Engaging the Criminal Justice System Through JH v Alberta Health Services (As Originally Edited & Posted on the Ablawg website)

We often assume the contours of the criminal justice system are clearly delineated in law and in fact. For a lawyer, every criminal case is immediately identifiable by its style of cause, the ubiquitous “Regina v”. For the non-lawyer, criminal law is a standout in media reports, providing eye catching headlines and a riveting Saturday morning read. We may not know every criminal offence abounding in Canadian law, even though s 19 of the Criminal Code, RSC 1985, c C-46 – which provides that ignorance of the law is no excuse – suggests we should, but we certainly know crime when we see it. What we are less successful at identifying are those situations where the criminal justice system merely lurks in the background chatter of a decision or when the factual matrix does not involve overtly criminal behaviour. In those less obvious scenarios, the case narratives do not engage our interest so readily. In short, we miss the criminal law-ness of the situation. Yet, in these cases, the criminal justice system is, in fact, fully engaged but we criminal law observers simply miss the connection. By missing this connection, we may not appreciate the impact of the case. Instead, we misfile the decision or, worse yet, dismiss the decision as unimportant or inapplicable. By failing to read between the lines, we are missing out on the richness offered by interdisciplinary case law. The recent Alberta Queen’s Bench decision of Madam Justice Kristine Eidsvik in JH v Alberta Health Services, 2019 ABQB 540, is a good example of a case that transcends the purported area of interest – it is a mental health law decision that engages larger issues borrowed from the criminal justice system. In JH, the criminal justice system is fully engaged and plays a vital role in the outcome.

 Justice Eidsvik’s decision, firmly based in the administrative health law arena, reads, sounds, and acts like a true criminal law case. Admittedly much of this criminal law-ness is suggested by the application of the Charter. But the Charter is acting at the behest of the criminal justice system when Eidsvik J. finds that the involuntary committal regime of the Alberta Mental Health Act, RSA 2000, c M-13 (MHA) violates sections 7, 9, 10(a) and 10(b) of the Charter (at para 140). In striking down these provisions, Eidsvik J. is engaging the full force of the criminal justice system. Through this decision, health law becomes criminal law as legal rights familiar to the criminal justice system – such as arbitrary detention and the right to know the reasons for that detention – become the central issues in the case. In this way, the JH decision identifies as pure criminal law with all of its emotive and authoritative qualities. 

Emotion permeates a criminal file. The factual narrative makes us direct witnesses to the event evoking the shame, pain and sorrow felt by all the people involved. True, the legalistic language attempts to deaden us to those painful circumstances. Nevertheless, an emotional response is acceptable and part of the criminal law-ness. In this same way, the JH decision provokes us. Reading the decision, we are shocked, saddened, indignant or just plain angry. The case makes us want to call out our administrative officials to “do better” and to text our government representatives to fix things quickly. The decision does this in different ways; it offers a purely legalistic view of statutory power, yet it does so by placing a mirror to societal conceptions of how “normal” people must and should act. It is a symbol of the universality of our justice system as pressing and persistent mental health issues span the globe. It is also a muscularCharter decision, requiring swift but thoughtful government action. For all these reasons, the JH decision represents the need to modernize our laws as a response to the marginalization of those individuals in our justice system with perceived differences. It is also an exemplar of the power of the Charter, which is increasingly a tool for change. 

For an excellent overview of the initiating factual and legal underpinnings of this decision, read Professor Lorian Hardcastle’s 2017 ABlawg commentary of the quashing of the mental health certificates in this case. See also, a follow-up ABlawg discussion on the constitutionality of the MHA sections written by then law student Kaye Booth and Alberta Civil Liberties Research Centre Human Rights Educator, Heather Forester. This earlier action was the individualized response to the improper actions that authorized JH’s detention in a mental health facility. The recent decision offers the flip side of the event, wherein the Court considers and applies the Charter to the systemic issues enabled by the MHA legislative framework. The two decisions can be read separately but we must recognize they flow one from the other. It is the human price paid that precipitates the Court-ordered remedial response. 

This decision is framed and filled in by JH, who is represented by initials to protect his privacy and dignity, yet who was stripped of both within the mental health system. Like Joseph K. in the literary fictional world of Kafka, JH could be any one of us and is, in fact, all of us as he finds himself in the hospital as a result of being a victim of a hit and run accident (at para 11). It is his physical well-being which needs treatment but as we know all too well, the physical often collides with the mental as the less tangible mental well-being of JH becomes the centre of medical attention. To be clear, all participants are acting with the best of intentions. Everyone is trying to “help.” However, like The Trial, which resides in the genre of “bureaumancy” where the surreal is found in the mundane, the story of JH unwinds incrementally, frame by frame, compounded by a series of everyday actions. Actions which transform JH’s sojourn in the physical treatment-side of the hospital into a long-term stay in the mental health side of the facility. Actions which lead inexorably to the penultimate decision rendered by Justice Eidsvik (see JH v. Alberta Health Services,2017 ABQB 477 (CanLII)). 

To the medical authorities JH checks all the boxes needed for an involuntary certification: he is homeless; he is cognitively deficient; he is prone to drink; he is uncooperative; he lacks community support; he is unwell. But there is an alternate story here: JH is homeless because hospitalization made him so; he is not cognitively perfect but how many of us are; his propensities are just that – inert possibilities; he does not co-operate because he knows he does not need this kind of treatment; he lacks community support because he does not “mentally” fit the criteria for a community treatment order; he is unwell because he is, against his will, being treated for a mental health issue that does not in fact exist. To end the recitation is the glaring fact that JHis a member of Canada’s First Nations and subject to all of the preconceptions residing within that identification. In short, JH is on the “other” side of society and needs the insiders help. This paternalistic view of JH can be found in many criminal law cases. 

 We have not exhausted JH’s life story or his deep frustration with an imperfect system, but the story now moves from the private to the public. It is time to consider the criminal law stance of this legal story. The first indication of the criminal law-ness of this decision is apparent in the initial 2017 determination by Eidsvik J. on the potential mootness of the Charter application (see 2017 ABQB 477). This is the “why bother” question the Crown raises on the basis that JH is out of custody. But the Court nicely responds to that question by underlining the societal impact of the MHA and the constitutional importance of her gatekeeper function that protects us all from legislative overreach (at paras 27 and 28). In this decision, JH has moved from an individual’s quest for justice to the overall integrity of the justice system. A similar journey occurs in criminal cases. This is the first indication that in the JH decision, the criminal justice system is fully engaged. The parallels are obvious. Unlawful detention and a lack of due process are familiar criminal law themes. In JH we experience the mental health justice system through those criminal law tropes. The veneer of non-criminal law does not matter. It may file the JH case under “health law” or “administrative law” or even “Charter rights” but it is still a case involving legal protections and rights afforded to all individuals when faced with state-like authority.

 Another way this decision parallels the criminal justice system is in the finer details. The decision is reminiscent of the use of the hypothetical offender in s 12 Charter litigation. A sanction or punishment is “cruel and unusual” under s. 12 if it is “grossly disproportionate” to fundamental sentencing principles (see R v Boutilier[2017] 2 SCR 936 at para 52). In this analysis, the hypothetical offender represents the potential reasonable scenarios in which the application of the impugned legislation could breach the Charter. In considering the effect such provisions would have on the hypothetical person, the court moves away from the particulars of the individual before them to test the constitutionality of the legislation in the broader context. Such a litmus test brings the legislation into sharper focus as the overall Charter cogency of the section is at issue. To quote the then Chief Justice McLachlin in R v Nur[2015] 1 SCR 773, hypothetical scenarios are not merely limited to the “bounds of a particular judge’s imagination” but are delineated by the “reasonable reach of the law” to understand the “reasonably foreseeable impact” of that law (at para 61). As in JH, perspective is everything.

 

Even though McLachlin CJC went on to characterize the scenarios as tools of statutory interpretation, the hypothetical offender is much more than simply a compendium of factoids used to illustrate unconstitutionality. Such hypothetical “people” are not the offender before the court, but they do exist. For instance, in striking down the mandatory minimum sentence of six months imprisonment for the possession of marijuana plants, the court in R v Elliott, 2017 BCCA 214(Can LII)(at paras 47, 48, 69 and 70) considers the not so hypothetical offender who attends university, lives in a basement apartment and grows 6 potted marijuana plants for home use. A 6-month jail sentence imposed in those circumstances would be “clearly disproportionate and shocking to the Canadian conscience” (see McLachlin, J in dissent in R v Goltz[1991] 3 SCR 485at 532). 

Similarly, in JH we have no need for the hypothetical person to shock our sense of moral right and wrong, but a real person caught in a shockingly familiar scenario (as suggested by Dr Baillie’s expert opinion evidence and by the evidence-based arguments advanced by the Intervenor, Calgary Legal Guidance at paras 3, 57, 154, 227 and 228). Turning again to the criminal law, in the most recent decision from Ontario, R v Luke2019 ONCJ 514(Can LII), striking down the mandatory minimum sentence for impaired driving, Justice Burstein also has no need to turn to a hypothetical scenario. Ms. Luke is an exemplar of the devastating effects of colonialism and the justice system’s failure to respond to Indigenous heritage as well as a youthful first offender with “strong rehabilitative potential” (at para 45). The same sense of criminal justice permeates the JHdecision. Granted my parallelism argument depends on a s 12 Charter specific analysis but in many ways JH’s treatment is “punishment” for being someone who is perceived as “outside” of the norm. Of course, being labelled and then being contained apart from the rest of society should not and cannot determine the applicability or availability of basic rights.

Further analogies to the criminal justice system can be found in the way the MHA regime parallels with other mental health regimes engaged by the criminal justice system. For example, after an individual is found not criminally responsible (NCR) for an offence, the mental health system takes over with a decidedly criminal law flavour. In that regime, the criminal conduct constantly frames the response. Another parallel can be found in dangerous offender applications, which are decidedly hybrid in nature. In those criminal sentencing hearings, the risk of harm and dangerousness is driven by mental health assessments and treatment potentials. Notably, these regimes, NCR and dangerous offender, have been Charter tested (see R v Swain[1991] 1 SCR 933and R v Lyons, [1987]2 SCR 309respectively). In the case of NCR, the regime was legislatively re-fashioned to ensure compliance with Charterprinciples of fundamental justice including “ensuring the dignity and liberty interests” of an individual in that system (see Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services),[2006] 1 SCR 326at para 26). 

Even with this constitutional tune-up, there are continuing issues with the Criminal Code’s s 16 mental disorder test and the ensuing NCR label. I have discussed these issues in episode 18 of my podcast series on the Criminal Code. In that podcast, I comment on the historical basis for the NCR defence, which is virtually the same as the original 1843 M’Naughten Rule fashioned by the House of Lords, some say, at the behest of Queen Victoria who did not take kindly to the acquittal of M’Naughten for his delusional killing of the PM’s secretary. A nice recitation of the history of that case and subsequent rule can be found on the CBC website

In my post, I also mention the continual drive to change NCR as a result of public and political influence such as the changes contemplated in the now defunct Bill C-54, which sought to implement stricter conditions on those found NCR as a result of public push back on the Vince Li case. Vince Li, who was suffering from schizophrenic episodes at the time of his killing of a fellow bus traveller, showed excellent signs of recovery after treatment resulting in a loosening of his treatment conditions. Notably, section 8 of the MHA, providing the criteria for involuntary committal, was amended in 2010 in an effort to implement better controls over those suffering from schizophrenia (JH at para 179). Loved ones dealing with the disease found the dangerousness requirement for involuntary admission as a “too little, too late” response preferring the criteria of “harm” to self or others or requiring an even less restrictive finding of “substantial mental or physical deterioration or serious physical impairment.” Ironically, “dangerousness” was originally added to the criteria to provide more protections for those vulnerable to involuntary committal and was touted as “a significant safeguard” by the implementing government (at para 176). This change in statutory criteria from dangerousness was significant and although implemented with all good intentions, resulted in the involuntary detention of JH as someone who could possibly be a harm to himself or deteriorate if he started consuming alcohol. JH’s situation emphasizes the importance of that hypothetical scenario as a yardstick for statutory change. Instead of applying this test after the fact, all legislation should be subject to a reasonable hypothetical test to ensure the legislation’s effects do not capture those who should not be captured or in the JH case, should not be detained at all.

Having engaged the criminal justice system as the contextual template in which this decision arises, the legal analysis is more easily applied. This unhinging of the criteria from dangerousness meant that the grounds for involuntary detention was not anchored in the objective and purpose of the MHA, which, according to Eidsvik J. was for the temporary detention of “acutely mentally ill persons for the purpose of treatment and release back into the community” (at para 189). The purpose was not long-term warehousing as exemplified by JH himself, who was detained for some 9 months. Another statutory authority was available for long-term concerns under the Adult Guardianship and Trustee Act, SA 2008, c A-4.2 (at para 189). There was no grounding of the loss of liberty to a valid and beneficial objective in the legislative criteria. This glaring gap in the legislative criteria was apparent upon review of other provincial mental health statutes. For instance, the Ontario Mental Health ActRSO 1990, c M.7, connects involuntary committal to previous history of mental disorder, previous successful treatment of that disorder and the need to treat that disorder at the time of the application. Importantly, these provisions were placed in the Ontario legislation after the decision in PS v. Ontario,2014 ONCA 900 (Can LII), which found earlier sections unconstitutional. 

The statutory interpretation not only closes the legislative gap in the MHA but also gives closure to the injustice suffered by JH. Criminal law cases often turn on statutory interpretation and the principle of legality, which “affirms the entitlement of every person to know in advance whether their conduct is illegal” (see R v Lohnes[1992] 1 SCR 167 at p 180, McLachlin J) and constrains the power of the state (see R v Levkovic[2013] 2 SCR 204 at paras 32 to 33). Here too, the authority given by the law to public health facilities must be constrained and people subject to that authority must understand how their mental well-being can engage that power.  

Finally, the JH reasons resonate like a criminal justice system decision because of the societal context that runs like a thread in the in-between spaces of this decision. Mental health issues are no longer hidden inside the hospitals but are discussed frankly in public in an effort to destigmatize individuals who may appear to be on the “outside” of society. More public airing of these issues promotes understanding and lessens the fear of “harm” from those struggling with these issues. Systemic institutions must be part of the answer and part of the conversation if we are to move forward to a less aggressive and more supportive response to those members of our community who need our help. The JH decision tells us that those who are at risk of losing their life and liberty need our special attention. It is now up to the government, who has one year in which to remedy the MHA, to provide the leadership towards the fulfillment of this goal. This should not be a difficult task. Justice Eidsvik, in suspending the finding of invalidity to allow the law makers a 12-month grace period in which to revise the MHA and make it Charter compliant, gave detailed directions to the government on exactly how to do it (at para 317). There should be no time spent in considering the next steps – the steps have already been mapped out with care through the careful consideration of the court.

But let’s not forget the personal story. The crux of this story is about JH and how we are conditioned to react to certain people and certain behaviours. Like a children’s fable, the JH story reminds us that the emperor’s new clothes can be created from thin air or a princess can be hidden in plain view until we finally decide to really look. The case also reveals a deeper truth about these fables: that such narratives are often built on a certain view of what the world should look like and how it should be peopled with those who conform to the old tales. But this is real life in 21st century Canada and our commitment or promise to each other, and more importantly to the Indigenous peoples of Canada, must be to treat each other with dignity, respect and understanding. And the law, as the JH decision has shown, has a role to play in accomplishing this.

 

 

Leaving A Paper Trail: A Comment on Bill C-75 (also posted on www.ablawg.ca)

Receiving the newest Bill tabled in the House on proposed changes to the criminal justice system brings to mind the image of opening gifts at a birthday party. Each gift is scrupulously wrapped in an array of cheerful paper with shiny ribbons. As each bundle is displayed, there is a jostling amongst the party goers – each eager to see the gift unwrapped to reveal the prize inside. The image goes only so far when it comes to the government’s proposed amendments to the Criminal Codetabled last week under the auspices of Bill C-75. Underneath the wrapping, over 300 pages of paper, is no prize but a maze of amendments and changes – a patchwork of pieces – some of which significantly change the criminal justice system. Although some of these amendments are welcome, others signal a significant shift in our criminal justice system. Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. Unfortunately, this omnibus Bill in many respects fails to be visionary. Rather, short-term administrative efficiency seems to be the prize under the mountain of paper.

To be sure, there are changes we can all agree upon such as the repealing of some decidedly dead offences disabled by the application of the Charter. The best Albertan example of the danger in leaving things unchanged that have been changed is found in the original decision of R v Vader,2016 ABQB 505 (CanLII). In that decision, s 230, unconstitutional since 1987 as a result of the seminal decision of Justice Lamer, as he then was, in R v Vaillancourt, [1987] 2 SCR 636, 1987 CanLII 2 (SCC), was resurrected to convict the accused of murder. That error was easily and quickly undone as, in Pandora Box fashion, the lid was slammed shut with the s 230 conviction adroitly converted into the constitutional manslaughter conviction (see R v Vader2016 ABQB 625 (CanLII)). Bill C-75 explicitly repeals s 230, and that is a good change.

In C-75, there are also some expected changes, such as the abolishment of peremptory challenges to jury members under s 634 to be replaced by the more meaningful challenge for cause procedure. Although these changes are for good public policy reasons (see my earlier post on the Stanley / Boushie case here), such changes, which turn an automatic process into a discretionary one, still require thoughtful and mindful decisions by all those involved, counsel included. Changes can provide better and more equitable outcomes, but changes do not, in and of themselves, guarantee there will be change, they only make change possible. 

There are also some unexpected changes or at least changes some of us feared but doubted would occur. For further comment on the efficacy, purpose and reason for retaining, in some form, the preliminary inquiry, see my previous post on the issue as part of a case commentary written in April of 2015, “Does the StinertDecision Signal the End of the Preliminary Inquiry?”. The abolishment of the preliminary inquiry, except for the most serious offences, is one change we feared for years and are still probably in a state of denial about as our fears have become a reality. I suppose we should be relieved that the process was not entirely eradicated but perhaps that was the plan; to lull us with a sense of false security. 

Another, smaller change, yet completely unexpected and unwanted is an important evidentiary change under the soon to be added s 657.01, permitting the admission of the “routine” evidence of a police officer at trial in affidavit format, without the hearing of that evidence. This evidence is not given in real time. It is not even given orally. It is proffered as affidavit evidence. In other words, it is tendered on paper. This effects a precarious step, a paper-thin one, toward the potential future of trials by paper in the criminal court. 

As mentioned earlier, part of the difficulty with this government’s approach to Criminal Coderevision is the lack of long-term strategic vision. Reading these amendments, there is a sense that some of these changes were made without thinking them through to their ultimate end and without mentally testing them in a real trial scenario to determine how they will ultimately play out in court. For these changes to be meaningful and workable, yet still upholding the principles of fundamental justice, we rely on our government, before they change the law, to ask themselves why they are in fact changing it. We want the government to think before acting and ask whether the contemplated change is for the better.  Finally, we rely on the government to make these changes in an effort to enhance the criminal justice system while preserving the protections of those whose liberty is at risk. I emphasize to enhance, not to make the system more efficient. Efficiency cannot be and has never been the only reason for reform. Efficiency is not what we want from our justice system. That is not what the Jordan (2016 SCC 27) and Cody(2017 SCC 31) decisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about.

As is typical with omnibus Bills, instead of stopping at what needs to be done, the government went above and beyond by also adding under the proposed s 644(3), an ability to convert a jury trial in mid-trial into a trial by judge alone, in the event the number of jurors fall below the number required to continue the trial. Although this can only be done by consent of both parties and therefore appears innocuous and not worth commenting on, my question is – why? A decision to have a jury trial is an accused’s Charterprotected right. Why would the loss of that right as a result of the inability of the jury to continue logically mean that the accused is good to go without one? Why incentivize a change which should not occur for that reason? Why not, instead, permit a jury trial to continue with less jurors than presently permitted? It seems that this change as with the admission of routine police evidence, sworn but not tested through viva voceevidence, is for one reason only – expediency. 

I harken back to Justice Lamer’s comments on the role of expediency in criminal law in Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC)(at para 85). This decision is an early Chartercase on the unconstitutionality of an absolute liability regulatory offence where there is a potential loss of liberty through a term of imprisonment or probation. An absolute liability offence requires no proof of a mental element and is therefore, where there is a potential loss of liberty, contrary to the principle of fundamental justice, “from time immemorial”, that an innocent person not be punished (para 85). Justice Lamer recognized that administrative efficiency is the driving force behind such regulatory offences, as the regulatory regime could be enforced quickly and efficiently through proof of the prohibited act only. To climb into the mind of the regulatory defendant, often a corporate one, would prove to be too difficult and contrary to the overarching objective of regulation, which is protection of the public from unsafe regulatory practices. However, where a criminal law sanction is used, Justice Lamer opined that only in exceptional circumstances, such as “natural disasters, the outbreak of war, epidemics,” would such administrative efficiency “successfully come to the rescue” of such a breach of s 7 (at para 85). Otherwise, life, liberty and security of the person should not be “sacrificed to administrative efficiency” (at para 85). These sage words written thirty-three years ago still have meaning. The principles underlying the Charterand indeed “from time immemorial” cannot be thrust aside in circumstances where the government has alternatives or simply, in a rush to please, has not given careful consideration to those changes. The justice system may be bending under its own weight, but the answer is not to shore it up with a quick and easy fix.

The admission of “routine police evidence” in paper format, as mentioned earlier in this post, serves as another prime example of the government giving all due consideration to administration without considering the rationale or “end game”. Presently, through our rules of evidence, we can make judicial or formal admissions at a criminal trial pursuant to s 655 of theCriminal Code. The section reads very broadly and confers a discretionary right on the defence to “admit any fact ... for the purpose of dispensing with proof”. Typically, such admissions are made in a written and signed agreed statement of fact or agreed admissions, depending on the nature of such admissions. They are often used to admit continuity of an exhibit which a police officer has seized in order to relieve the Crown and the officer from minute descriptive recitation of exactly where the exhibit was located at every point in time of the investigation. Such admissions can save court time and are efficient. They are to be used as indicated – to dispense with proof. This signals to all parties that if a fact is not admitted, the Crown must prove it. Easy and simple to use. Fair and efficient. Enter, the proposed s 657.01, permitting police evidence be admitted at trial in affidavit format. The first question to be asked is why? Why do we need such a paper heavy process when the accused already has the use of s 655?

Let’s go through a faux question and answer period to illuminate the point. The response to those “why” questions may be as follows: admissions under s 655 are formal and therefore binding and conclusive. The new proposed section permits admissions of fact informally, permitting the accused to lead evidence contrary to those affidavit facts, leaving the trier of fact to make the final determination of the issue. I see. Good point. However, so the response may be, if this form of evidence is to be treated like all evidence, in that it is subject to the assessment of the trier of fact, then what exactly is the point? Aha. Clever. But, the responder responds, the point is to relieve the police officer from attending court. A police officer’s attendance, if not required, costs the government time and money. Oho, is the response to that salvo. So, the reason for this is administrative efficiency. Not quite, is the response. An accused can also request an officer attend. Really? So, says the responder. So now the burden is on the accused to speak up and ask for an officer to attend court, to give evidence as is his or her duty, and to present themselves for cross-examination only upon request despite the principles engaged in full answer and defence. When once the status quowas the Crown shouldering the responsibility to present in court testable evidence as part of their obligation to prove guilt beyond a reasonable doubt, now the accused must request it. What was a given is now a discretion. Another point in time for the possible exercise of judicial discretion. Another addition to the now enhanced gatekeeper function of the trial judge. Another point in time where a self-represented accused might be overcome by an overly cumbersome process. Hmm. This seems awfully familiar. Isn’t this what happened to the preliminary inquiry? Once it was a default position to have one unless the accused waived it. Then, it became a request. Now, it will be virtually gone, but for exceptional penalty circumstances. But this is mere process – relax, is the final word from the government. The final response may be – look at what happened with expert evidence – complacency in its admission and a failure to test the evidence resulted in miscarriages of justice until courts were forced to recalibrate the focus. 

Finally, we have the Charter statements on these new amendments so crucial to the governmental approach. These statements, according to the government website on the issue, “are intended to provide legal information to the public” on “some of the key considerations that inform the review of a proposed bill for consistency with the Canadian Charter of Rights and Freedoms.” In this instance, the government provides justifications for the amendments, couched in Charter speak, relying on a broad range of rights, such as s 7 in its various forms, the s 11(b) right to a trial within a reasonable time, the s 11(d) presumption of innocence, and the right to equality under s 15. However, when viewing the admission of “routine police evidence,” for instance, this concern for the Charter feels ingenuine. Despite the government’s Charter statementsto the contrary, a sacrifice of one Charterright, such as limiting s. 7 full answer and defence, for another Charterright, such as using administrative expediency to temper s. 11(b) unreasonable trial delay, is not consistent with the spirit and vision of the Charter. Balancing may be needed but balancing requires a proper weighing of these rights in light of our case law. As Justice Iacobucci remarked in the majority decision in R v Oickle, [2000] 2 SCR 3, 2000 SCC 38 (CanLII), the Charterrepresents the “bare minimum below which our law must not fall” (at para 31). Indeed, “the Charter is not an exhaustive catalogue of rights” (para 31). From “time immemorial” we have assiduously protected due process rights as a reflection of our rule of law. Our government may want us to accept the bare minimum but we in Canada deserve more. We see the government’s attitude in those carefully crafted Charterstatements, which on the surface advance transparency but are so carefully polished, they reflect rather than reveal. Self-serving in nature, these statements publicly maintain the proposed changes are consistent with or advance Charter rights, but it is more by the saying that these changes do this than by the fact they truly do. In other words, by saying so, the changes become so. So, it is written, so it is or must be. Whether written in stone or merely on paper, those statements should not be the outward public face of these changes. Again, Canadians deserve better – we deserve to hear the rationales and the potential outcomes. Hear it, not find it in the trail of papers.

(with thanks to the ABlawg team for editing this piece)