Freedom of Expression: Poems, Posters, And Billboards As A Form of Complaint

In previous postings, I discussed the Occupy movement's "Tent Cities" as a form of political protest with expressive content and therefore protected expression under s.2 of the Charter. Once Charter protected, the analysis then shifts to the s.1 limitation analysis to determine whether or not a restriction of that expression is justified in a free and democratic society.

Political protest, as expression, is readily accepted as worthy of protection. The difficulty, however, is when we look to more obscure kinds of expressive protest, such as a personal complaint. This was the case in a recent decision by the Ontario Court of Appeal in R. v. Jeffers.

Mr. Jeffers was convicted of mischief and counselling murder as a result of distributing and plastering posters across Toronto, which referred to his dire financial situation caused by the bank's re-possession of his home. In one poster, the basis for his convictions, Jeffers reproduced a photograph of a city councillor with the councillor's name and the word "murder" as seen below:


Murder Help

Councillor Thompson Jeffers

Help Black 647-xxx-4476
We Black



Mr. Jeffers, who was not originally from Canada, had a grade 5 education. According to Mr. Jeffers, the posters were a cry for help and were not intended to harm the city councillor, who had helped Mr. Jeffers in the past. The councillor did not testify at trial.

In quashing the convictions and substituting acquittals, the Court of Appeal, applying the legal principles required to prove the offences, referred to postering as "an effective and inexpensive means of communicative expression" and therefore "criminalizing this kind of conduct is not in society's best interest." The posters, albeit crude and childish, were a public airing of an individual's frustration with a plea for help from the City and were, in light of all of the circumstances, not criminal.

The Jeffers case made reference to another earlier Ontario Court of Appeal case, R. v. Batista, wherein the accused wrote poems and posted the verses throughout a Mississauga neighbourhood. The poems were about the accused's city councillor, and as with Jeffers's posters, not the most erudite literature, but were found not criminal in nature. A sample of the impugned section of the poem is reproduced below:


Now this bad driver that

WE only know as Pat Saito

who run away from thataccident

site is going to think twice

before backing up and looking at

pot holes instead of doing

Her job



We are going to dig a pot hole

about six feet long and 3 feet wide

and five feet deep to hide

her body and God will take care

of Her Soul, but We can not

forgive her for doing nothing


She can keep running

at a good pace but

We will make sure

that She is in HEAVEN

and out of the Race.


In this case, the Court considered the elements of the offence of threaten death in the context of freedom of expression under s. 2 (b) of the Charter and the vital role political satire, albeit "amateurish, foolish, and offensive," plays in a democracy. Indeed, the Court found:

The poem’s purpose of denigrating the elected councillor’s level of job commitment or competence provides important context for a consideration of whether the impugned stanzas of the poem constitute a threat. All citizens are entitled to freedom of expression in the political forum, including those whose language skills are limited. While it was unnecessary for the trial judge to engage in the in-depth s. 2(b) analysis urged upon him by trial counsel, it was necessary to consider the poem as political commentary before determining whether it constituted a threat at law.

Of course, freedom of expression is no stranger to signage as a form of complaint and grievance. In the 2002 Supreme Court of Canada Guignard case, a billboard erected on Guignard's building showing dissatisfaction with an insurance company, was protected expression under the Charter and the municipal by-law restricting that right was found to be unconstitutional.

The sign, as a form of commercial expression, was also a form of "counter-advertising" wherein a consumer exercised his or her right to show dissatisfaction with a product with the additional benefit of forewarning other consumers. This expression of complaint or dissatisfaction, not unlike the complaints found in Jeffers and Batista, "is a form of expression of opinion that has an important effect on the social and economic life of a society."

The Jeffers and Batista cases are yet another example of the Courts using Charter values to interpret their findings. Thus, the Charter colours decisions with broad strokes without the rigidity of a direct Charter analysis. This subtle use of the Charter is the future of constitutional law as Charter values incrementally change our laws to make them more robust and relevant to society.

A Message Of Tolerance

Relying upon s.2(b) freedom of expression rights under the Charter, Judge Bascom of the Alberta Provincial Court stayed a trespassing charge against William Whatcott, who received the trespass notice when distributing anti-gay literature at the University of Calgary. An indefinite ban was also lifted. This decision is consistent with other decisions on hate speech: no matter how abhorrent the message may be, there is expressive content in the communication and therefore protected under s.2(b).

Another factor for Judge Bascom was the place of the communication. This too is consistent with expression cases, as discussed in my November 17 blog on the City of Montreal case. According to Judge Bascom, the fact the incident occurred at a University was significant as "the concept of free expression is part of the University of Calgary philosophy." Interesting comment in light of the Pridgen case as discussed in my blog post here.

William Whatcott has not only been the subject of a Provincial Court decision, but also a Supreme Court of Canada case. Whatcott's case, in which he argued the hate speech provision of the Saskatchewan Human Rights Code is unconstitutional, is currently on reserve. Further information can be found in my blog postings here.

The determination of Charter rights are complex when faced with competing rights such as s. 2(b) freedom of expression versus the right not be discriminated against under s.15 of the Charter. In those instances, we, as a society, must look to the Courts to balance both rights meaningfully and fairly, in the context of Charter values, to come to the appropriate decision. 

Sometimes, society can also take some sage advice from those individuals, who we deem wise and worthy. I end this blog with a link to a message from Nobel Prize recipient, Lord Bertrand Russell. The message of tolerance can be heard here.

Music, Noise, And Expression

Yesterday evening I attended Impromptu, a collaborative concert showcasing avant-garde or experimental musicians sponsored by New Works Calgary. Although, I had heard the music played on the CJSW's Noise radio program, to actually be present when the musicians compose and play in such a contemporaneous fashion, is truly wonderful. But being the lawyer that I am, I began to wonder about the expressive content of music, and particularly, the expressive content of noise.

The City of Calgary's noise bylaw or Community Standards Bylaw which prohibits continuous and non-continuous annoying or disturbing noise, including music. Whether or not the sound is "objectionable" according to the bylaw, is a question of fact for a Court to determine. Yet, what may be music to one person's ears may be noise to another person. What is objectionable to one may not be objectionable to another. Community standards shift and change over time, over place, and over age and temperament of the listener. 

In terms of Charter protection, section 2(b), freedom of expression, protects the expressive content of an individual. Certainly, in some circumstances, sounds can have expressive content and thereby be worthy of protection. In the Supreme Court of Canada decision in City of Montreal, both the majority and dissenting justice found noise can have an expressive content. However, in the majority's view "while all expressive content is worthy of protection, the method or location of the expression may not be". Thus an amplification of music onto a public street may be protected as long as it does not impede the public's use of the area for passage or communication. In the end the final determinant is whether the "free expression in a given place undermines the values underlying" the Charter right of freedom of expression. To determine this the historical function of the public area must be reviewed as well determining whether or not the expression undermines free "democratic discourse, truth finding, and self-fulfilment." The majority upheld the municipal bylaw as a valid justifiable restriction.

Justice Binnie, writing the dissent, disagreed the bylaw was benign and justified. His comments on expressive content is interesting. Based on the Larousse definition of noise or bruit in French, is not intrinsically a nuisance. Binnie's concern over the wide breadth of the bylaw included the scenario of a McGill student listening to Mozart with the window open or Stephen Hawking amplifying his voice through his voice assistance device. He found the legislation unjustifiable. 

Expressive content as a signifier of Charter rights under s.2(b) in the end is not the full expression of what s.2(b) protects. Shifting society values is ultimately what gives our Charter meaning. But values do shift. Once Beethoven's Fifth Symphony was considered "noise" and even, according to Goethe, "a threat to civilisation." So what is noise today may very well be the music of the future.

Freedom Of Expression In The Classroom

This morning, the Alberta Court of Appeal will hear arguments on the Pridgen case. As discussed in yesterday's post, Pridgen rests on the issue of freedom of expression on campus and whether non-academic misconduct resulting from Facebook postings criticising an University professor was a justifiable restriction under the Charter. If, however, we tweak the case and re-imagine it, we come up with a different, yet related, freedom of expression dilemma: the expressive rights of teachers in a classroom.

The discussion will not refer to Keegstra or Ross, who through their expression promoted discrimination and hatred. Instead, the discussion will be about Mr. Morin, an untenured and untested teacher at a Prince Edward Island Junior High School. Mr. Morin's first year of teaching goes by smoothly and uneventfully and he is contracted to teach again. His second year, however, is much more controversial.

One evening, Mr. Morin watches a PBS documentary entitled "Thy Kingdom Come, Thy Will Be Done" and he is devastated. The raw documentary exposes the corrupt side of the fundamental Christian movement of the late 80s and its connection to American politics. Much of the documentary focuses on the scandal-ridden Jimmy Bakker, his wife Tammy Faye, and the PTL Church.

Mr. Morin sees a teaching opportunity in the documentary and decides to show the film to his grade 9 class in connection to a writing assignment on "What Religion Means To Different People." After the viewing of the documentary in class, the Principal receives complaints and directs Mr. Morin to stop the assignment. Mr. Morin will take his right to express himself in the classroom all the way to the highest Appeal Court in his province, and he will do it on his own and without the benefit of counsel.

The PEISCAD (PEI Appeal Court) agreed with Mr. Morin, although not unanimously. The majority of the Court, found expressive content in Morin's assignment, consistent with the Supreme Court of Canada's liberal interpretation of the freedom of expression under the Charter. Moreover, the right involves not only the teacher, who is expressing viewpoints in an effort to exchange and stimulate "opinions and ideas," but involves the students' right

in a democratic society to have access to free expression by their teachers - encouraging diversity, critical thinking, and vigorous debate ... students have a right to hear this expression and benefit from it...this right of students is fundamental to their being citizens in a truly democratic state and students of that states' educational system.

The right of a teacher, therefore, to express himself transcends the classroom and is elevated, thereby becoming a core concept of our society's fundamental values as reflected and protected by the Charter.

As we grow older and look back on our education, we recall those teachers who taught us without fear or prejudice. Thank you, Mr. Morin for reminding us.

The Pridgen Case and Freedom of Speech On the Canadian Campus

Tomorrow, the Alberta Court of Appeal will hear arguments on the Pridgen case. The issue involves the use of Facebook postings to criticize a University of Calgary professor, contrary to the student code of conduct. In the lower court case, Madam Justice Strekaf considered whether the subsequent finding of non-academic misconduct by the Pridgen brothers was a violation of freedom of expression under s.2(b) of the Charter. Ultimately she ruled there was a violation and the restriction could not be justified under s.1 of the Charter.

The issue of freedom of speech on campus is troubling. Universities are seen as the defender of academic independence and the protector of free thought. Through this freedom, critical thought is created, nourished, and encouraged. Innovation and excellence is the by-product of free thought. To restrict it, results in a withering effect and a loss of free debate on controversial issues. Thus, there is a societal interest in protecting free expression on campus. Our democratic tradition demands it.

On the other hand, as mentioned in previous posts, freedom of expression is not absolute under our Canadian Charter. Speech can be restricted but only if justified in a free and democratic society. There have been campus cases where Facebook postings were restricted justifiably. Those cases, however, involved threats of harm attracting Criminal Code sanctions. In contrast, the Pridgen case involved no threats and there was no evidence of resultant "injury" before the discipline council. Certainly, the comments were unkind, but were they the kind of expression we want to restrict on a University campus?

The answer will be left to the Court on Wednesday when the freedom to express oneself on campus will be tested. We will await the decision to see if the Pridgen brothers receive a pass or a fail.

 

 

Creating A Positive Out of A Negative

Today, we will journey from yesterday's Peace Camp to Victoria's Tent City and discuss the legal implications of protecting positive rights through the Charter.

Our Charter is generally a negative rights document protecting mostly civil and political rights. To protect these rights, the government is required to refrain from action, essentially to leave us, the right-holders, alone to enjoy rights such as freedom of religion (s.2(a)) and freedom of expression (s.2(a)).

The idea of positive rights in the human rights context is more problematic. These rights require the government to take action, to fulfill our entitlement to rights. They are typically socio-economic in nature and cover a wide array of social welfare issues such as the right to education or the right to health care. 

Traditionally, our Courts have been reluctant to find positive rights protection in the Charter : this would require the non-elected judiciary to step into the political fray by creating public policy. Despite this cautious approach, as Dylan would say (that's Bob, not Thomas), "the times they are a changin'." An example of this judicial trend into the positive rights arena, is the Supreme Court of Canada decision in the Chaouilli case, where Quebec legislation limiting timely access to health care was found to violate s.7 rights under the Charter.

Recently, further forays into the positive rights territory has produced interesting results. The 2009 Adams case, a particularly unique case from the British Columbia Court of Appeal (BCCA), highlights the lengths the Court will go to protect basic human rights, such as shelter. At the time of Adams, the City of Victoria was experiencing a severe shortage of shelter beds for the City's numerous homeless, resulting in a Tent City erected in a local public park. The Tent City housed 70 homeless people by the time the City of Victoria started legal steps to evict the people through the authority of the municipal bylaw. 

In a bold decision, the BCCA found the bylaw was overly broad and deprived the homeless people of their right to life, liberty and security of the person under s. 7 of the Charter by prohibiting the assembly of temporary overnight shelters by the homeless, who had no alternative accommodations. To require them to leave would negatively impact their personal integrity and diminish greatly their human dignity and self-worth.

As a result, the Court crafted a highly ingenious and singular remedy declaring the legislation inoperative when the number of homeless people exceeded the number of shelter beds available. The Court was sending a clear message to the City of Victoria: provide or accept the consequences.

The interesting aspect of this positive rights movement is how grounded it is in the basic minimal needs one requires in order to live; water, food, and shelter. And yet considering the origins, why is this such a unique foray? If indeed these rights are so basic, why are they not already "covered" by the Charter?

Perhaps the answer lies at the beginning of this post; with the meaning of positive rights. The government must act to fulfill these basic rights, which means big government spending big money. Not such a popular notion in a weakened economy. Another reason may be more subtle and may be found in the historical framework of our liberal democracy itself as epitomized by the laissez-faire or "hands off" government policies of the economist Adam Smith.

For whatever reason, it is clear the Courts have become more positive about our rights, which proves a positive can be created out of a negative.

 

Part Two: Occupying Public Space

Yesterday, I outlined the tension between the City and the Occupy movement over the tent city erected in the City's public spaces. Although, municipal legislation prohibts the camp, it has, to this date, not been enforced. Why? Initially, no doubt, the thought was occupy Calgary would make their point and move on. No "strong arm of the law," means no trouble. Unfortunately, that tactic has proven to be wrong. The Occupy movement has no plans to move their campsite, even in the face of declining public support (petitions) and despite alternative offers of living space. It appears a Western style show-down is inevitable and the only question is how soon before the matter is before the Courts. 

What would happen if the matter did go before the Courts? Two cases, involving protest in two very different Canadian Cities, may help answer this question.

First we go to Ottawa. It is 1994 and a Peace Camp, to protest cruise missile testing, is erected on the lawn of the Parliament building. Indeed, the protesters had a presence, in one form or another, in front of Parliament since 1983. An attempt to dismantle the camp led to various court actions. At the heart of the debate was the expressive quality of the protest: if the Peace Camp attempted to convey or did convey a meaning, then, Weisfeld the leader of the protest, could argue an infringement of s. 2(b) of the Charter, freedom of expression.

The Federal Court of Appeal agreed with Weisfeld: the structure, and the presence of other accouterments of the protest (brochures, pamphlets, signs, and the like), indicated there was a meaning conveyed by the Peace Camp itself. However, as discussed yesterday, the decision does not rest on a violation. An infringement of a right still requires a further analysis based on s. 1 of the Charter. Is this violation justified in a free and democratic society? Enter, the government to establish that indeed, it is, or the legislation restricting the right is invalid. The end result in Ottawa was a save by the government. On the s.1 analysis the removal of Weisfeld was justified. Exit the Peace Camp.

Fast forward fifteen years to Vancouver where the Falun Gong erected banners and a "make-shift shelter" in front of the Chinese Consulate, contrary to a City By-law. The City sought an injunction to remove the protest, which was granted. The Falun Gong appealed to the British Columbia Court of Appeal.

Following Weisfeld, the Court agreed there was a violation of s.2(b) as the structures had expressive content being "part and parcel" of the Falun Gong protest. That is where the similarities end. The BCCA did not find the bylaw saved under the s.1 analysis. In the Court's view, the prohibition did not minimally impair the legitimate right to engage in political protest; a cherished Charter value residing at the very core of our democracy. In a word, the by-law was over broad and captured legitimate forms of expression.

After that Canada-wide tour, we are now back in Calgary. What conclusions can we draw based on these other cases? Clearly, the occupy protest has an expressive quality which is protected by s.2(b) of the Charter. However, whether the City ordinance will be a justifiable intrusion on that right is questionable and dependent on a number of factors, including the type of evidence the municipality will proffer to justify the legislation.

Whatever the outcome, this much is clear, the protesters are here to stay for the near future. Indeed, no Canadian City has successfully evicted the movement. In the end, when the dust is settled and the shoot-out is over, this gun-fight might just be a draw.

Freedom of Expression: Occupying Public Space Part One

For weeks now, we have been inundated with the details of the Occupy movement. We know where they are, what they are protesting about, and in this age of technology, we can watch them on our computers. We can also watch the City authorities walk in circles as they try to avoid clashing with the protesters. Some cities have not avoided harm: Occupy Oakland is a good example. But other cities, like Calgary, have tried to give the Occupy movement a wide berth. Unfortunately, patience is now wearing thin with the municipal authorities, the press, and the public, as Occupy Calgary refuse to leave the public space provided to them. This has all the ingredients of a classic Western show-down. 

On the one hand, we have the Charter right of s. 2(b) freedom of expression and on the other, municipal by-laws prohibiting camping in public parks. Up to now, the City has not enforced the by-law and allowed the Occupy movement to inhabit the public space (Canada Olympic Plaza in downtown Calgary). But as the authorities begin to consider ending the occupation, the show-down between the Charter and the City looms. 

This conundrum is, of course, typical Charter fodder: a fundamental freedom is violated and the government must establish the intrusion is justifiable in a free and democratic society under s. 1 of the Charter. In this, our Charter differs dramatically form the American Constitution as our rights are guaranteed yet limited under the Charter : no rights are absolute, yet the s.1 analysis is rigorous. The analysis requires the right to be minimally impaired by the legislation, to be proportionately restrained, and the limit must have a rational connection to the valid legislative purpose of the law. It is a balancing act, which may lead to legislative death but it can also lead to legislative discourse between the Courts and the government. This dialogue can assist in re-framing legislation, which fulfills its objective, but in a Charter friendly manner.

Thankfully, we Canadians are not protest-shy and there are legal precedents to help guide the Occupiers and the Municipal landlords. Join me in tomorrow's post, as I navigate us through the legal side of the issue by looking at Ottawa and Vancouver.

Another Blog Interruption: It's Halloween, Are You Scared?

It is Halloween. The street is dark but the activity level is immense. Clutches of kids in costumes of all sorts are walking through the neighbourhood in search of sweet treats, scary houses, and fun.

But in some communities there is no fun. Two schools in Calgary, tweaked Halloween from a scary adventure to a caring one: children were not permitted to wear scary costumes (zombies immediately come to mind) but were only allowed to wear "caring" costumes involving fuzzy animals, fairies, police man and the like. It was caring with a capital "C," as the children attended caring assemblies and even built healthy food models to promote a healthy caring lifestyle. No sticky sugar-coated eyeballs here please! 

In other communities, instead of Halloween being transformed into the "care bears gone wild," Halloween is stripped down to its bare bones (excuse the pun). In the Town of Bonneyville, Alberta for instance, a Halloween curfew is in place: trick or treating can only take place between 4:00 pm and 7:00 pm and only by those under 15 years of age. 

In Charlottetown, PEI, the Nuisance Bylaw penalizes those teenagers who are out Halloween eve, after 8:00 pm, without an adult in contravention of the "Halloween Curfew."

In still other communities, an age restriction limits the fun. Teenagers are are expressly prohibited from taking part and if they do decide to take the trick instead of the treat, they are subject to fine. 

Setting aside what these restrictions, changes, and penalties say about our society, there may be some Charter rights at risk here. I can think of a few, can you?

Today, I was reading the 2004 Supreme Court of Canada Mann case in anticipation of my lecture on Legal Rights in the Charter. Although the issue in that case was the ambit of a protective search, which resulted in a police officer finding marijuana in Mann's pocket, the Court made some profound comments on the difficulties of balancing individual rights with societal interests. As Justice Iacobucci stated:

The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.

 This comment can apply equally here: how wisely are we navigating through the seemingly endless restrictions on individual liberty and are we losing some of our democratic "vibrancy" as a result. Now that's a scary thought.

The Road Taken by the Supreme Court of Canada

The Supreme Court of Canada, this Fall has already released a number of important judgments. The PHS Community Services Society decision on Ministerial discretion, or lack thereof, under s.56 of the CDSA for an exemption of a safe injection site in Vancouver is one such case. Another, is the Crookes v. Newton case in which the Court described a hyperlink in a website article as a reference and not a defamatory publication. 

The Court has also heard and reserved on some controversial cases such as the Whatcott case involving the constitutionality of the hate speech provisions in the Saskatchewan Human Rights Code. Whatcott is a good example of the difficult issues found in a Charter case involving conflicting fundamental freedoms as the freedom to express competes with freedom of religion. Not unusually with these conflicts, there is rarely a clear winner. As Ronald Dworkin, an American constitutional scholar, would say, one right does not "trump" another. For our rights in Canada, although guaranteed, are limited within the Charter itself. Ever reasonable, we Canadians prefer the balanced route, the road taken so to speak.

For tomorrow's blog we will be "taking rights seriously" as I speculate on the case the SCC has not yet heard, but should, and possibly, will. 

 

How To Celebrate "Persons" Day Next Year

October 18 was "Persons" Day in Canada. The moniker arises from the Edwards, et al case, decided 82 years ago, in which the British Judicial Committee of the Privy Council (JCPC), the then highest Appellate Court for Canada, defined women as "persons." This decision gave women the right to sit in the Senate. A right previously, and vigorously denied to women. The five women, who through their tenacity and will-power, appealed this case, are now known as the "Famous Five." In celebration of their achievements, equality rights for women is celebrated throughout Canada. Through their actions, they have inspired many.

There is no doubt the result of this achievement was a crucial and watershed moment for women's rights. There is no doubt the effect of this fight was also an important moment in Canadian law as Lord Sankey's decision brought the concept of our Constitution Act of 1867 into a modern and fruitful interpretation. One that is reflected today in our Charter. However, as with all "celebrities" there is another side to this story.

These women were politically powerful. Emily Murphy was a Magistrate, Nellie McClung was a Member of the Alberta legislature, and Louise McKinney was an active member of the Temperance movement. In short, they were important women who were personally affronted by gender inequality. Their fight did not include the concept of equality for all minorities or vulnerable groups. Indeed, their fight was for equal rights for women like them; politically powerful and of British descent. Indeed, Emily Murphy, held what we would categorize as, racist views, particularly towards Asian-Canadians and Afro-Canadians. Just read, if you can stand to, her book entitled Black Candle.

However, this does not mean we should not celebrate this moment or event. A quick glance at the celebratory events held throughout Canada show a remarkable array of events involving women of all nationalities and ethnicities. This is the true legacy of the Persons case.

Yes, women are people too but so are Aboriginal women, and Asian-Canadian women, and Afro-Canadian women, and thankfully and proudly the list goes on. So next year, I will celebrate this seminal moment by pausing for a moment and cheering for all women of all backgrounds in our country.

Wristbands Are In Effect: The "Keep A Breast" Campaign

My daughter is an engaged and informed teen. She reads the news and we discuss controversial issues as a family. She speaks out against injustice and lends her support to marginalized groups. Recently, she showed her support when she and a group of friends attended the gay pride parade. It was a positive experience from which she learned that tolerance and diversity are essential values to a healthy and vibrant community. In short, she is a good citizen.

The other day, after a trip to the nearby shopping mall, she came home flushed with excitement. She had "purchased," using her own money, three silicone "message" wristbands in support of breast cancer. As she proudly displayed the colourful wristbands, she read them out: "I Love Boobies," two of them said; "Check Yourself (Keep A Breast), the other said. To me this was clever messaging in a teen-friendly package. As they "say" Facebook, I "like" it and give it a "thumbs up."

Photo on 2011-10-17 at 18.32.jpg

On the weekend, I read, in the newspaper, about parents in British Columbia who don't like it. They find the wristbands offensive and distracting. So much so, the local school banned them. I did what any instructor of human rights would do, I cut out the article for my class.

Today in class, we discussed our fundamental freedoms guaranteed by the Charter, specifically the right under s.2(b) as:

the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

The discussion ran through many controversial examples of expression such as public nudity, burlesque dancing, t-shirts depicting violence against women, and even irreligious album covers. The discussion around these issues was often heated and divisive, but then we discussed the wristbands. In this discussion, everyone was in accord with each other: the wristbands are not offensive as they express an important public health message. The message was a cause to support, not to banish.

In a similar case, the United States District Court agreed. According to Madame Justice Mclaughlin, the school imposed ban of the wristbands was found to be an unconstitutional violation of the students' First Amendment rights.

What would happen here in Canada? Considering the Supreme Court of Canada's broad and expansive reading of freedom of expression, there is no doubt the wristbands would be protected expression. Whether or not the code of conduct limiting this expression, would survive s.1 reasonable limit scrutiny requires a more nuanced analysis. I am inclined to believe this prohibiton would not survive Charter scrutiny. A school code with such broadly based prohibitions would not minimally impair a student's right to express themselves. 

In the end, the choice is a personal one. To me, however, the choice is clear: I Love Boobies!

Update

on 2011-10-19 17:02 by Lisa A. Silver

Consider this: The Canadian Broadcast Standards Council okays Buchcherry's song entitled Crazy Bitch as it is "not abusive" but "I Love (heart symbol) Boobies" breast cancer wristbands are banned and branded offensive. Go figure?

When Does One Marijuana Plant Plus One Shared Joint Equal Nine Months Incarceration?

Yesterday, I read a number of twitters about the new Omnibus Crime Bill now making its fast and furious way through the Canadian Parliament. This particular set of tweets pointed out an absurdity: a person can be sentenced to a mandatory 9 months in jail for growing a marijuana plant, smoking a joint with friends, all while sitting in the comfort of his or her own rental apartment. My first reaction was one of disbelief. I shared this tweet with my criminal procedure class with interesting results.

Some of the students, not unlike my reaction, gasped and shook their heads. But there was one student who applauded the action. This student, as an owner of rental property, was glad to hear that property rights will be protected. Instead of that much bandied about acronym (lawyers love acronyms!), NIMBY, it was NITPILO – Not In The Property I Lease Out. The student had a good point.

So I decided to investigate this new amendment further. Upon reading the actual amendment, the following became clear:

  1. This is a mandatory minimum sentence or MMS
  2. Applies to less than 201 marijuana plants
  3.  Must be convicted of production for the purpose of trafficking
  4. One of a list of factors must apply
  5. One of those factors is the accused “used real property that belongs to a third party”

What does this add up to? Well, an argument. My spouse, who is also a criminal lawyer, and I had a boisterous argument over the application of this new amendment. The issue was; who can be captured by this amendment?

The argument revolved around the offence of production for the purpose and the meaning of using property “belonging to” another. So, we did what all good lawyers do when we disagree, we ran to our respective computers and did some legal research.

What did we find? I found more questions than answers. Although an accused will be acquitted of possession for the purpose of trafficking if the marijuana is for personal use, not necessarily so for production for the purpose. Under the Controlled Drugs and Substances Act (CDSA is the acronym), production includes “cultivating, propagating, and harvesting.”

So yes, you a grow a plant or two and harvest it to make a joint, you are producing contrary to the Act. But it must be for the purpose of trafficking. Okay, so if you produce for yourself only, you are not within this new amendment. But, if you grow the plant, harvest the plant, roll a joint and give the joint to a friend– that is trafficking the produced drug.

But how about that last factor – in rental property? It says real property belonging to a third party. My husband and I really argued about this. Many drug forfeiture hearings revolve around ownership of the property. The ownership is sometimes obscured through numbered companies, which are actually owned by criminal organizations. His argument was; this would only apply to those nefarious cases. I disagreed; this factor refers to rental property. It is protecting my student and many others who rent out property.

Who is right? Just read the House of Commons publication explaining the new legislation. The factors are for “health and safety.” Remember Safe Communities Act. The aggravating factor is committing the offence in a rental property.

Bottom line? The math does add up if there is a situation of a grow-op in a rented home. Bad things happen to homes used as grow-ops and adding a further disincentive to do this can be a good thing. Whether or not a MMS (acronym for mandatory minimum sentence) is appropriate or constitutional is for another blog.

Where the math does not add up however, is in the situation of the lost soul who grows a couple of plants, makes some joints from them and invites friends over for a smoke in his rented apartment. Is that justice? You do the math.

My question to the lawyers out there: in light of yesterday’s SCC decision in Cote, in which the Court showed strong support for Charter values and rights in their 24(2) analysis, would this legislation pass Charter scrutiny under a s.1 reasonable limitation argument?

Poetic Justice?

Does poetry have a place in the courtroom? An Ottawa Crown thinks so. In an attempt to convince a judge to convict an accused of an impaired driving charge, the Crown set his submissions to rhyme. Although the judge convicted the accused, she did not mention the use of the unusual literary device. My advice to the Crown: don’t quit your day job.

Poetry and the law are no strangers. Many eminent poets have also been trained in the law such as the American, Wallace Stevens and the Spanish poet, Frederico Garcia Lorca. In Canada, F. R. Scott was a legal scholar who also waxed poetic. He held the position of the McGill Dean of Law in 1961 and was a well-respected constitutional/human rights litigator. Indeed, he was a vocal proponent against the Quebec anti-communist statutes known as the “Padlock Laws.” His poems are beautiful. They are insightful reflections of a proud Canadian and are well worth reading.

But does poetry, for it’s own sake, have a place in the legal arena? It depends on the use. In the Emkeit case, the Crown read an inadmissible and inflammatory poem to the jury on a murder trial. Although the majority of the SCC did not overturn the conviction, the strongly worded dissent by Hall, Spence, and Laskin JJ. suggest they were not amused by the “so-called poem.”

On the other hand, in light of the contextual approach used by the SCC in Charter cases, poetry and other literary material may have a place in elucidating and interpreting Charter rights and values.

For those interested in further reading, there are suggestions at the Law and Literature blog from April.

Would You Like Some Coffee With That Mug-Shot?

In the morning, I like to pour myself a hot steaming mug of coffee. The coffee helps me clear my mind and start the day. But what if, groggy and disoriented, I reach into the cupboard and blindly choose a mug? And, not only is it not my 100-reasons-why-lawyer's-are-essential mug, but it is a mug with a mug-shot on it! What? How is this possible?

Well, it is possible. Recently, the Art and Artifice blog, on art and law, commented on old mugshots being placed on coffee mugs for commercial sale. There is an excellent discussion on the blog concerning the legalities of this. Privacy and reputation is an issue as well as the philosophical question of when have criminals paid their debt to society? Is the legal punishment enough or do we, as a society, require something more than that? And, do we have a right to require more? 

How would these mugs go over in Canada? Certainly, a fundamental Charter value is individual dignity and self-worth. Privacy is one of the most personal and therefore strongly held Charter rights we enjoy. Usually privacy rights give away to security and protection of society - just leaf through the Criminal Code and the Anti-Terrorism Act for examples of that. Reputation is also a right protected through the Charter. In the SCC case of Hill, Justice Cory said this about reputation:

 Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights.  It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.

So it appears these mugs could potentially damage one's reputation as well as possibly become an unsanctioned form of punishment.

Does the source of these photos matter? In Canada, this too may be an issue. On a reading of s. 2(3) of the Identification of Criminals Act (R.S.C., 1985, c. I-1), identification/arrest photographs can only be used for the purpose of

affording information to officers and others engaged in the execution or administration of the law.

So it appears the photos can be used for a photographic identification line-up but can’t be used for commercial purposes. If so used, is there an illegal search and seizure argument? Is there a civil suit for the harm caused by an illegal search and seizure and the resultant damage to a reputation?

I will leave that to you to ponder.

Is "Innocent Nudity" Expression?

When is a nude a nude and when is being nude, contrary to the Criminal Code? When you walk through a local park sans clothing or when you go through a Tim Horton's drive-through with nothing but your charms to recommend you.

Today, in my human rights class, we talked about just that. Is nudity expression? And if so, does s. 174 of the Criminal Code, which prohibits public nudity, violate s.2(b) of the Charter

It appears Ontarians, Mr. Coldin and Mr. Cropper, would answer yes to both. Both men are charged with public nudity under s.174  of the Criminal Code and their counsel have argued a Charter violation. According to these avowed naturists, their nudity is an expression of a oneness with nature, in other words going au natural for nature. This "innocent nudity," they argue has expressive content and should not attract criminal penalties. 

First, the class tackled the issue of expression: is nudity expression? Well, it turns out the answer is not so clear. What is the expressive content of nudity? Is wearing nothing able to express anything? Let's just ask the Emperor who thought he wore new clothes. Was he "expressing" something when he waltzed down main street in his natural born state? Perhaps. And Coldin and Cropper, are they saying something through their nudity? I say yes. An expression of "getting back to nature" and an expression of "let's get back to the basics in this overly material world." Could this be a call to arms (uncovered of course) for an Occupy Nature movement? 

Now we have determined expression. How about the restriction? See anything wrong with the Criminal Code section? The class did.

s.174(1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

As Arnold Horshack would say, hand raised, "Ooh-ooh-ooooh."  How about this. It harkens back to the basic principles of criminal law, which require a minimum mens rea requirement.This offence may not be a true crime and attract a subjective liability requirement but does this section even permit an objective liability standard? Section reads more like an absolute liability offence: you are nude, you are guilty.

Aha, you say. How about that lawful excuse? What kind of "lawful" excuse could there be for being nude? Okay, you sleep in the nude, fire alarm goes off in the middle of the night and you jump out of bed and run outside stark naked. So the lawful excuse seems to be: I did not intend to be publically nude. A lack of mens rea, which is a required element of an offence, as a lawful excuse?

I could go on, but I will stop here.

What kind of offence is this anyway? Is it Charter bad or Charter good? What do you think?

Bodily Substance Warrants Under s. 487.05

Some criminal law fun!

In my criminal procedure and evidence class at MRU, we discussed warrants to take bodily substances for DNA analysis under s. 487.05 of the Criminal Code. Such samples must be taken in accordance with the investigative procedures as set out in s. 487.06, which include taking samples by the plucking hairs, by the taking of buccal swabs, or by the taking of blood by "pricking the skin surface with a sterile lancet." A peace officer, who "by virtue of training or experience" may be authorized under the warrant to take these samples.

Okay. I was a little concerned with this. Potentially a non-medical person can be authorized to take a sample of blood based on "experience" only? In the words of my teenage daughter: OMG. Calm down you say - under s. 487.06 this procedure is done by "pricking the skin surface with a sterile lancet." Sounds easy doesn't it? Well, take a look at the WHO Guidelines for Drawing Blood and it doesn't look so easy or, quite frankly, so safe. This is a medical procedure and there are possible medical outcomes.

In contrast, take a look at the blood sample warrant authorization for imparied/over 80 offences involving death or bodily harm under s. 256. Such samples must be taken by a qualified medical practitioner "who is satisfied that taking the samples would not endanger the person's life or health." This is what we want! We want medical procedures to be done by qualified people. We want samples to be taken only if the benfits outweigh the harm. Why are we not providing the same protection for taking bodily samples for DNA purposes?

Yes, s. 256 authorizes the taking of blood samples, which is more invasive than a skin prick by lancet. Agreed. But there are still potential health risks whenever blood is taken. Particularly when the person taking the sample may be doing it "by virtue" of experience and not necessarily training. 

Answer? We need some safeguards albeit not the high level of safety mandated by s.256. Otherwise, such authorization may be contrary to Charter rights and values. But I will leave that discussion to you.