Can We Talk? A Brief Look At The Supreme Court of Canada’s Holistic Approach to Electronic Conversations

I am starting this blog posting with a pop culture literary reference. As soon as I read paragraph 17 of the Chief Justice’s decision in Marakah, the passage on taking the “holistic view” of the subject matter of the search as an “electronic conversation” transported me through space and time to a reading of Douglas Adam’s Dirk Gently’s Holistic Detective Agency (also now a tv series). The premise of the book is the concept of universal connectiveness through space and time. Dirk appears exactly where and when he should appear. Superficially, there may be no rhyme or reason for his appearances but on a deeper, holistic level there is, as they say, “method in his madness.” What appears chaotic is in fact logical – at least logical when viewing the events holistically. So too the majority in Marakah, authored by our very soon to be retired Chief Justice, looks beyond the heaviness of section 8 case law and clears a holistically-enhanced path toward search and seizure in the digital age.

To be honest, there are no real surprises in the majority’s approach to the s. 8 conundrum of text messages in the hands of a third party. What makes the decision so startling is the stark contrast between the universal, contextual and principled approach embraced by the majority and the law and order, hardware focused, nuts and bolts “modalities of transmission” approach of Justice Moldaver’s dissent. As in Fearon, this contrast between the majority and dissent highlights the divisiveness of technology. Not unlike grammar school where we thought about where to put the proper accent on the syllable (syl-la-ble as opposed to syl-la-ble), Marakah requires us to think about the proper emphasis the rule of law should place on privacy and technology.  Is it, as envisioned by the majority, an emphasis on human interaction involving the everydayness of conversations, which engage the who, what, when, where and how of that interaction? Or, is it, as suggested by the dissent, a matter of hardware choices, like going to the local Best Buy and using the device that is at hand (and fits best in your hand) at the time. The bigger digital question then emerges: how connected are we to our technology and how do we protect our society while in that immersive state?

Although Marakah gives us a crystal clear pixilated picture of section 8, standing, and reasonable expectation of privacy, it does not give us a sense of identity that Justice Karakatsanis did in the dissent in Fearon. I have written in a previous posting on Fearon of the differing linguistic choices employed in the majority and dissent in that case as a precedential device  (see “A Fresh Look at Fearon: How Language Informs The Law”). In Fearon, the public safety, law enforcement objectives trope is used by Justice Cromwell to strike a balance between privacy and state intrusion. The decision looks at the granule in an attempt to provide a teachable moment in the search for the reasonable search and seizure. In that decision, the chalice-like quality of the phone as a container was retained. For Justice Cromwell and the majority, the rule of law is predominant against the backdrop setting of technology. In contrast, Justice Karakatsanis in dissent renders her decision in the digital new world of technology using the aspirational aspect of our Charter values as a guide.

Similarly, Chief Justice McLachlin in Marakah anchors the privacy dimension of s. 8 to who we are as a society as envisioned through our Charter. We bare our souls through our emojis, our Snapchat stickers, and our cartoon inspired Bitmoji doppelgängers. It is no longer Descartes’s simplistic “I think therefore I am” but “I text therefore I am” or better yet, “I press send, that’s who I am.” The Chief Justice in Marakah crystallizes what we all believe, that the future is built on micro-chips, yet the human thumbprint can still be seen in its wires. Marakah sends that message loud and clear and, if our phone is not set to silent, we receive that message just as clearly.

 

Next blog up – “Keeping Up with the Joneses”: The SCC’s Decision in R v Jones

 

When Dissent In the Supreme Court of Canada Matters

Have you ever wondered about the significance of a dissenting opinion in the Supreme Court of Canada? To use one of their favoured terms, dissenting decisions may be signifiers of “incremental change.” Overtime, however, these dissenting opinions may become the majority decision. Certainly, some of Chief Justice McLachlin’s dissents are an example of this – most recently in the air of reality line of cases – see my previous blog on the issue here. Of course, sometimes a dissenting opinion does not signify change but simply signifies dissent – a vocalization of a differing viewpoint or to use probably a trite yet apt Robert Frost analogy “the road not taken.”  The recent Supreme Court of Canada Babos case on prosecutorial misconduct is an example of when dissent for dissent's sake matters.

Justice Abella’s dissent on the issue makes for powerful reading, invoking the sanctity of the justice system and the high standard we expect from our quasi-judicial prosecutors, who stand on behalf of the state as upholders of society’s fundamental values. Even in the adversarial system, the duties of the Crown prosecutor transcend the arena of dispute, as they must defend the law in the pursuit of justice. Justice does not have a stake in the ultimate outcome of guilt or innocence but does impact how the ultimate outcome is achieved.

This role is, as suggested by Madame Justice Abella, timeless and does not crystallize at particular points of a prosecution but must permeate every action or inaction of the Crown.  As she so eloquently said, “Time is not a legal remedy for a fundamental breach of the Crown’s role, and cannot retroactively cure intolerable state conduct.”  Difficult balancing must be done to fulfill this duty but it is of utmost importance in the viability and credibility of the criminal justice system.

So I encourage you to read the dissent and envision an alternate view where “an exceptional assault on the public’s sense of justice” is deemed worthy of dissent.

Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test

THE FOLLOWING BLOG BECAME THE BASIS OF A PUBLISHED ARTICLE NOW IN  (2014) 61 Criminal Law Quarterly 531

Last week the Supreme Court of Canada, yet again, restricted access to criminal defences. The Court, in the earlier Ryan case, signaled their desire to limit criminal defences to the realm of the reasonable person. This objectifying of defences, which in the Ryan case involves the defence of duress, places a barrier between the specific accused, as a thinking and feeling person, and her culpable actions by assessing the individual through the lens of the general; that of the reasonable person, who has no fixed address but, apparently, a lot of common sense. This external assessment, which looks outside the confines of the Court for direction, fails to appreciate the humanity before it in the shape of an accused faced with a dire choice whereby breaking the law means survival. For more on Ryan read my blog here.

Now in the Cairney and Pappas cases, the Court has added an additional barrier to all justifications and excuses through the “clarification” of the air of reality test. I have considered the lower Courts decisions on these cases in an earlier blog.

To discuss these decisions, we must first understand the antecedents of the air of reality test in Supreme Court of Canada cases. The phrase “air of reality” comes from the 1980 Pappajohn case. Pappajohn was charged with the rape of a real estate agent who was trying to sell his home. The accused and the complainant had diametrically opposed versions of the incident. According to the complainant, she was violently raped and according to the accused, they had consensual intercourse. The defence argued for the defence of mistake of fact to be left to the jury for their consideration. This mens rea defence, if accepted, would entitle the accused to an acquittal on the basis the accused had an honest but mistaken belief the complainant was consenting and therefore did not have the requisite mens rea to commit the offence. The trial judge refused to leave the defence to the jury and Mr. Pappajohn was convicted of rape.

It is in the majority judgment, written by Justice McIntyre, where the term “air of reality” is first used in relation to defences. In dismissing the appeal, Justice McIntyre finds the trial judge was correct in refusing to consider the defence of honest but mistaken belief as there was no “air of reality” to it. According to Justice McIntyre, for such a defence to be considered there must be “some evidence beyond the mere assertion of belief in consent” found in evidential sources other than the accused.

This air of reality requirement was used two years later in the SCC Brisson case, where self-defence was at issue. In Brisson, although all justices dismissed the accused’s appeal against conviction for first degree murder, there were three concurring judgments, with one such judgment written by Mr. Justice McIntyre who again finds that a trial judge must only instruct a jury on a defence, which has “some evidence sufficient to give an air of reality.” Interestingly, in the later 1985 Sansregret case, again on the application of the defence of mistake of fact in a rape case, Justice McIntyre does not refer specifically to the “air of reality” test but to the “air of unreality” of the defence.

The term “air of reality” is finally elevated to a “test” by Justice McIntyre in another mistake of fact rape case, Bulmer, from 1987. Here, Justice McIntyre fills in the phrase, “air of reality,” with a framework for trial judges to apply. He explains the test as a preliminary step in which the trial judge “is not concerned with the weight of the evidence or with the credibility of the evidence.” The simple question to be answered at this initial stage is: in all of the circumstances of this case, is there an air of reality in the defence?” The accused’s evidence will therefore become a factor but not the determining factor in deciding if there is, on the whole of the evidence, an air of reality. None of the cases I have referred to above were considered in the Pappas and Cairney cases.

After the Bulmer case, most SCC air of reality cases relate to the defence of mistaken belief until the 2002 Cinous case, which considered the defence of self-defence. Six of the nine-member Court in Cinous agreed to allow the appeal and enter a conviction. The majority reasons written by Chief Justice McLachlin and Justice Bastarache emphatically upheld previous enunciations on the test and viewed the air of reality test in the singular with no need to modify it for differing defences. They reaffirmed that the test “does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.”

Even with this clear admonishment, the majority did modify the air of reality test by introducing the concept of the limited weighing of evidence

“where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component.” (underlining added)

It is the last part of this quote which concerns the use of the defences known as justifications and excuses – necessity, duress, self defence and defence of the person including provocation, the defence raised in Pappas and in Cairney. These defences all have subjective and objective elements. All of these defences are subject to the air of reality test and subsequently all of these defences are open to the limited weighing of the evidence to determine whether or not the defence will be available to the accused.

In Cinous, for example, the Court referred to the proportionality requirement of the defence of necessity as requiring the trial judge to balance the various social values at play with public policy in deciding if the harm inflicted was proportionate to the harm avoided. This objective assessment requires the trial judge to draw inferences from the world outside of the accused and thus, according to the SCC, the trial judge must employ the limited weighing of the factors underlying the defence, which may impact this assessment. 

But from where did this concept of “limited weighing” come, if as Chief Justice McLachlin maintains in the majority judgments of Pappas and of Cairney the air of reality test has never changed?

This limited weighing does not come from the assessment of defences but from directed verdict/preliminary hearing cases. The first SCC mention of “limited weighing” comes from the 1998 Charemski case on a directed verdict where the case was based on circumstantial evidence. Unsurprisingly, it is Chief Justice McLachlin who consistently approves of limited weighing and is the torchbearer of Justice McIntyre’s air of reality test. Charemski is a case heard by only a five-member court with the then Justice McLachlin in dissent. Justice McLachlin disagreed with the majority and pointedly suggested that “while some judges,” (hint as to who those “judges” are – just take a look at the majority decision), “have referred to a distinction between “no evidence” and “some evidence”, this distinction is nonsensical.” According to McLachlin, it is the sufficiency of evidence at issue. To determine sufficiency in the circumstantial world, McLachlin further explained, trial judges must “engage in a limited evaluation of inferences.”

In the SCC 2001 Arcuri case, the extent to which the trial judge or, in this case the preliminary inquiry judge, must enter into this limited weighing was clarified by Chief Justice McLachlin on behalf of the full Court. Arcuri wanted the preliminary inquiry judge to weigh the evidence as the evidence was purely circumstantial and the witnesses evidence arguably exculpatory. In dismissing the appeal, the Chief Justice explained that limited weighing did not mean the judge was actually weighing the evidence in determining guilt or innocence but engaged in limited weighing as follows:

In the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.  This weighing, however, is limited.  The judge does not ask whether she herself would conclude that the accused is guilty.  Nor does the judge draw factual inferences or assess credibility.  The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. 

This means the trial judge when engaging in limited weighing of the evidence is considering the reasonable possibilities of such evidence and not considering the quality of the evidence. In the Court’s view it is for the trier of fact to decide what inference should be taken in determining guilt or innocence.

The nuances of this test are obvious: the idea the judge must draw a reasonable inference is importing, into yet another stage of a criminal trial, the objective standard. Such limited weighing may go the accused’s benefit such as in the Charmeski case where the then Justice McLachlin would have restored the acquittal. However, to apply the same standard of assessment to defences, may be the way of the Musketeers – all for one test and one test for all – but it fails to recognize the importance and uniqueness of justifications and excuses as the last bastion against the power of the State. Almost akin to a “faint hope” clause, when an accused turns to a justification or excuse as a defence, the case has essentially been made out against the accused as both the mens rea and actus reus, the dual requirements for a crime,  have been established beyond a reasonable doubt. Guilt is nigh and the only reasonable doubt becomes whether or not this accused, faced with dire circumstances, made the only choice available.

These defences are not broadly based and are not a concrete lifeline. They are subject to both subjective and objective elements and if the accused does not fulfill the prerequisites of the reasonable person portion of the defence, the defence fails. To then superimpose the limited weighing concept of the air of reality test, which is also based on an objective assessment, is to further restrict an already narrowly based defence.

Through this limited weighing on an air of reality test, the SCC has effectively increased the standard with which the evidence of the defence is to be assessed. One wonders if this kind of restriction is truly in the spirit of Charter values. It would be worthwhile, in a year from now, to study the impact this case will have on the ability of the accused to make full answer in defence and whether, like a transient puff of air, all of the defences are gone.

 

 

 

The Subjective/Objective Debate Explained

Over the past year, I have detected a theme in the criminal cases decided by the Supreme Court of Canada: is the criminal law objectively or subjectively based? This is a crucial yet traditional argument touching upon almost every aspect of a criminal charge, including the mental element or mens rea for a crime and criminal law defences. In other words, this issue or debate, impacts all areas of substantive criminal law and therefore is seminal to our understanding of the law and the appropriate and fair application of the law.

As punishment is the ultimate outcome of a finding of guilt in a criminal case, the standard of assessing the accused’s behaviour is of vital importance. Indeed, it is at the core of the presumption of innocence as it provides the tools by which a trier of fact, be it judge or jury, decides whether the prosecutor has proven the case beyond a reasonable doubt.

As discussed in a previous posting, the standard of assessment can make all the difference between a finding of guilt and a finding of innocence. The subjective standard requires the prosecutor to prove, beyond a reasonable doubt, that this accused intended his or her actions while the objective standard requires the prosecutor to prove, beyond a reasonable doubt, that a reasonable person would have not acted as the accused did in the circumstances of the case. By using a standard of reasonableness as opposed to the particular accused’s awareness, the objective liability is a lower standard and therefore easier for the prosecutor to prove. Yet, objective liability crimes, such as manslaughter, carry the maximum sentence of punishment of life imprisonment. The objective standard is harsh and can result in a conviction of a person, who due to personal frailties and inabilities, could never come up to the standard of a reasonable person. These individuals may be viewed as morally innocent as they do not have an intention to commit the prohibited act. In criminal law we justify this conviction by applying the principle of the utilitarian concept of the “greater good,” which emphasizes the “commonweal” and the importance of preventing societal harm. However by doing so, we ignore the societal interest in preventing the punishment of the morally innocent or those who are, to put it bluntly, “substandard” individuals.

The issue of subjective/objective mens rea came to the foreground after the Charter of Rights and Freedoms was implemented. Section 7 of the Charter requires that no one is to face a loss of liberty except in accordance with the principles of fundamental justice. Harkening back to the presumption of innocence, section 7 seemed to require a conviction based on subjective mens rea or individual awareness of the risk of his or her conduct. In a series of cases in the late 1980s and the 1990s, the Supreme Court of Canada agreed, yet disagreed. The Court agreed certain traditional crimes, such as murder and theft, which attracted great social stigma upon conviction (one is branded as a murderer or a thief), required subjective liability. However, other crimes, particularly those requiring a duty of care such as in the licensed activities of driving, need only require objective liability.

Although, the court arrived at a “modified” objective standard in a split decision in Hundal, the end result was far from a true modification. Unlike Justice Lamer’s dissent position, which called for an allowance for personal characteristics in the objective assessment, the majority preferred to “soften” the harshness of the objective standard by requiring the trier of fact to determine liability “contextually” in the circumstances of the particular facts of the case. Instead of taking heed to the specifics of the individual, the person whose liberty interests were at issue, the court preferred to focus on a construct of reality as revealed by the facts of the case. Justice Lamer’s stance, interestingly and importantly for my analysis, was supported by the now Chief Justice McLachlin.   At the end of the 1990s, it was clear that not only was the objective standard here to stay, it had reached constitutional status. Thus, the standardization of crime came into being.

This penchant for objectiveness also began to permeate the defences available to the accused. Certainly, the assessment of defences on a reasonable or objective standard was not new as seen in the assessment of the common law defences of justifications (self-defence) and excuses (duress and necessity). However, the objective assessment was always tempered with a subjective inquiry to ensure that this accused’s actions in face of a subjectively perceived threat were taken into account. However, I would argue that with the passing of the new defence of the person section in the Criminal Code, the objective requirement is forefront and again, the subjective assessment is left to a factual analysis, devoid of any personal viewpoints. See a previous blog I have done on this very issue. As argued by George Fletcher in an essay on the defences, The Individualization of Excusing Conditions, by turning the focus away from the accused, we are imposing an artificiality into the criminal law process wherein we sacrifice the individual in favour of the rule of law. Thus, we forget that defences, such as excuses, are “an expression of compassion for one of our kind caught in a maelstrom of circumstance.”

In the next posting, I will review the past year of SCC cases on the objective/subjective debate to determine if the Supreme Court of Canada has gone too far into the objective territory.

 

The Trial Judge Deserves Deference!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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