this seminal book, there is now a whole area of legal jurisprudence on the use of metaphor in legal reasoning (see also publications by professor Steven Winter). Being aware of this human penchant for metaphor and connection does provide another analytical tool (a device or work metaphor using the mind as physically embodied in the hands using a tool) to enhance our reading of legal text. It also provides us with a different view of legal argument and how that argument is communicated through case law.

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.

 

Reading The Riot Act

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

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

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

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

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

Although the Riot Act was finally repealed in 1973, the Canadian offences of unlawful assembly and riot, under sections 63 and 64 of the Criminal Code respectively, are a distant reminder of the original crime. Instead of twelve people “unlawfully, riotously, and tumultuously” assembled, the Canadian counterpart, unlawful assembly under s. 63, requires three or more persons “with intent to carry out any common purpose” who:

cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

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

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

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

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society and Justice Gonthier’s comments on the importance of limits, provided by clear language, which delineate our laws and permit legal debate. However, language provides boundaries only and are mere guidelines as stated by Justice Gonthier in the following passage:

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

With guidelines comes context and in the end, the court found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly,” which connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to old England and the Riot Act.

Thus, as they say, what goes around comes around and what was once a crime is still a crime. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration and bon ami.

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

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

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

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

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

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

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

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

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

 

 

 

 

 

The Presumption of Innocence: The Making of a Principle

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

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

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

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

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

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

Bleak House And The Court of Chancery

My legally minded book choice to re-read this holiday break is Bleak House by Charles Dickens. In Bleak House, the courts are more than a backdrop to the story but the elemental building blocks of the story’s structure. The opening chapter tells all as the Court of Chancery obscures characters in its process and procedure. The Court is thus cast as the arch-nemesis of all.

Dickens published Bleak House in installments in 1852 to 1853. The novel reflects the English Court of Chancery as it was in the 1800s. This was a Court of Equity, originally the court of redress for those who could not find legal remedies in the common law system. An English equivalent to the American Judge Judy. The Lord High Chancellor created the court in the 1500s after years of serving as the King’s delegate in deciding citizens’ petitions to the King. See the English National Archives website for a review of ancient petitions from the time of Henry III to James I. Shakespeare’s Will is also available on this website. Also peruse Chancery decisions online from 1606.

The rule of law in Chancery was that of equity and fairness, not of the rule of law. As depicted in the novel, by the time of Bleak House the Chancery Court was awash in deadlock (a pun on Bleak House) and inequities. Cases before that court took many years to come to fruition and, as in Bleak House, more often than naught would come to an ignominious end as lawyers’ fees dissipated whatever ‘equity’ remained in the case.

Presently, the Court of Chancery is part of the English High Court of Justice. There are still Chancery courts found in some jurisdictions of the United States, such as Delaware. So too Canada had a Court of Chancery, which merged with common law courts in 1881.

A prime example of an English Chancery Court decision can be found in Fletcher v. Fletcher from 1844. Jacob Fletcher filed the lawsuit as the “natural” or illegitimate son of the testator, Ellis Fletcher, for the large sum of 60,000 pounds. Ellis died ten years earlier but the document establishing this claim was not uncovered until much later. Indeed, the claim was found wrapped up in a “brown paper parcel” and in the personal papers of the deceased. The defendants in the suit are the “infant children” of the deceased and supposedly legitimate. The Vice-Chancellor, however, finds in favour of Jacob.

Although the case does not have the drama of Jarndyce vs. Jarndyce, it does have the elements of intrigue and heartbreak. Every lawsuit is a story and a narrative of the past. From law to literature as a reported decision comes to life in the pages of Bleak House!

Another alternative is to watch the outstanding rendition of Bleak House as presented by PBS on Masterpiece Theatre. Canadian actress, Gillian Anderson, is sublime in her role as Lady Dedlock. The direction and cinematography is uniquely modern, yet holds true to the period piece genre.

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

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

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

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

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

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

Longreads For the Holidays

The holidays is a perfect time to indulge in a book or a longread. In Twitter nomenclature, a longread is an online article which will typically take longer than the usual five minutes or less one might spend reading a web page. There is a good reason searching the internet is called "surfing": one doesn't want to spend too much time on that big wave. It will either peter out and disappoint or it will come crashing down and inundate us.

In any event, the following is a list of 5 longreads I found:

1.Karyn McCluskey: the woman who took on Glasgow's gangsThis is an article of one person's fight to find peace in a turbulent City. Karyn McCluskey, a former nurse, forensic psychologist, and head of intelligence analysis for Glasgow, turned the City's gang mentality around by understanding how violence worked "like an infectious disease" and beget "recreational violence," which in turn created the City's gang mentality. Through the use of a Boston-based initiative called "focused deterrence strategy," the scheme couples zero tolerance with, what I can only describe as, an intense collective "scared straight" program. 

2. Sleep Disorders Common Among Cops: Study Fascinating longread of a study which indicates 40% of police officers in North America suffer from sleep disorders, which may impair their judgment and reaction time. The actual journal article from JAMA is for purchase only but the Abstract is here. There is also a companion author video here.

3. A Guide to the Occupy Wall Street API There is so much out there on the Occupy movement but this longread puts an apt API spin on it. 

4. Armenian Genocide Articles: I have connected some short read articles on the Armenian genocide issue, which has been re-ignited by the recent French Bill criminalizing denial of the World War I massacre. The incredible reach of this issue makes these connections even more fascinating but the real issue of the massacre is what makes world politics disturbing. Read the articles here, here, here, here, and finally for an article on how art connects to life: here.

5. Who Owns The Words? This is from 2010 but a very relevant longread, Texts Without Context. This is a book review of Reality Hunger, a "book" by David Sheilds. The book is a compilation of excerpts of other writer's works, which are at times manipulated or micro-managed to suit Sheilds's intent. Many of the quotes are taken out of context and as such, become, through a fresh reading of the words, imbued with a new meaning. In this way, Sheilds makes these words his own. Two connections come to mind for me: Stanley Fish's Is There A Text In This Class? and the use of music sampling and remixing in hip-hop and dubstep.

So kick back and relax this weekend with some #longreads or better yet, find some for yourself! As Sir Arthur Conan Doyle wrote as Sherlock Holmes: "What one man can invent, another can discover."

 

Connecting Hitchens, Havel, And Kim With Human Rights

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

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

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

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

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

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

Chalk one up for humanity in this week of reflection.

Famous (Legal) Battles of Ideas

In yesterday's post on the anniversary of the first flight, I commented on the patent infringement suits between the Wright brothers and Glenn Curtiss, which essentially ended in a "draw," so to speak, as the corporate legacies of both, merged to form the Curtiss-Wright Corporation.

But such arguments over "who's on first," is, unfortunately, common to the arena of ideas. As famous as the invention of the airplane is, the invention of the telephone as a form of mass communication has had an even greater impact on the world's social and political structure. Yet here too was a legal battle over who intellectualized first. Although Alexander Graham Bell, in 1876, patented his electronic speech transmitter first, Elisha Grey, patented his "new art of transmitting vocal sounds telegraphically" only hours later. The ensuing patent suit ended with Bell's victory, which explains why we receive monthly bills from Bell Canada and not Grey Telephone Co. 

The patent concept arose from the written granting of rights and privileges by the monarchy under royal seal. Thus, the Latin "litterae patentes" means "open letter." The Venetian glass-makers of Renaissance Italy informally made use of this patent system. Thus, the first recorded patent in 1449 England was a patent for a glass-making technique.

Although I could not find an estimate of the number of patent law suits to date, a new study suggests the financial costs, in the past four years in the USA, have risen to $83 billion per year. In August 2011 alone, there were 294 patent lawsuits in the USA. According to some critics, we are experiencing a "patent bubble," with most major intellectual corporations involved in multiple patent suits. For example, Apple is embroiled in 97 "open patent" cases alone.

These "battles of ideas" span time, place, and area of expertise. The obvious conflicts come from the inventors: Thomas Edison was involved in multiple patent suits. In the gaming arena, the legal battle over Tetris was as epic as the game. The Zuckerberg vs. Winkervoss and Winkervoss (or Winkervii) battle spawned a movie. The Newton and Leibniz argument over Calculus, still rages today. 

Such arguments have spilled over into the Arts as well. Jeff Koons has been both the initiator and defender of artistic copyright suits. Stephen Joyce, James Joyce's grandson, has scrupulously, some say miserly, restricted the use of his grandfather's writings. Although June 2012 sees the end of his copyright fiefdom, the repercussions of his aggressive stance has caused no end of intellectual difficulties.

Musically, legal accusations abound. In a recent U.S Supreme Court argument on the limits of copyright legislation, Chief Justice Roberts reminded the Court of Jimi Hendrix and his famous rendition of the "Star Spangled Banner." In response to the government's support of the new legislation, Roberts commented on Hendrix when he stated "assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?" 

Finally, we must come full-circle, as I am wont to do, and mention the penultimate legal battle of ideas: the Scopes Monkey Trial, famously depicted in the play/movie Inherit The Wind and upon which I have blogged previously. The clash of beliefs as represented by the Scopes case and still on-going today, is a real testament to how dearly we as individuals, and as society, hold onto our ideals and ideas.

Which makes one wonder: Is there a patent for that?

 

 

 

 

The Sixty Day Review: Occupy Canada and Impaired Driving Alberta

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

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

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

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

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

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

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

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

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

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

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

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

 

Follow Up Connections: Human Rights, Science, and Literature

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

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

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

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

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

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