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

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

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

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

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

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

The appeal is allowed, and the convictions are restored.

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

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

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

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

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

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

 

Kienapple to Jordan: Some Thoughts on How Cases Become Icons

It is mid-August and I am busily writing a paper on W(D). Instantly, all criminal lawyers nod their head. Just the evocation of those initials recalls the penultimate paragraph of Justice Cory where he sets out the “ideally, appropriate instructions on the issue of credibility” and imprints, in words and in precedent, the trial judge’s obligation to assess credibility as an aspect of the presumption of innocence and consistent with the burden and standard of proof in a criminal case. Unsurprisingly, this “idealism” became “the law,” so to speak, as judge’s have taken Justice Cory’s words to heart resulting in over 9000 case citations (CanLii has 8590 mentions to date, while Westlaw finds 9, 133) of W(D) since its release in 1991. The case initials, W(D), have essentially become a constant reminder of the duty of a trial judge in a criminal trial. This transformation from case to icon, is not just about words and precedent, but is about something much more profound. Those two initials, like the madeleine savoured by Marcel Proust in Remembrance of Things Past, conjures up images of the “ideal” democratic society imbued with our principles of fundamental justice, of the impartial and independent trial judge as the gatekeeper extraordinaire, and as a symbol of our “community sense of justice.” Now that’s a heavy burden for one case! Yet, I would suggest, that W(D) does not stand alone in this iconography or more accurately, semiotic state (Umberto Eco, A Theory of Semiotics). Why or how a case attains this status is, I think, an interesting exercise for us to enter into as a different way to understand the development of law and precedent.

First, an admission. I came to this idea from some non-legal reading. Martin Kemp, an art historian and Leonardo Da Vinci “specialist,” not the Martin Kemp who was the bassist for Spandau Ballet, is an engaging and fascinating writer. His authorship glides over the orthodox as in The Oxford History of Western Art, but also wanders into the fringes in The Science of Art: Optical Themes in Western Art from Brunelleschi to Seaurat. His book, Christ to Coke: How Image Becomes Icon, runs through various obvious choices in this image/icon transmutation such as the Coke bottle and E = mc2 but also some non-traditional icons arising from photographic imagery such as the Pulitzer Prize winning photo by Nick Ut of the Vietnamese children running from the napalm blast on June 8, 1972. Although a reading and viewing of this book reveals the many and varied pathways to “stardom” or icon status, it also highlights the element these images share: the ubiquitous-ness of the image in the public psyche. As with Proust’s madeleine, the visual becomes a short hand for an avalanche of memories, facts and emotions. This is one time when a popularity contest works.

So how does all of this translate in the dicta of case law? Those cases which, at the same time are more than their name whilst being represented by just their name, become a short hand or an abbreviation for the case itself. I say, “for the case itself” as these cases go beyond the traditional ratio decidendi of the case and can encapsulate the implementation of that rule of law such as an in-court procedure employed to engage the issues raised in the case as in the Corbett application or as in W(D) an instruction or even more evocative, as a warning such as in Vetrovec. Highest status goes to those cases which become “grammarized” as verbs. Thus, a conviction can be “Kienappled” as referenced by imminent criminal defence lawyer, Alan Gold, at page 302 of his commentary "Appeal Courts - Jurisdiction" in the 1990, Volume 32 Criminal Law Quarterly. Sometimes, grammar changes – instead of a case being “Askoved” (see Alison Hatch Cunningham, North of the 49th Parallel: The Criminal Justice System of Canada, 13 Crim. Just. 21, 27 (1998)), we now, a year after its release, speak of a case being “Jordaned” (see Kelly Egan’s article online from April 28, 2017, Justice ministers focus on five areas to cut court delays). This grammatical construction is also akin to the vocative case in Latin where language directly “calls out” a subject of a sentence, usually done with a judicious use of an exclamation mark. Finally, the “iconizing” of a decision can make what is inanimate an animated object such as the “KGB statement.”

From case to icon means that the dicta or words found in the case are compressed or squeezed into the case name and become part of the verbal lawyerly language we employ in court, in discussions within our profession, and even in the advice we give our clients. Why these particular cases have such impact and such iconic status is a difficult question to answer but may be a result of their instrumentality or even more controversially, their weaponization, as cases which lead to determinative action such as in the Corbett application or as in the Askoved case. Their staying power may also rest on their dual status as used in both the bounded space of the courtroom and the boundless space of social media. As mentioned earlier, icon status also suggests a case meaning which transcends the obvious ratio and implies meaning which touches the inner core of societal ethos.

In a broader view, this inclination for iconography is also about the significance of naming in our society or more accurately our penchant for labelling, categorizing and listing. It leads us to ponder on the purpose of this short hand – are we cutting away too deeply by employing this “sound bite” approach or are we making law more accessible by promoting seminal and pivotal cases into everyday nomenclature? This concept of legal iconography also leads to further speculation on the role of the visual in law and one of my interests in visual jurisprudence as studied by the legal visual theorists, Peter Goodrich at Cardoza School of Law and Richard Sherwin, Director of the Visual Persuasion Project at New York Law School. It finally leads us to even broader considerations of access to justice and the kind of “human-centered design” we must be open to in the next generation of law iconography.  

W(D) is a case but it is more than that but what more it is, I am determined to find out!

 

On First Looking At the New Code Amendments (with thanks to Keats for the title)

In March of 2017, the federal government renewed its commitment to modernize the Criminal Code by tabling legislation to repeal the so-called “Zombie” laws – a term coined by Professor Peter Sankoff to denote those criminal laws that are the “walking dead” of the Criminal Code – still on the books but deemed unconstitutional. Although a step in the right direction, this announcement seemed like a “no brainer.” It also just happens to be consistent with the mandate letter, sent by the Prime Minister to the Minster of Justice, admonishing the Minister to uphold the Constitution and respect the Charter.

Besides repealing the unconstitutional sections, the list of problems with the Criminal Code remains. This list is, well, longer than the Code should you desire to place each page side by side. With well over 849 sections (considering the “accordion” sections whereby the government folded in between sections, other sections, such as the 33 sections residing between s. 487 and s. 488: for further information read my blog entitled The Infinite Lists of The Law), the Code is a statutory behemoth, a virtual cornucopia of delights including archaic laws such as the rarely used forcible detainer at s. 72(2)) jumbled with brand new crimes, once considered regulatory offences, such as the new offence (circa 2014) of selling unpackaged stamp-less tobacco products under s. 121.1.

Recently, however, the government appears to be taking another step toward the modern by unveiling their revisionist vision through some new amendments to Code sections. This came about serendipitously as the government needed to fulfill an election promise of decriminalizing the use of marijuana. To do this, the government realized they needed to not only remove laws but to fix them. So as part of the modernization of our drug laws, the government revised the Criminal Code sections on impaired driving (sections 253 to 259), and while they were in the area anyway, to freshen up the other driving offences, namely dangerous driving under s. 249, with a “new look.”

As soon as these legislative changes were tabled in Parliament, everyone brought out the magnifying glasses. Each word of the proposed legislation, newly delivered, has been scrutinized. Mainly, the focus is on the impaired driving amendments, which, quite frankly, look a little Charter unfriendly, despite the stern warning of that mandate letter to be respectful. But leaving the Charter aside, which it appears the government may be doing with these sections, let us not consider the minutiae of this Bill, rather let us consider the general efficacy of the government’s approach.

Putting away our magnifiers then, we should consider the “big picture,” and ask whether the federal government is truly modernizing the criminal law and bringing it kicking and screaming into the 21st Century. It would appear, in fact, at least with the impaired driving amendments, that this is not what is happening. It would appear the government is instead merely back filling; reacting to weaknesses in the old legislation by plugging up the holes, like the little Dutch boy, to ensure the dike doesn’t leak. The changes are therefore reactive, not proactive. They are backward looking, not forward facing. The drafting of these new sections does not assist us in walking toward the future. The sections are prolix and dense. Furthermore, the amendments do not send the message of a new Canada which is tolerant, diverse and progressive. The sections download onto the citizen the burden of ensuring that their conduct, even after they are no longer driving, wherever they may be, whatever their emotional or physical state may be, is reasonable. Whatever that means. At the same time, the new sections relieve the state of the burden of justifying the use of its authority to investigate. Even without glasses, it seems the revisions are not very 21st century.

Turning to the other changes, quietly placed in the Bill is the new Part VIII.1 (which by the way is still perpetuating the archaic use of Roman Numerals) entitled “Offences Relating To Conveyances”. At first blush, one has visions of property offences relating to land titles. On a closer look, the “recognition and declaration” (the only other legislation this kind of section is found is in the Alberta Bill of Rights, RSA, 2000) in section 320.12 advises us what we already were told by Justice Cory in Hundal that licensing, as in operating a “conveyance,” is a privilege and the rules of the road, so to speak, must be observed. Section 320.11 defines “conveyance” as a motor vehicle, vessel, aircraft or railway equipment. These conveyances were also subject of the now to be replaced dangerous operation section 249. Section 320.13, as the new dangerous operation section, creates an offence where a conveyance is operated, having regard to all of the circumstances, dangerous to the public. The soon-to-be-replaced s. 249 is similarly worded, although it gives a clearer description of what those circumstances could be, such as “the nature, condition and use of the place” of operation.

After this closer look, it becomes clear that this “new” Part is not really new at all but merely a short hand version of the old.  The new changes are not a change but a touch up, a change in nomenclature, maybe even a nod to the past case law. Again, what is the impetus of this change? The decriminalization of marijuana, which requires a change to the impaired driving laws, which requires the government to react to previous case law by filling in legislative gaps, which requires the government to change all of the driving offences, which causes the government to show they are modernizing the Code by simplifying the sections.

What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

 

Some Thoughts On Teaching Evidence

This week I began teaching Evidence, a required course for the 2Ls. This is my first time teaching the course and yet the rules and principles of evidence seem second nature to me. True, this can partly be explained by my legal career, involving criminal trial and appellate practice, in which I used these principles on a very practical basis. Perhaps, it can also be explained by the fact these rules and principles are generally a matter of common sense and human experience. Certainly, the basic rule of the admissibility of evidence is predicated on that concept: admissible evidence, as a matter of common sense and experience, is relevant when its introduction tends to make a fact more or less probable than the fact would be without it.

However, this initial feeling of comfort and familiarity with the rules and principles of evidence is perhaps why teaching and learning evidence is so crucial to a modern legal education. True, many of the 2Ls in my course will not be trial and appellate lawyers and many of them won’t be obsessively sifting through Supreme Court of Canada judgments to find thematic connections. Rather, evidence is meaningful not because of the rote application of the rules but because of the underlying purpose of these rules which cause us to question the rules and principles themselves. In many ways, this exploration of evidence leads us to re-consider the meaning of law itself.

To make my case, I will refer to some examples from this first week of the course by starting with this concept of “common sense.” Indeed, throughout the trial process, common sense and human experience is a common theme, albeit traditionally it is often perceived through the lens of judicial experience. In support of this contention, read Justice Moldaver’s approach to many criminal law issues in which he applies the “common-sense” paradigm, such as in the 2012 Walle decision or the 2015 Tatton case. I have written further on these decisions here and here. Or, if your bent is more to the civil side, read the 2012 Supreme Court of Canada’s decision in Clements v. Clements where the “but for” test for causation is applied in a “robust common sense fashion” by the majority. However, it is in the consideration of the community sense of how legal constructions are perceived, which seems to be now recognized as a legitimate reference point in judicial interpretation. A previous posting I wrote on this issue considering the SCC case of Anthony-Cook discusses this very point.

Another evidential concept requiring meta-reflection involves the first matter of consideration in the course: what is evidence in the broadest sense, outside of the legal premise. This question leads one to realize that evidence is not just an old shoe or a scrap of paper starting with the words “IOU.” Evidence is about relationships. There are no absolutes in evidence nor are there inherent qualities of an item which makes something, anything, a piece of admissible evidence. These things can only be viewed in relation to the “other.” The shoe is evidence only as it relates to the expert witness who describes the tread as similar to the tread found at the scene of the crime. The scrap of paper becomes evidence of an intention or a promise to pay in a civil action. The above describes just one sort of relationship evidence engenders. There are many more, replete with meaning both inside and outside of the courtroom.

One such outside connection is based on the overarching purpose of evidence as it relates to the truth-seeking function of the trial process. This is a cornerstone of our adversarial system and why we, almost smugly, suggest our form of justice is superior to the investigatory form found in continental Europe. Bringing differing facts to court permits the trier of fact to get at the truth of the matter bringing to light the real events. But what is “truth”? Is it an absolute or is it merely a chimera of what was and is, therefore unattainable? As the historian Carl Becker, a strong proponent of historical relativism, suggested in his provocative piece, “Everyman His Own Historian” published in 1932, the present recollection of the past is really a creation of our own history. Essentially, he argues, as we describe past events we imbed created memories “as may be necessary to orient us in our little world of endeavor.” Are we then constructing a false sense of comfort and security when we suggest our evidentiary rules advance the “truth-seeking” function of our justice system? These are the kind of questions to be asked when faced with the law of evidence.

Another example will make my final point on the expanding properties of thinking about evidence. After discussing the basic rule of admissibility in the second class of the course, we discussed the general exclusionary discretion which permits the trial judge to exclude admissible evidence if the prejudicial effect of the evidence outweighs the probative value. The obvious first question arising from this exception to the basic rule of admissibility involves the meaning of “discretion.” What does it mean, in the legal context, to exercise discretion and what are the repercussions of exercising or not exercising such power? Notice, I used the word “power” to describe the exercise of discretion. Notice, I mentioned that using discretion creates an outcome, of which some will cheer and others will decry. Discretion as a power, as the excellent casebook used in the course, Evidence: Principles and Problems edited by Deslisle, Stuart, Tanovich and Dufraimont suggests, can also be revered or jeered. As pointed out in the readings (pages 176-178), discretion can be a tool of the authoritarian state as every tyrant imposes his will through the exercise of discretion. Conversely, discretion can be the mark of the most tolerant and accepting society as it considers an individual as a concept worthy of respect and personhood even in that individual’s darkest moments. Discretion therefore can be the face of compassion or the mask of fear and terror. In the case of exclusion, discretion is a delicate balancing act in which the rule of law acts as the tightrope and the trial judge as the safety net. But, whether this in fact takes place provides us with more questions to consider.

It is true that teaching about evidence can amount to naval gazing with that inward eye, which can leave us in a state of doubt about almost everything. However, this constant drive to re-examine and re-assess our traditional rules and principles is what, in my view, make our rule of law admirable and meaningful. In this light, perhaps talking about evidence in a law classroom is one of the most “relevant and material” journey in a law career.

 

On The DLW Decision and The Meaning of Modernity

Despite our common law system, statute law remains a key source of law in Canada. Its importance cannot be underestimated as lawmakers rely on legislation to implement policy on various social and economic issues. In many ways, legislation is reflective of who we are as a society and serves to reinforce our collective values. No other piece of legislation in Canada exemplifies this more than our Criminal Code, RSC 1985, c C-46. Contained in this piece of legislation is conduct we deem as a society to be so abhorrent, so contrary to who we are, that we will punish those who commit these prohibited acts, often through a loss of liberty. Although the concept of codification relieves us from speculating on the substance of criminal behaviour, it carries with it the mystique of interpreting or discerning Parliamentary intent in creating those crimes. As a result, statutory interpretation is often the main issue in criminal cases as judges wrestle with words, meanings, and intentions. This process is vital in criminal law, where a turn of phrase can mean the difference between guilt or innocence. The difficulty lies in dealing with crimes that carry centuries of established meaning, such as murder, assault, and theft. Yet, the crimes so interpreted must remain relevant. In this blog post, I will explore certain aspects of the DLW judgment, 2016 SCC 22, the most recent Supreme Court of Canada decision employing statutory interpretation principles, on the crime of bestiality (section 160 of the Criminal Code). Here, the Court enters into an age old process of interpretation yet does so, seemingly, in the name of modernity. This case highlights the inherent problems in discerning or interpreting value-laden legislation as it then was and then, ultimately, as it needs to be.

Before we delve into DLW, we must set our general legislative expectations. As mentioned earlier, legislation is based upon sound public policy. Seen in this light, legislation should provide a narrative displaying the objectives and goals of the rules contained within their sections. It should provide clarity of purpose with which we can identify. Legislation should be accessible to all, not just in a physical sense, but also intellectually. Moreover, legislation, as a delivery platform, should be flexible and responsive to the societal values it is meant to emulate. However, these expectations seem to dissolve as soon as the ink dries on the paper. In the context of a written document, legislation seems to lose its dynamic quality. Indeed, as suggested by Lord Esher in Sharpe v Wakefield (1888), 22 Q.B.D. 239, at p. 242, “The words of a statute must be construed as they would have been the day after the statute was passed,” meaning that the words have a frozen quality as they encapsulate a moment in time. The key is in knowing what that moment reveals, which is crucial for the proper implementation and application of the legislation.

Although, the courts have entered into the legislative fray since time immemorial, or at least since 1235 when the first Act of the English Parliament was passed (see for example, Statute of Merton, Attorneys in County Court Act, 1235), it is still far from clear how the courts perform this interpretive function. To be sure rules have been fashioned such as the “Plain Meaning Rule,” also known as the “Literal Rule,” or the “Mischief Rule” or even the “Golden Rule.” Just to clarify, that is the other Golden Rule, not the biblical one. In any event, sprinkled liberally between these over-arching rules are specific rules and maxims, usually proposed in Latin, making the whole exercise very structured, formalistic, and confusing. Thankfully, this conundrum was noted by Elmer Driedger, long-time Solicitor for the Attorney-General of Canada and author of the seminal work in the area.  In the Construction of Statutes 2nd ed., Toronto, Butterworths, 1983, at 87, Driedger summed up all of the disparate rules into one sentence:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Within the year, in Stubart Investments Ltd v The Queen decision, [1984] 1 SCR 536, the Supreme Court of Canada endorsed this “modern rule.” By 1985, the principle was deemed “oft-quoted” in Vachon v Canada Employment and Immigration Commission, [1985] 2 SCR 417 (at para 48). Despite the Court’s quick embracement of the “modern rule” or “modern principles,” decades later, it is still unclear what this rule encompasses and how “modern” it truly is. This topic is thoroughly canvassed in the fascinating article on the development and use of the “modern principle” authored by Stéphane Beaulac and Pierre-André Côté, entitled “Driedger’s “Modern Principle” at the Supreme Court of Canada: Interpretation, Justification, Legitimization” ((2006) 40 R.J.T. 131. In the paper, Beaulac and Côté persuasively argue that the principle is far from modern, even at the time of its reception by the Court. They posit the principle, as articulated by Driedger in 1983, was simply a rough summary of the main statutory principles in use at the time. Certainly by 2006, the principle was far from “modern” having been in use for years. As an aside, some of these principles can be traced to the thirteen rules of Talmudic textual interpretation, particularly rule twelve, which suggests a contextual interpretation. In any event, the Supreme Court of Canada still confers the moniker, “modern,” to the approach (see R v Borowiec, 2016 SCC 11 at para 18). Its modernity, therefore, appears to be in question.

However, in the spirit of Driedger let us first do a little interpretation on the term “modern.” In the DLW case, “modern” appears to mean “new” as opposed to “old.” Looking at the “grammatical and ordinary sense” of the word “modern,” the Oxford Dictionary, the go-to text for the Supreme Court of Canada (CanLii search found 147 SCC cases referencing the Oxford Dictionary as opposed to a paltry 11 cases for Merriam-Webster), the definition is “relating to the present or recent times as opposed to the remote past” or “characterized by or using the most up-to-date techniques, ideas, or equipment.” Indeed, in Justice Abella’s dissent in DLW, she frames the issue as the new against the old with her newer more “modern” interpretation of the crime as opposed to the majority, written by Justice Cromwell, an old hand at statutory interpretation cases, as the purveyor of the old fashioned, decidedly out of sync with today’s realities.

Abella J accomplishes this new/old dichotomy through her deft use of metaphor directed at the majority decision. The opening paragraph of her dissent utilizes agricultural metaphors of abundance (at para 125) describing the “fertile field” of statutory interpretation with the “routine harvest” of “words and intentions” as “planted” by the lawmakers.  This metaphor brings to mind not only quantity but also the longevity of the interpretative technique as she then extends her position that the crime of bestiality must receive a modern interpretation despite the fact it is a “centuries old” crime (at para 126) whose “roots” are “old, deep, and gnarled” (at para 125). Thus an interpretation of the crime, based on tradition as per the majority under Cromwell J, is not a living tree but an ancient inaccessible relic of the past. Cleverly, Abella J’s opening of the issue is an effective foil to Justice Cromwell’s majority where he characterizes bestiality as a “very old” crime in his opening paragraph (at para 1) but one which cannot be made “new” without clear Parliamentary intention and certainly not through judicial intervention. In paragraph 13, Justice Cromwell hands Justice Abella her thematic metaphor by setting out the “root” of the issue as an interplay between common law and statutory intention. A similar technique was used by Justice Karakatsanis, with Justice Abella concurring, in the dissent in the Fearon case, [2014] 3 SCR 621, 2014 SCC 77 (CanLII), wherein Justice Cromwell too authored the majority decision. There, through the deliberate choice of word use, the dissent of Karakatsanis J breathes modernity in stark contrast to Cromwell J’s reliance on traditional legalistic nomenclature (for further discussion on this see, as published on my website, my previous blog entitled A Fresh Look At Fearon: How Language Informs The Law).

In fact, Justice Abella is right: the issue in DLW is very much bound up with the old and the new as the court is faced with the task of defining the meaning of “bestiality” as it relates to a disturbing child sexual abuse case where a family pet was used to molest a child. The “old” or “traditional” view of bestiality, undefined in the Criminal Code but as gleaned through common law, has the requirement for penetration. This definition fails to not only capture the conduct in DLW but also fails, according to Justice Abella’s dissent, on a cultural, social, and public policy level as well. The irony, in the context of interpreting our codified criminal law, is the reliance on the common law conception of the crime. Since its inception in 1892, the Criminal Code has been the only source, with one limited exception, for identifying which conduct should be considered criminal. If conduct is not proscribed in our Code as a crime, then it is not one. In other words, the common law, or those unwritten rules which have developed over time, cannot create a crime. The only exception being the common law offence of contempt of court pursuant to s. 9 of the Criminal Code. Otherwise, only our Parliament under s. 91(27) of the Constitution Act, 1867 has the authority to create criminal law. Nevertheless, the common law is not ignored in the interpretative process. For the majority, the common law remains unchanged by codification and therefore can be equated with Parliamentary intention. To go any further, in the view of the majority, the courts would be creating a “new” crime, which is not within the judicial function. Conversely, for Justice Abella, the common law conception of bestiality reinforces the present need to move beyond it.

In this sense “modern” can also denote more than a chronological time. It can also, according to the Oxford Dictionary, refer to a “current or recent style or trend in art, architecture, or other cultural activity marked by a significant departure from traditional styles and values.” In this definition, looking at legislation as a “cultural activity” in the broadest sense, Justice Abella’s reading of the term proposes a departure from the traditional “modern principles” through the lens of current societal interests as reflected in the present policy decisions behind the creation of crimes. However, in the realm of traditional statutory interpretation, although Parliamentary intention -through the scheme and objectives of the legislation- lends context to the statutory interpretation process, such context does not necessarily include a deep dive into the policy behind the legislation. Certainly, Driedger’s principles do not directly make reference to it. This lack of clarity, according to Beaulac and Côté in their article, has resulted in uneven judicial treatment of policy in statutory interpretation. For instance, in Canadian Broadcasting Corp v SODRAC 2003 Inc, [2015] 3 SCR 615, at paragraph 55 the majority decision written by Justice Rothstein (Cromwell J, among others, concurring) effectively cautions against the dissent’s use of policy considerations in textual interpretation. In that case, Justice Abella, yet again, writes the main dissenting position. The DLW decision, therefore, is just another example of this interpretive tension. However, considering traditional statutory interpretation in discerning Parliamentary intention was reluctant to go beyond the four corners of the document, the now ubiquitous use of Hansard to elucidate on such intention shows how far the court has and can move from tradition towards modernity. This will definitely be a continuing dialogue within the court to watch for in future cases.

So what of the modernity of the principle in use in the DLW case? It has already been established that this principle has been in use for years and, according to Beaulac and Cote, may even be a mere reiteration of what had been in use prior to 1983. However, as Beaulac and Cote also recognize, Driedger’s principle is both a “method of interpretation” and a “framework for justification.” It is that dual nature, which provides an inherent flexibility to the principle, permitting it to discern or interpret even the most profound words found in our rules of law. Its application, as seen through the discourse in the DLW case, cannot be confined by the four corners of a piece of legislation but must permit a deeper analysis involving societal values and purpose to remain meaningful. In short, it requires, a touch of modernity.

This blog is also posted on Ablawg website: www.ablawg.ca

 

 

The Suppression of Riots, Manifestly Unlawful Orders, And The Prevention Of Serious Mischief Under Sections 32 & 33: Episode 37 of the Ideablawg Podcasts on the Criminal Code of Canada

Although sections 32 and 33 pertain specifically to the suppression of riots, these sections continue the various Code protections afforded to a person enforcing the law but with a twist. Section 32 provides for a justification for the use or the ordering of force by a peace officer providing the force is applied in good faith, is necessary on reasonable grounds to suppress a riot and such force is not excessive in the circumstances.  So far, these sections seem familiar and comparable to previously discussed use of force sections. However, the difference is in the added language as sections 32(2) and (3) provide protection for those who obey orders to suppress a riot in both a martial law scenario (subsection 2) and a more general situation (subsection 3).  Subsection 4 protects citizens in the use of force in suppressing a riot in exigent circumstances involving “serious mischief.” Finally, subsection 5, deems the question of whether the order to use force is “manifestly unlawful or not” as a question of law.  

Section 32 reads as follows:

 (1) Every peace officer is justified in using or in ordering the use of as much force as the peace officer believes, in good faith and on reasonable grounds

       (a) is necessary to suppress a riot; and

(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(2) Every one who is bound by military law to obey the command of his superior officer is justified in obeying any command given by his superior officer for the suppression of a riot unless the order is manifestly unlawful.

(3) Every one is justified in obeying an order of a peace officer to use force to suppress a riot if

(a) he acts in good faith; and

(b) the order is not manifestly unlawful.

(4) Every one who, in good faith and on reasonable grounds, believes that serious mischief will result from a riot before it is possible to secure the attendance of a peace officer is justified in using as much force as he believes in good faith and on reasonable grounds,

         (a) is necessary to suppress the riot; and

         (b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(5) For the purposes of this section, the question whether an order is manifestly unlawful or not is a question of law.

Subsection 1 only provides protection to a peace officer that uses or orders necessary force. Although the term “uses” is self evident, the word “orders” requires further discussion as it relates to subsection 2 and 3 and the protection of those who “obey” such orders to use force. Clearly, the section provides protection not only to those directly involved in suppressing riots but also those who are indirectly involved by giving the order or commands to suppress a riot. Why should this be the concern of a Criminal Code protection? The answer lies in the historical consideration of these sections and are, of course, very much related to the historical view of riots and those preventing them.

For this historical viewpoint, the first place to turn is to James Fitzjames Stephen, British jurist and the “father” of our codified criminal law. As I have discussed in previous blog, Stephen was a staunch supporter for codification of criminal law in England just at the time the Dominion of Canada was developing national laws. Although England did not follow Stephen’s recommendation, other commonwealth countries besides Canada did. In his treatise “A History of the Criminal Law of England, Volume 1,” Stephen devoted a chapter on suppression of riots. Anyone who has a smattering of awareness of the history of England, knows that riotous behaviour appears to be a regular feature of that history. This familiarity with the mob appears to be the catalyst for much of English common law and Canada, at least in this instance, appears to be the beneficiary of this propensity. According to Stephen, every citizen had a right and duty to protect public peace as “violence in all forms was so common, and the suppression of force by force so simple a matter, that special legislation did not seem necessary in very early times.” Despite this belief, as early as the 14th Century, legislation was in place relating to riots and was quite similar in tone and composition to the riot sections found in the Code today. Historically, twelve members of the community comprised the magic number for a riot, which is telling considering twelve is also the number required to constitute a valid jury. However, in the Code, an unlawful assembly under s. 62, which is not necessarily a riot, requires only an assembly of three or more persons. An unlawful assembly becomes a riot, pursuant to s. 63, where that assembly begins “to disturb the peace tumultuously.” But the ability to disperse a crowd through governmental proclamation required the mob equal twelve or more individuals. I will have more to say on this aspect when we arrive at those riotous sections.

In any event, it is clear that suppressing a riot has a long and tumultuous history and therefore the protections required, from preventing a riot to ordering the prevention of riots, are firmly within the Code protection/justification sections. This brief look back also explains why 32(2) applies to those suppressing a riot in accordance with military law as historically, riots, seen as a form of treason against the Crown, were typically suppressed by military force. Protection is required as a riot can turn into a revolution, which can in turn change the government and those supporting the old government by suppressing the riot of the newly formed government might find themselves on the wrong end of the law. Thus, s. 32(2) in certain circumstances can protect those who are merely following and obeying orders. This protection also extends to citizens who assist peace officers in suppressing riots under subsection 3.

The urgency suggested by this obligation to suppress a riot unless the order to do so is “manifestly unlawful” in accordance with the section reflects the historical seriousness with which these potential dangerous gatherings were treated.  However, as indicated in subsection 2 for the militia and subsection 3 for citizens, the justification of following orders is not available if the order is “manifestly unlawful.”  This phrase appears only in this section of the Criminal Code although the word “unlawful” is no stranger to the Criminal Code, typically meaning an act contrary to statute, be it criminal or regulatory. The word “unlawful” has a further meaning when connected to a predicate offence as it then also requires that the underlying unlawful act must be objectively dangerous as per the 1992 SCC DeSousa case. The descriptor “manifestly” is defined in the dictionary as easily understand or recognized by the mind.

A brief review of case law on the use of the term reveals that the phrase, “manifestly unlawful,” is a term often used in military law in relation to the requirement to follow superior orders, particularly where superior orders are conflicting. Under Article 19.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&Os) deals with "Conflicting Lawful Commands and Orders" and according to the notes accompanying the QR&Os, it is usually clear if an order from a superior officer, which includes a non commissioned member, is lawful or not. If however it is unclear or the subordinate does not know the law, then the subordinate must obey the command unless it is manifestly unlawful.

Of course the issue then becomes evident to whom? Does the law require the unlawfulness of the order be manifestly evident to the person following the orders – as in a subjective test – or manifestly evident to the reasonable person – as in an objective test? Although, an argument could be made that this determination requires a subjective assessment of the subordinate’s state of mind, according to military interpretation, “manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal,” requiring an objective test albeit in the context of the circumstances of the case. This phrase is important for military law as if a soldier follows a manifestly unlawful command, he or she is liable for his or her actions under civil or criminal law.

In the 2009 Matusheskie case, the Court Martial Appeal Court of Canada considered the term “manifestly unlawful” and found that the threshold for finding an order “manifestly unlawful” was very high. In support of this finding, the Court looked to the SCC discussion of the defence of following superior orders in the Finta case relating to Finta’s war crimes committed in WWII. As Justice Cory explained in Finta, “manifestly unlawful” is an order that “offends the conscience of every reasonable, right thinking person; it must be an order which is obviously and flagrantly wrong.  The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.” The determination of “manifestly unlawful” is as stated in subsection (5) a question of law.

Finally, the gravity of riots permits citizens, who are unable to secure the attendance of a peace officer, to take into their own hands the suppression of a riot under subsection 4 if the actor believes “serious mischief” will otherwise result. The phrase “serious mischief” is again unique to this section, although of note the term did appear under the pre-2010 Alberta Rules of Court in relation to ex parte motions. Under the old Rule 387 an ex parte motion may only proceed if the applicant establishes that the delay caused by regular proceedings might “entail serious mischief.” The new rule 6.4 considers whether or not “undue prejudice” would be caused to the applicant. In other jurisdictions, the phrase is also used in a similar civil context and refers to “irreparable or serious mischief” caused by not proceeding by way of ex parte motion such as in s. 441(3) - now Rule 6-3(3) - of the Saskatchewan Queen’s Bench Rules. This suggests that the “mischief” or harmful behavior must be dangerous indeed.

Section 33, requires a peace officer and those assisting a peace officer to “disperse” or arrest those persons who do not comply with a proclamation under s. 67 or has committed an offence under s. 68. These sections, which we will discuss more specifically in later episodes, refer to the proclamation or order to disperse, which must be read by a government official, under section 67, where twelve or more persons (recall the 14th Century English laws on riots) are “unlawfully and riotously assembled.” Section 68 refers to offences committed when those ordered to disperse under s. 67 fail to do so.

Sections 32 and 33 are part of English common law history and remind us of a more unstable time when mobs could oust the rule of law. The societal harm when that possibility occurs is neatly reflected in Shakespeare’s historical play, Henry VI Part 2 in Act 4 Scene 2 wherein the line “the first thing we do, let’s kill all the lawyers” is spoken as a call to anarchy and disorder and a reminder to those law abiding members of the audience to take heed.

 

 

 

 

 

 

 

 

A Fresh Look at Fearon: How Language Informs The Law

A case commentary typically expounds on the legal doctrinal issues raised by the decision and rarely looks at the judgment as a literary document. The final full SCC judgment of the year, Fearon, has been much discussed on the doctrinal level but as a final 2014 legal send-off, a different kind of case commentary is in order.

On a literary linguistic level, the Fearon case is a fascinating example of how the majority and the dissent employ differing or shall we say dueling word usage. The choice of terminology is not only intended to signal a very particular perspective but firmly connects the decisions to doctrinal perspectives emanating from prior cases. This continuity with the past provides precedential value to the two decisions and challenges us, as readers, to determine which decision is really the right one. Hand in hand with this analysis, is the revealing metaphors abounding in these decisions.

Let’s first look at the majority decision written by Justice Cromwell. The first term used in this decision is the phrase “truly incidental” as in the police generally (note that the general versus the specific is also underlined in the majority decision) have a common law power to search a cell phone incident to arrest if the search is truly incidental to the arrest. Not just incidental but truly incidental. In the judgment there are 22 incidents of this phrase, all in the majority decision! Yet, in terms of previous SCC cases, the term appears only in the Caslake decision, which found an “inventory” search of an accused’s vehicle, hours after arrest, invalid as such a search was not “truly” incidental. For a search to be truly incidental, there must be a “valid purpose” connected to the arrest. By the way, the term “valid purpose” pops up 5 times in the majority judgment.

Caslake is referred to 15 times in the judgment, with 12 references in the majority and 3 in the dissent. The dissent refers to the generalities of Caslake - as to when a warrantless search may be appropriate - and does not mimic the s. 8 language as the majority does. Although “truly incidental” is found in only 2 SCC criminal cases, the term is used in lower court nomenclature. In Ontario, including Fearon, there are about 46 cases using the term but they all occur after 1998, the year the SCC decision in Caslake was released. Although the Manitoba Court of Appeal decided the lower court decision in 1995, Caslake, was not, as yet, part of the s.8 vocabulary.

Before we move onto other terminology, note that the phrase “strictly incidental” is used only once as is the phrase “properly incidental.” According to the Merriam-Webster Dictionary, “truly” is defined, for Fearon purposes, as “without question or doubt” and “strictly” means “rigorously conforming to principle or a norm or condition.”

The word “prompt” is used 31 times, with only two of those occasions by the dissent and for very different reasons. The majority uses the word “prompt,” defined as “performed readily or immediately” to provide the underlying reason for a search incident to arrest as the immediate need to investigate the offence by gathering crucial evidence.  It is the timeliness and the speed with which the police must pursue this investigation, which underlies the majority decision. Conversely, one of the times the dissent uses “promptly” is in reference to Justice Cromwell’s majority decision and the other occurrence is to highlight how quickly the police, in the case, applied for a warrant when case law suggested they needed to do so. Thus the term “immediate” or “immediately” is used often throughout as well.

Another phrase used liberally throughout the majority decision is the phrase “law enforcement objectives,” which is used 26 times, 4 of which is in the dissent. Again, 3 of those 4 occasions in the dissent are direct references to Justice Cromwell’s majority decision. This term is used in 4 previous SCC cases, 3 of which are search and seizure cases being the Law case from 2002 – privacy interest in stolen property; Chehil – sniffer dog case involving the search of vehicles from 2013; and the Stillman case of 1997 the case on the seizure of bodily samples and discussed at length in Fearon. The term “law enforcement” is further described in the majority judgment as being “important” 12 times in the majority.

The word use is much different in the dissent. Indeed, the atmosphere of the two decisions differs dramatically. Justice Cromwell’s decision has a law and order aspect reminding us of the need for investigatory powers to enhance and uphold the rule of law. As will be discussed below, the choice of words highlights this theme through the use of metaphors involving balancing and weighing and metaphors involving the limitation of space and time.

In contrast, the dissent is a decision marked by Charter values and modernity – it reads like a law school paper on constitutional rights and freedoms, inviting the reader to muse on the lofty ideals crucial to a free and democratic society. Indeed that term, “free and democratic society” appears three times in the dissent (plus “democracy” appearing once) and appears there only with no such Charter values relied upon in the majority, other than the balancing of rights required under s.8.

Other Charter values involving individual rights and freedoms are also relied upon in the dissent decision but it is the word “privacy” that trumps them all. This word is used 123 times in the decision with the word used 37 times in the majority but a whopping 86 times in the dissent. Certainly “privacy” is a word that at some point must be used by the majority when the decision speaks to the balancing of rights under s. 8 but more telling is the use of the word “private” in the decision. It occurs once in the majority but only in reference to strip searches and “private areas.” In the dissent however “private” occurs 27 times to describe “private digital devices,” “private lives,” and the “private sphere,” among some of the uses of the term. Again, this term is signaling the core of the dissent’s decision that privacy is at stake in the case and therefore it is privacy and the living of the “good” life protected by Charter values which are be the controlling issues in the case.

Not only are certain terms and phrases utilized to bolster each of these decisions but the decisions use the literary device of metaphor to solidify and justify the decisions as well. Thus, both the majority and dissent use balancing and weighing metaphors (25 times) to support different outcomes. The majority relies heavily on space metaphors and the desire to delineate the space wherein the rule of law must reside requiring the use of the words “scope” and “parameters” and “limits” and “points” by the majority. The majority also uses work or structure metaphors, using the term “framework,” “task,” and “link.” The dissent uses social words connoting society and community such as “lives,” “relationships” and “intimate” with a liberal use of emotive terms such as “likes and dislikes, our fears, hopes, opinions, beliefs and ideas.” The metaphor of “big brother” also looms large as a pointed reference to Orwell’s 1984 figures in the dissent. In contrast the concept of freedom and the ability to choose one’s own path is highlighted.

There are many other nuggets in this judgment worth discussing as a counter-point or enhancement of a pure doctrinal study of the case. It will indeed be interesting if any future SCC cases utilize this stark linguistic contrast or if it is merely a result of the impassioned differences on the SCC on this particular issue, which determined choice of language. 

I must at this point acknowledge Professor Jonnette Watson-Hamilton, for whom I did some research on metaphors and language many years ago while pursuing my Masters at the University of Calgary, Faculty of Law. She introduced me to the critical theories of language involving the use of metaphors in legal decision-making – a “truly” illuminating experience! Review her articles written to access her publications involving language and metaphor.

For further information on this, start with the seminal works by cognitive linguist George Lakoff, particularly Metaphors We Live By, which Lakoff wrote with Mark Johnson. There are now multiple scholarly articles involving metaphors and linguistic techniques in legal discourse. The starting point for this is found in the articles written by Robert Cover, a fantastic legal scholar, sadly now deceased. Read his two seminal articles entitled Violence and the Word and Nomos and Narrative. I have also written a previous blog on Cover called Is Violence The Word? Additionally, I have written two previous blogs using metaphors as part of the legal analysis in Impression and Claim: Are They Both The Same? and in Blogs As Graffiti.

 

Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcasts on the Criminal Code of Canada

Reviewing the past few episodes, I have noticed a thematic connection: from section 13 to the section 18, the discussion has focused on the availability of specific defences. Today’s section 19 continues that Code conversation by speaking of the “defence” of “ignorance.” The section reads as follows:

Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

In fact, the section does not set out a defence but seems to take away a defence, the one of – I-did-not-know-that-was-a-crime – kind of defence. We know that mistake of fact is an excuse, which if accepted goes to the mens rea or criminal intention required but why should ignorance of the law not be accepted as an excuse considering there are so many laws. Not even a lawyer can keep track of the myriad of laws and regulations out there so why deem knowledge to seemingly naïve citizens?

This presumption of knowledge has actually been in place a long time: not only since the Code’s inception but also since laws were even glimmers in Hammurabi’s eyes.  The actual section comes from the English common law, which hails from a Latin maxim found in Roman law: ignorantia juris non excusat. Once laws were codified and therefore written down for all to see, this idea, that a breach of the law cannot be excused through lack of knowledge, became an important aspect of the internal workings of the law.

One reason for this presumption is to ensure that people did not become a law unto themselves – one cannot pick and choose the laws he or she wishes to follow. Everyone is considered to be equally knowledgeable and therefore equally liable if the law is breached.

Practically, it is about incentives – ignorance is no excuse so you better inform yourself before you do it. This ensured people did not remain willfully blind. Of course, as already mentioned, to inform oneself of all the laws is an almost impossible burden, but section 19 places the information burden, to a certain extent, on the individual as opposed to the state. The government does inform the general public of our laws through publications on websites, books, and, formally, in the Canada Gazette. It is then the responsibility of the specific individual to take advantage of these publications and inform him or her as needed. Putting it into historical context, if a citizen breaks the law, Hammurabi need only say “there is no excuse, the law is clearly here on the Stele!”

Histrionics aside, as I said earlier in the podcast/posting, section 19 “seems” to take away the defence of ignorance of the law. There are two reasons for this caveat.

First, there are numerous scholarly articles on how ignorance is in fact an excuse, in certain circumstances, and that the blanket statement in section 19, and found in the legal principles of most western legal systems, simply does not reflect the true state of the law. In support of this view, I recommend just some of the following articles: “Ignorance of the Law is No Excuse?,” “Ignorance of the Law is No Excuse, Except for Tax Crimes,” “Ignorance of the Law IS an Excuse, But Only for the Virtuous,” and my favourite, “The Death of a Maxim: Ignorance of the Law is No Excuse (Killed By Money, Guns, and a Little Sex.”

Second, there is a defence known as mistake of law, which I submit is not exactly an ignorance of the law excuse, and has found only limited success in the criminal law arena. This defence, known as the defence of officially induced error, is not so much about ignorance as it is about knowledge and from where that knowledge comes. This defence, which has its origins in the regulatory context, is a form of due diligence, which exonerates an accused who reasonably relies upon an erroneous legal opinion or relies upon incorrect advice from an official responsible for that particular area of law. So, the defence does not revolve around a complete failure to inform but around a mistaken but reasonable belief in the interpretation of the law. This exception to section 19 is permitted, as stated in the Supreme Court of Canada Jorgensen case, to ensure “that the morally blameless are not made criminally responsible for their actions.”

The main conceptual difficulty with s.19 is that knowing the law, as in knowing what the section says, does not mean one understands the law or understands what kind of behaviour a particular section may or may not prohibit. Meaning hinges on interpretation and therefore depends upon case law. To access this judge-made law one must have legal expertise. Surely, s. 19 does not take into account the seemingly endless complexities of our laws and of the legal interpretation of them.

On that note, I leave you to consider another Supreme Court of Canada decision, in the McIntosh case, wherein the then Chief Justice Lamer, on behalf of the majority, disapproved of reading-in words into the then s.34, self-defence section, as:

Under s. 19 of the Criminal Code, ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law. Yet we can hardly sustain such a presumption if courts adopt interpretations of penal provisions, which rely on the reading-in of words, which do not appear on the face of the provisions. How can a citizen possibly know the law in such a circumstance?

The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach, which is sensitive to liberty interests. Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law.

Section 19 may provide certainty in the criminal law but the real question is whether it provides clarity.

Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcast on the Criminal Code

Making A Split-Decision In The Supreme Court of Canada

Last month the Supreme Court of Canada released their statistics covering the last decade of decisions. The graphs make interesting reading if you want to know how long it takes for decisions to be rendered or which provinces send the most appeals. If those issues are not at the top of your must-know list, the graph on the number of unanimous decisions versus split decisions may be the graph to pique your interest. The lowest percentage of split decisions in a given year was in 2006, where 20% of the cases heard resulted in a dissenting decision. The highest percentage of dissenting decisions occurred in 2007 with 38% of the cases. Last year, 32% of the cases produced dissents.

What could have made these statistics even more enticing would be a break down on who sits in dissent most often and why. Are there thematic connections? Well, of course there are: a justice dissenting on a specific issue would not be expected to change his or her mind if the same or even similar issue arises. However, change does occur, as we know when reviewing the decade of cases from the 1990s on the mens rea requirements for criminal negligence. This change or shift in the court’s decision-making is appropriate and welcome: we want our courts to be reflective of societal fundamental values and this ability for change in legal principles permits this. We also want our jurists to be open to this change, in a principled way, of course. So, analyzing SCC decisions is a way to track change and to better understand the court’s position or change in position on any given issue.

Instead of waiting another decade for these interesting numerical tidbits, I crunched the criminal law numbers for this year. From January to mid-March there have been 13 criminal cases in which written decisions were rendered. Out of the 13 cases, nine of the cases resulted in unanimous decisions. Quite frankly these unanimous decisions are very short and merely the Court agreeing with the lower level appeal courts. Four cases, however, were split decisions. Roughly, 30.7% of the cases are therefore split or dissent decisions. This percentage is fairly consistent with last year.

 

Now, let’s move away from the empirical side and look at these four decisions for meaning. What kind of split decisions are these?

I have spoken about the Babos case in a previous blog entitled When Dissent In The Supreme Court Matters. This type of split decision, where there is only one Justice in dissent, signifies a fundamental difference in opinion between the majority written by Justice Moldaver, on behalf of the five other justices on the panel, and the lone dissenter, Justice Abella. As such, the dissent is heartfelt and invokes value-laden terms such as the “exceptional assault on the public’s sense of justice” in the face of “egregious state conduct.” Justice Abella, with her background in human rights, is speaking out in a case where her dissent may not really matter in legal principle terms but is a matter with which she disagrees “on principle.” I would call this a “moral/ethical” decision.

The MacDonald case is more benign. It is a “true application” decision. The disagreement does not involve a direct disagreement on the issue at hand but a disagreement on the true or correct application of previously decided legal principles. Thus, the dissent written by Justice Moldaver and Justice Wagner with Justice Rothstein concurring takes umbrage with the majority’s application or misapplication of the Mann case, decided a decade earlier, on the reasonableness of protective police searches. Ironically, Justice LeBel, who wrote the majority decision, was a member of the majority Mann decision. The dissent does not fail to appreciate this irony when they write:

The majority in this case purports to apply Mann.  Respectfully, however, it does not.  Instead, it renders Mann redundant, depriving police officers of the limited search powers they need to protect themselves and the public in fluid and often unpredictable situations of potential danger.

Such a case leaves the legal profession wondering if the Court can’t apply its own case properly, who can? Keep an eye on how this decision, which did not cause the flurry of attention in the legal profession it should have, will affect trial matters in the lower courts.

In Sekhon, the court considered the admissibility of a police officer’s “expert” evidence on drug couriers pursuant to the Mohan criteria. Although, both the majority decision, written by Justice Moldaver, and the dissent, written by Justice LeBel (notice how quickly the tables turn in the SCC in terms of who is in the dissent and who is in the majority!), agree that the evidence was inadmissible, the differences come in the application of s. 686(1)(b)(iii) and whether the appeal should be dismissed as there was no substantial wrong or miscarriage of justice. Again, both the majority and dissent agree on the basics: that the admission of the evidence was not a trivial error. However, in Justice Moldaver’s view the evidence of guilt was overwhelming and therefore it is within the public’s interest not to send the matter back to trial considering the costs to the criminal justice system. Justice LeBel agreed “that ordering a new trial places demands on judicial resources,” however, “this cannot override the appellant’s right to a fair trial based solely on admissible evidence.” In Justice LeBel’s view, the inadmissible evidence went to the very issue before the court – the guilt or innocence of the accused. This kind of decision is the “tug of war” decision.

Finally, the Hutchinson case is the “throw-back” decision. What did we say in Mabior again? While this case does not re-litigate the issues, as Mabior was a unanimous decision written by Chief Justice McLachlin, it does build upon some of the key pronouncements in that case. Thus, in Hutchinson, the majority, written by Chief Justice McLachlin and Justice Cromwell, agree that sexual assault offences protect sexual autonomy but not absolutely as the “blunt instrument of the criminal law” must be used with “appropriate restraint.” On the other hand, the dissent written by Justice Moldaver and Justice Abella view the protection of the sexual integrity of a person, as the controlling issue in the meaning of consent, within the broader context of public policy. Interesting to see the majority speak of traditional criminal law principles in the context of offences, which, for public policy reasons, are the least traditional criminal law offences in the Code. Clearly, there is much more to be said on the issue and a further “throw-back’ decision would not be unlikely.

So, there is a lot to be said about the court’s decisions over and beyond the simple statistical graphs we review every ten years. I wonder what the next few weeks will tell us? 

Ideablawg's Weekly Connections: From Pronouncing to Pronouncements

This week I looked at the dual nature of the word “pronounce.” Although in both meanings to “pronounce” is a speech word, the effects of the meanings are very different.

1. Pronounce: In this meaning – to make a sound of a word or letter with your voice – is something we do everyday. Even in this digital age, the speech act is integral part of being human. However, how we pronounce our words has developed over time and the dialect or way in which we pronounce a word has changed radically in the English language. For example, every teen is required to read Shakespeare, typically Romeo and Juliet, Macbeth, and Hamlet, but inevitably with present-day pronunciation. True we recognize the words and the grammatical structure differs from ours but few of us consider that pronunciation in the 1500s was quite different. Thanks to the linguist, David Crystal, Pronouncing Shakespeare, is possible. Listen here for the correct pronunciation (i.e. as Shakespeare would have pronounced them) in Romeo and Juliet. To follow along, the text is here. Just to connect Shakespeare to law, I remind everyone of the famous passage in Act 4, Scene 2 of Henry the IV, wherein Dick states "the first thing we do, let's kill all the lawyers," which presages the disintegration of society and the beginning of anarchy.

2. Pronounce: Another aspect of pronouncing a word is to speak the word properly. In law, Latin words and phrases are common. Indeed, two such phrases come immediately to mind when I teach criminal law. The first is actus non facit reum nisi mens sit rea, which means there is no guilty act without a guilty mind and from where the terms mens rea and actus reus, the essential elements of a crime, come. As an aside mens rea and actus reus are never used in the Criminal Code of Canada. The second Latin maxim is the causation concept of de minimis non curat lex or the law does not concern itself with trifles. Although the Latin language is liberally sprinkled throughout legal textbooks and case law, Latin is not a required course in law schools. But thankfully there are opportunities for self-study. Just buy Wheelock’s Latin and go online for the correct pronunciations. Your law professor will thank you for it.

3. Pronounce: The second meaning of the word is to declare or announce something formally or officially. A Judge, when he or she renders a decision, is making a pronouncement. How the Judge or trier of fact comes to a decision is a matter of much academic speculation and argument. Critical legal theorists spend much of their academic career trying to articulate this seemingly inarticulable process. Is decision making predictable? Is it based on preconceived views of the trier of fact? Is it random or guided by an innate sense of justice? These heady questions are still being deconstructed in legal jurisprudence. As a primer, read Benjamin Cardoza on The Nature of the Judicial Process for an enlightened view on the subject.

4. Hazmat Modine: to end this week’s connections, I decided to move completely away from my theme and leave you with some excellent music and an example of how our world seamlessly mixes all genres to produce new sound – kind of like how our pronunciations have changed over time. Enjoy!

 

 

 

A Long Holiday Read On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?: Episode Eleven Of The Ideablawg Podcast (And The Text Version!) On The Criminal Code of Canada

Codification can be a good thing: instead of searching multiple statutes to find the criminal offence for which your client is charged, as an English barrister must do, the Canadian lawyer just flips through the weighty but convenient Criminal Code. To be fair to England, they did try to codify their criminal law. In fact, our codified criminal law comes from that English attempt by Sir James Fitzjames Stephen. I say the English "attempt" as even though we Canadians embraced the codification concept, the English Parliament did not. For more information on the history of the Criminal Code and possible reform, I invite you to read my previous blog on the subject entitled The Criminal Code of Canada: Codification and Reform from February 12, 2012.

Codification can therefore provide much needed certainty of the law. There is no guess work with codification – we know it is a crime because the Code says so. Thus, the concept of ignorance of the law is no excuse from the Latin maxim of ignorantia juris non excusat, is crystallized in a compendium of sections of the Criminal Code and even is codified in it as we will see when we discuss s.19 of the Code.

Alas, however, this same reasoning can lead to the conclusion that codification can also be a bad thing. Firstly, codification leaves little room for interpretation. The Criminal Code, as a really, really, long statute, abides by the rules of statutory interpretation, which guides us on the application and meaning of this statute. According to another Latin maxim of statutory interpretation expressio unius est exclusio alterius or “expression of one is the exclusion of the other,” means that what is not written in the Criminal Code is not part of the Criminal Code. This principle is supported by other statutory interpretation rules such as the  plain meaning rule of statutory interpretation, which advises us that the words used in the Criminal Code mean what they ordinarily mean.

These rules have not gone unchallenged and there are interesting articles discussing those issues. For instance, the rule raises the question as to whether or not there truly is an “ordinary” meaning of a word when considering the differing cultures and perceptions of our multicultural nation.

Besides critics of these statutory interpretation concepts, there are other rules of interpretation, which seem contrary to these “closed book” rules, such as the ability of a court to “read-in” words or phrases to a statute to ensure its constitutional integrity. To be sure courts through the ages have read-in phrases and meanings in certain sections of the Code but they have not actually read-in a whole section. 

Thus, through the effect of codification, the Criminal Code captures and defines our criminal law, leaving very little room, if any, for change, unless Parliament so chooses. In this way the dynamic nature of society is not reflected through our laws. Certainly, however our Charter has added a fluid dimension to the Criminal Code by superimposing societal change, albeit incrementally, onto the written word. Instead of a closed book, the Code seems to be more akin to an e-reader, in which the internet can be accessed, on occasion, to elucidate the reader.

The second problem with codification is the isolation of the criminal law from the English common law tradition, which brings with it a rich and varied criminal law. Using another metaphor, codification is like a tree without its roots as common law is an important source of our criminal law. However, the whole purpose of codification would be defeated by the uncertainty caused by permitting the common law to exist outside of codification. How would an accused then know the charge for which he or she was facing without reference to a specific charge found in the Code if unwritten common law could still form the basis of a charge?

This last objection, to permitting the common law to stand as a system parallel to the Criminal Code, is also reflected in our Charter as a principle of fundamental justice under section 11(a) wherein a person charged with a criminal offence has a right to be informed of the specific offence without delay.

Thankfully, the framers of the Code did think of these issues and so we finally come to the sections which we will discuss in this podcast: sections 8 and 9 of the Criminal Code. But first we will look at section 9, which restricts the common law and ensures Canadian criminal law is consistent with the Charter. Section 9, under the heading Criminal Offences To Be Under Law Of Canada reads as follows:

Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730

(a) of an offence at common law,

(b) of an offence under an Act of Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or

(c) of an offence under an  Act or ordinance in force in any province, territory, or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction, or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

This section is actually an enabling section as it ensures that the Criminal Code has full force and effect in Canada and that no one can be convicted or discharged with an offence other than an offence under the Code. This was needed as prior to codification, the sources of law were varied and included laws of the United Kingdom, laws particular to pre-Confederation governments, and laws arising from common law.

It is interesting to note that the section bars punishment for these offences as opposed to prohibiting a person from being charged for these offences. I would suggest that the word “charged,” as under s. 11 of the Charter, refers to the laying of an Information against an accused person, an action which comes at the beginning of the criminal process as opposed to “conviction,” which comes at the end. Thus, the protection of this section is triggered at the end of the trial process when an accused is found guilty by the trial judge and a conviction is entered. The triggering words are similar to the ersatz (see my previous podcast/blog where I explain why I use this qualifying adjective) presumption of innocence found under section 6 of the Code. In effect then, someone may be arrested, charged, and tried for an offence under either 9(a) or (b) or (c), and even found guilty, but it is the judicial action after the finding of guilt and immediately before a conviction or a discharge is entered, which section 9 prohibits. As in section 6, the focus is on punishment and is unlike the Charter sections on legal rights, which so assiduously protect the accused throughout the criminal process; from detention to arrest to charges to pre-trial custody to trial and then to acquittal or punishment.

Of note, is section 11(g) of the Charter that gives a person charged with a criminal offence the right

not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.

This section seems to parallel section 9 but it may be interpreted as giving a broader protection by using the phrase “not found guilty,” and therefore protects an individual before a finding of guilt is made. After the trial judge makes a finding of guilt, the accused is not convicted as he or she may be discharged under section 730 of the Code. Although a discharge is not a conviction, and therefore the accused does not have a criminal record, it is a “sentence” or punishment under the Code. This does seem to be a question of semantics, yet an interesting one to ponder.

There is, however, an exclusion to this decree as the section permits a court to “impose punishment for contempt of court.” Thus, section 9 preserves the court’s “inherent and essential jurisdiction” to cite and punish someone appearing before it for the common law offence of contempt of court. The purpose of preserving this power, according to Justice McIntyre speaking for the Supreme Court of Canada in the Vermette case, was “necessary, and remains so, to enable the orderly conduct of the court's business and to prevent interference with the court's proceedings.”

However, the jurisdiction of the inferior court or provincial court differed from the inherent powers of the superior courts. While the provincial court could only cite someone for common law contempt where the actus reus or contemptuous conduct occurred in the face of or in the presence of the court, the superior court could also use their contempt power in circumstances where the conduct was outside of court or ex facie. This was due to the inherent jurisdiction of the superior courts to maintain discipline within their courts independent of statute as opposed to the provincial or inferior courts whose jurisdiction was purely statutory.

This common law power is still used in courts today, albeit sparingly, and is available even though there are perfectly appropriate charging sections in the Criminal Code, such as s. 139 obstruct justice and s. 131 perjury. I have represented an individual for common law contempt and the unique aspect of the offence is the ability of the accused to proffer an explanation or an apology for the contemptuous behaviour that may be accepted as “purging” the contempt charge. I say “may” as the apology may negate the mens rea required for conviction but a judge is certainly not required to accept an apology as vacating the contempt finding.

Let’s now return to the second section to be discussed today, section 8. We saw how Parliament ensured that the Criminal Code would safeguard an accused’s rights by limiting common law offences and now, section 8, extends this protection by permitting some common law principles, which inure to the benefit of the accused, such as common law defences. In particular, I will read section 8(3):

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

Therefore, all common law defences, unless they are “altered by or are inconsistent with” the Code are available to an accused. The defences specified by the section are “justifications and excuses,” which are complete defences to a criminal charge but apply even though both the actus reus and mens rea of an offence are proven. Although both of these defences are restricted to a reasonable response by the accused to external pressures, they do differ.

An excuse acknowledges the wrongfulness of the action but holds that the accused should not be punished for his or her actions as Justice Dickson stated in the Perka case,

a liberal and humane criminal law cannot hold people to the strict obedience of the laws in an emergency situation.

Examples of an excuse would be the defence of duress, as in the Paquette case, and the defence of necessity as in the Perka case.

Conversely, a justification is where the accused challenges the wrongfulness of the act  as in the circumstances where “the values of society, indeed of the criminal law itself, are promoted by disobeying the law rather than observing it.”

For a fuller discussion on the present law on excuses see my previous blog on duress and the SCC Ryan case entitled Not To Make Excuses, But The Unresponsiveness of the Supreme Court of Canada To The Defence of Duress.

Returning to the exception in the section, which suggests that if the common law defences alter or are inconsistent with codified defences, then the codified versions prevail, we must consider the defence of duress as codified under s.17. As we will discuss when we arrive at s.17, both the common law defence of duress and the section 17 duress are available to certain accused in certain circumstances. We will see that far from the caution that the common law defence where altered or inconsistent cannot stand in the face of the codified defence, the common law defence of duress has actually altered the codified version as a result of the application of the Charter. But we will come to this in due course.

Of course, there is a world of common law defences outside of the Code and outside of the rubric of justifications and excuses such as the common law defence of mistake of fact and the common law defence of mistake of law. Certainly, the common law defence of mistake of fact has been altered for sexual assault offences pursuant to s. 273.2. There are other common law defences, which sadly are sorely underused such as the de minimus defence, or the defence that the law does not consider trifling breaches of the law. These common law defences receive short shrift unfortunately due to the advent of the Charter and the subsequent Charter-weaned lawyers who believe Charter rights are the only kind of defence worth pursuing.

Finally, a note on the legislative histories of these two sections. Section 8 actually was our present section 9 and our present section 9 was the then section 7 until section 6 was re-enacted as the present section 7. Section 7, as you may recall in the previous podcast, involves offences on aircraft and offences occurring outside of Canada. Our present section 9 was enacted as section 8 in the 1953-54 Code amendments. The reversal occurred in the revisions under the 1985 Code when section 8 became section 9. To make matters even more confusing section 8 was present in our original Criminal Code of 1892 under the then sections 7 and 983. In 1906, the sections were combined and re-enacted as sections 9 to 12. The following revisions made a dizzying number of changes until the 1985 revisions re-enacted the then section 7 to the present section 8.

Confusing? As I have complained before in these podcasts, often the government has placed content over form by changing and adding sections to the Code without consideration for placement or sense.

On that historically obfuscating note, I wish one and all a very happy holidays and a happy new year. This podcast will return in January 2014 as we discuss the next section of the Criminal Code of Canada – section 10 when we revisit the common law offence of contempt of court and the availability of appellate remedies.

Episode 11Of The Ideablawg Podcast On The Criminal Code of Canada: On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?

The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada – Text Version!

The presumption of innocence – the concept that an accused is presumed innocent until proven guilty - is easily the most well known legal principle. 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.

Indeed, as an example of the ubiquitous nature of the presumption of innocence, we can find the concept used as a title of a book, such as in Scott Turow’s novel, Presumed Innocent and the movie version with Harrison Ford. Or used as almost a character flaw as in one of my favourite legal literary heroes, Rumpole of the Bailey, written by John Mortimer Q.C. In those stories, Horace Rumple, the rumpled everyman barrister, finds personal solace in his belief in “the health-giving qualities of claret, of course, the presumption of innocence, and not having to clock into chambers in the morning.” In the classic play/movie 12 Angry Men, when Juror #8, played by Henry Fonda, reminds Juror #2, played by John Fiedler, that “the burden of proof is on the prosecution. The defendant doesn’t even have to open his mouth. That’s in the Constitution,” we nod our heads in agreement and relief. Although many of us could not say which section of the Charter (s. 11(d): “to be presumed innocent until proven guilty”) encapsulates this concept, we all take comfort in knowing it is there.

But there is another place where the presumption of innocence is recorded in Canadian law and that is section 6 of the Criminal Code, which is entitled “presumption of innocence,” the first part of which reads as follows:

Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,

(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 of the offence; and

(b) a person who is convicted or discharged under section 730 of the offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

Now, that’s not really the “presumption of innocence” we have come to expect, is it? When you read this section it just does not seem to have that visceral punch I talked about earlier when reacting to the lines spoken in 12 Angry Men. It also does not seem to be conveying the deep, and almost personal societal, values underlying this fundamental premise.

First, let’s look at the wording. Unlike the Charter equivalent, there is nothing in section 6 about a “presumption” only a “deeming.” So the very word, we hang on when discussing innocence, the “presumption,” which gives the concept such solemnity, is gone. Second, there is nothing in the section about “innocence” although the title suggests it. However, as we know from my previous podcasts, in the Criminal Code the headings are there for convenience only and do not form part of the section itself. Instead, I would suggest, the section seems to be contrary to the presumption of innocence as it focuses instead on the concept of guilt and punishment. The section describes the circumstances in which the court can finally impose punishment. Now to be sure the court needs to hold off until conviction, but as soon as that pre-condition is fulfilled the sanctioning regime kicks in and punishment is not only available but also inevitable. Section 6(1)(b) continues this punishment theme by ensuring that the punishment can only be that as prescribed or authorized by law but it adds nothing to our concept of the presumption of innocence. So this section is not really about the fundamental premise of our criminal justice system, the golden thread of criminal law, but about when punishment can, and will, be meted out.

To understand why this section reads as it does, a little legislative history is in order. The section first arose in 1886 legislation on punishment entitled An Act Respecting Punishment, Pardons, and the Commutation of Sentence, and was not only subsumed into the first Criminal Code but was placed in the latter part of the Code where the punishment sections resided. The purpose of the section was not therefore to trumpet the fundamental principle of the presumption of innocence but to reinforce the applicability of punishment at the time of a finding of guilt. This concept of punishment only upon conviction was not only consistent with English criminal law but was consistent with chapter 39 of the Magna Carta which stated that:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

In the original Latin phrase of this article “nisi per legale judicium parium suorum vel per legem terrae,” the Magna Carta protects the accused from punishment without judgment of his equals and in accordance with “the law of the land.” So this idea that an accused is guilty only when he is found guilty, remained under the general punishment section of the Code until 1955, when it was moved to the front part of the Code, namely to section 5(1), but was still viewed as a punishment section as it was then entitled Punishment Only After Conviction. However the wording of the 1955 section does resemble the wording we have today under section 6. It is not until the 1985 revision of the Code, when the section was repealed and reinvigorated as section 6 that it becomes the more venerable presumption of innocence. Of course this reconstitution (forgive my pun) came after the 1982 enactment of the Charter of Rights and Freedoms.

Understanding this legislative history does give us a better sense of how it came into the Code but why it was renamed the presumption of innocence is an unanswered question requiring deeper investigation than an Internet search. Certainly, looking at case law, this section is rarely invoked as authority for the principle of the presumption of innocence. A quick survey of cases reveals there are only a few such cases (these cases can be found here, here, here, and here) where section 6 was relied upon as propounding the concept but always invoked with the constitutionalized version found under s. 11(d) of the Charter.

Although I cannot explain why this presumption section is so named, I would like to take a few moments to consider where the concept of the presumption of innocence arose in the first place. In my earlier posting on the issue, I suggested, through the academic writings of George Fletcher that the concept actually migrated to criminal law from the English civil law. I do not want to return to that discussion, instead I want to take us to the moment when the presumption of innocence becomes imbued with the gravitas it now enjoys – the particular moment when the presumption of innocence transformed into the fundamental principle it is today. I have already alluded to that moment earlier in this podcast when I described the presumption as the “golden thread of criminal law.” In first year law school there a few seminal or landmark English cases we discuss and end up knowing virtually by heart. One of them is the case where this “golden thread” metaphor is first used, the 1935 English House of Lords case of Woolmington v. DPP.  The facts of the Woolmington case do not concern us here but the decision, what is written by the then Lord Chancellor of Great Britain, Viscount Sankey, does.

In order to set the stage for this momentous decision, I need to give a quick legal backgrounder on Lord Sankey and the great impact he had on Canadian law. After the Supreme Court of Canada in 1925 found women were not “persons” under the British North America Act and therefore ineligible to sit in the Senate, the case, known as the Persons case, was appealed to what was then the highest level of appeal, the British Judicial Committee of the Privy Council. Civil appeals to the Privy Council were abolished in 1949, while criminal appeals ended in 1933. Lord Sankey, as a member of the Privy Council, wrote the appeal decision in the Persons Case or Edwards v. Canada (Attorney-General). In the case, reversing the Supreme Court of Canada decision and finding women were indeed “persons,” Lord Sankey commented on the argument that historically women were disbarred from public office. Despite this historical fact, Lord Sankey concluded that “the exclusion of women from all public offices is a relic of days more barbarous than ours” and that “customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.” In the Persons Case there was no reason why women could not discharge the parliamentary duty of office. In terms of the efficacy of the actual British North America Act, which today we call the Constitution Act, 1867, Lord Sankey, famously remarked that the Act “planted in Canada a living tree capable of growth and expansion within its natural limits.” This metaphor of the Constitution as a living tree has taken root since the 1930 Persons Case and has become a guiding doctrine in our constitutional jurisprudence.

Needless, to say Lord Sankey has a way with words and the Woolmington case was no exception. On the issue of presumption of innocence, Lord Sankey surveyed the textbooks on the issue and was perplexed to find a suggestion that the presumption was one of guilt and the burden was on the accused to prove otherwise. After running through more cases, Lord Sankey described the fundamental importance of the presumption as:

Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception.

Lord Sankey then connects the presumption of innocence with the burden of proof, which requires the Crown to prove guilt beyond a reasonable doubt. This connection is explored in my previous blog on the issue. So, it was Lord Sankey who gave use this strong visualization of the presumption of innocence and turned the principle into something much more.

How Lord Sankey came to this golden thread metaphor is puzzling. I suggest that this metaphor must have come from the Greek myth of Ariadne and Theseus. Ariadne gave Theseus a golden thread to help him escape the Minoan Labyrinth after he killed the Minotaur. Thus, the presumption of innocence, as the golden thread of Ariadne, leads the accused out of the maze-like machinations of the criminal law.

This thread theme is reinforced by a further metaphor, which I also referred to earlier in my podcast; that the presumption of innocence is part of the “fabric” of our society. Indeed, I found a 1965 case, R v Dixon, from the then District Court of Ontario, written by Mr. Justice Robinson wherein he describes the presumption as the “golden thread” that “runs through the warp and woof and is thus firmly imbedded in the whole fabric of the administration of English and Canadian criminal justice.” When I first read this passage, not unlike a Wiki page, I thought someone added the phrase “warp and woof” for a joke. But, like a good researcher, I looked up “warp and woof” and found the following definition:

The essential foundation or base of any structure or organization; from weaving, in which the warp — the threads that run lengthwise — and the woof — the threads that run across — make up the fabric: “The Constitution and the Declaration of Independence are the warp and woof of the American nation.” This expression, used figuratively since the second half of the 1500s, alludes to the threads that run lengthwise ( warp ) and crosswise ( woof ) in a woven fabric.

So this thread metaphor is taken in a different direction but is also a good candidate for explaining Lord Sankey’s “golden thread” turn of phrase. By the way, I did take my research a little further to find other cases that have used this archaic phrase. I found only a few cases, some which were actually about fabric making but there was a use of this metaphor in two Supreme Court of Canada constitutional Division of Powers cases; Reference as to the Validity of Section 6 of the Farm Security Act, 1944 of Saskatchewan and the 2009 Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters. Notably, in the 2009 case, Mr. Justice Binnie used the phrase in a delicious quote invoking the world of the 1860s:

The current Canadian economy would be unrecognizable to the statesmen of 1867 and, to borrow an analogy from Thomas Jefferson, one would not expect a grown man to wear a coat that fitted him as a child.  The coat is of the same design, but the sleeves are longer and the chest is broader and the warp and woof of the fabric is more elaborate and complex.  Adopting a purposive approach to constitutional interpretation, as we must, what is important is not how transportation was viewed in 1867 but rather to match in our own era the level of regulation (federal, provincial or territorial) appropriate to the nature and scope of the undertaking.  Now, as in 1867, when a transportation undertaking connects or extends “beyond the Limits of the Province” its regulation is assigned by the Constitution Act, 1867 to the federal level of authority.

In 1859, Charles Dickens also used a golden thread metaphor in A Tale Of Two Cities, to suggest a strong bond of familial love created by the indomitable Lucie. Although, there is a strong affiliation between the criminal law and the presumption, I still prefer the Greek myth connection. I should recommend here my previous blog on Charles Dickens and the law called Charles Dickens Is On The Side Of Justice wherein I discuss some of the more legally minded passages of Dickens’s novels. 

One final aside on this golden thread metaphor brings us to American literature and Nathaniel Hawthorne’s Scarlet Letter, where Hester is required to sew a letter “A” onto her clothing as her punishment as an adulterer. As time wears on, Hester proudly marks her shame with an “A” made of golden thread. For Hester, the golden quality of the thread reflects the shame of the community who branded her with their cruelty.

In some way the golden thread of the presumption of innocence protects us from a similar fate – a society devoid of compassion - or as Chief Justice Dickson, as he then was, reminded us in the 1986 Supreme Court of Canada Oakes case, the presumption of innocence "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." To me, his words are indeed golden.

 

 

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.

 

The SCC’s Whatcott Decision Explores The Meaning Of “Hatred’ While Continuing The Subjective/Objective Debate

As discussed in previous blog postings, the Supreme Court of Canada appears to be moving towards the objective standard in criminal law – a standard in antithesis to the subjective standard which requires the trier of fact to determine the accused’s perception of the facts in deciding upon guilt or innocence. The objective standard found in objective mens rea offences and used as a standard of assessment in many defences, relies upon the seemingly objective perception of the reasonable person – a legal construct endowed with the standard of a standard citizen from a standard community.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

 

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.

Reading The Riot Act

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

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

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

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

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

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

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

(a) will disturb the peace tumultuously; or

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

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

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

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

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

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

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

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

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

Let's Talk About: The Word "Crime"

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

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

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

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

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

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

Proofiness: A Companion To Yesterday's Blog

Proofiness - yes, Stephen Colbert suggested the word when he coined the term "truthiness" meaning the intuition we have when we "just know" something is true as opposed to an objectively proven fact. See my earlier blog on Legal Intuition for more on intuition and fact-finding. But it is Charles Seife, a mathematician and journalist, who invented it. Yesterday, I issued a caution on the use of statistics as a basis for legislation, specifically, the new Alberta and, not so new, British Columbia impaired driving laws. I even invoked Mark Twain to provide the lesson: "There are three kinds of lies: lies, damned lies, and statistics." But today, the term "proofiness" will do.

In Seife's book Proofiness: The Dark Arts of Mathematical Deception, Seife makes a case for the "power in numbers" and the resultant misuse of such power by politicians, scientists, pollsters, advertisers, and the like. Numbers can be manipulated to support or dismiss claims. Numbers, themselves objective quantifiers, can be presented as "proof" to support subjective facts and transform the position into irrefutable truths. Anyone who works in an area where numbers matter must read this informative and disturbing book.

Another similar book is Trick or Treatment? Alternative Medicine On Trial by scientist Simon Singh and phyisician Dr. Edzard Ernst on the fallacy of many alternative remedies. The book resulted in a libel lawsuit against Simon Singh, who recently won on appeal. Singh is also an excellent science writer. I have read and highly recommend; The Big Bang,The Code Book, and Fermat's Last Theorem. But it is his Trick book which contributes to our statistical story. Singh discusses the "trickiness" of some alternative medical practitioners in their use of statistical evidence to show their treatments work. Like Seife, Singh cautions on the inferences to be drawn from statistics without full knowledge of the connections between the statistic and the inference. He gives a priceless example in his book on statistics of climate change and the number of pirates. Statistics can show that global warming diminishes with the number of pirates. Ergo, we need more pirates! Of course, the reasoning is wrong but yet the numbers don't lie. 

Finally, I leave you with a recent article I read from Scientific American on the population "clock" wherein the census takers warn the world of the next population milestone. Indeed, Kofi Annan in 1999 pinpointed the boy who was the "sixth billionth" person on Earth. This was proofiness at its best or should we say worst as there is no way to pinpoint with accuracy actual population. It is all estimate and guess. But it does provide a great marketing moment as the press and media disseminate the "truth." 

We have come, of course, full circle. Numbers don't lie but people do. So the next time you are faced with statistics and polls, just pull a Colbert and demand to see the proof.

As an aside, the Language Log has a great blog on a linguistic analysis of the word "proofiness" and the use of "iness" as a "Colbert suffix." Enjoy!

Impression Or Claim: Are They Both The Same?

I recently read an interesting law and language blog by linguist, Julie Sedivy, discussing the linguistic implications of choosing brand names, which by virtue of the name, makes a product claim. The impetus for her analysis were the recent struggles encountered by Health Canada and the Canadian Food Inspection Agency (CFIA) in regulating food product health claims. Sedivy specifically discussed the recent case of infant formula manufactured by Enfamil, called "A+" and "Gentlease A+." The difficulty with these brand names is obvious: is the A+ brand truly superior to all others and is Gentlease A+ truly easier to digest than all other brands? In this situation, there appeared to be a struggle between Health Canada and the CFIA, with the inspectors raising concerns over the labelling claims while Health Canada preferred a wait and see attitude.

Although Sedivy makes a linguistic distinction between a direct or implied claim (something that is either true or false) and a mere impression, Canada's Food And Drug Act makes no such semantic distinction. Both s. 5(1), relating to food, and s.9(1), relating to drugs, makes either a claim or an erroneous impression an offence when it states:


No person shall label...any (food or drug) in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.

The possible vagueness of the phrase "erroneous impression" was discussed by the Supreme Court of Canada in Canada v. JTI-MacDonald Corp., a 2007 case involving tobacco advertising to young people. In an unanimous decision, the SCC found the phrase "erroneous impression" was not overbroad, vague, or too subjective. In the Court's view, the phrase was "an attempt to cover the grey area between demonstrable falsity and the invitation to false inference" such advertising conveys. Thus, "leading consumers to infer things that are not true" about a product is a proper restriction on freedom of expression rights under the Charter.

This case decision is completely consistent with prior SCC cases on misleading advertising such as the 1979 Labatt Breweries case, where the majority found the brand name including the word "lite" as the "phonetic equivalent" to "light" would lead a consumer to mistakenly assume the beer was indeed a "light beer" according to regulatory standards. Even on the basis of "ordinary usage of language today" this is so: merely consider "nite" vs. "night" as recognized, although not unanimously approved of, synonyms.

It is clear misleading claims, impressions, and inferences can attract penalty but how about metaphorical branding? Metaphors do not just require inferences to be drawn but require deep connections to be made between the named object and another object or idea, which,without the metaphor, would not be readily connectable. An example of this would be the metaphors used in relation to the internet, which involve movement through a landscape: Netscape Navigator, Safari, and Internet Explorer all use this deeply rooted metaphor.

Whether this kind of branding would be clearly prohibited under the FDA may be more difficult to decipher. To read more on metaphors, I highly recommend Metaphors We Live By written by the linguist George Lakoff and the philosopher Mark Johnson. Metaphors also have a place in legal discourse but I will leave that journey for another time.