Can R v Antic “Bail” Out The System? A 150th Birthday Wish

R v Antic is a welcome decision from the Supreme Court of Canada. No one can argue with a re-affirmation of what is at the core of our criminal justice system – the presumption of innocence. Justice Wagner neatly reminds us of the key role that the principle of fundamental justice has in our adversarial system. Indeed, one can argue that the presumption of innocence is at the very heart of our system and reflects a cherished societal value. That value is not just a “legal” one but a moral one as well. To presume people are essentially “good” is a comforting thought and one we should promote and celebrate. But, as recognized in the Antic decision, we tend to forget the “good.” This type of “reminder” is needed in the courts of law where justice is meted out in often chaotic circumstances. “Justice” happens in times when the court list seems endless and in circumstances where the parade of in-custody accused make it difficult to separate them into individuals. The Antic decision should make for a pause that is welcome.

Antic not only assists in humanizing the system but also in ensuring the courts, when faced with a heavy case load, are mindful of the authority it wields. The “ladder of liberty” approach the judicial interim release section creates is not something to be side-stepped or even two-stepped. Each rung must be deliberately weighed before proceeding onward and if a rung of the ladder feels “right,” if the weight placed on it works, then pursuant to section 515, the journey stops. It stops because reasonable bail is constitutionally guaranteed. It stops because the presumption of innocence is weighing in on the side of justice. It stops because it should.

 

Bail is complicated. If you ask any Provincial Court Judge what exactly they do day in and day out, they will tell you two things: bail and sentencing. The beginning and end, so to speak. These two procedures are the book ends of our justice system and without the proper use of them, the whole structure can fall and fail. In the post-Jordan fall-out, we need to be aware of these bookends and what a culture of complacency means as it relates to the proper administration of justice. Are we missing something then when we point fingers at trial delays or is it merely part of the heavy weight the system feels as it climbs up the rungs of the ladder.

 

Antic should then be a call to action for everyone. A call to be ever mindful of the underlying core values that push our justice system along and that make it an integral part of our unique Canadian democracy. In a few weeks, we will be celebrating our 150th year as a nation. We should at that time also be re-committing ourselves to the Charter values that define us and bring us together as a nation. This includes respect for the proper administration of justice through our commitment to make the system better for all those who walk its halls. This can and should be done by all stakeholders working together for, as Justice Wagner described it, an “enlightened criminal justice system.” Let’s take direction from the highest court and instead of resisting change, let’s make it happen. This is my birthday wish for Canada. Let’s blow out a candle and see it done.

A Fresh Look at Fearon: How Language Informs The Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Terrorism And Exceptional Circumstances: Is There A Public Interest In the Right To Counsel?

The recent tragedy in Boston and the terrorist related charges in Toronto and Montreal have left North Americans reeling: the concept of domestic terrorism and our society’s ability to, not only respond but to also intercept such events has become an issue. In the case of Boston, the investigators have invoked the public interest exception to the giving of Miranda rights or, in Canadian terms, the right to remain silent and the right to counsel under the Charter. Coincidently (or not), Harper’s government introduced the reinstitution of the extraordinary powers in the Anti-terrorism Act on the day the Canadian terrorist plot was uncovered. These powers were subject to a “sunset clause” whereby their viability is to be reviewed and re-enacted every three years. Not surprisingly, the powers were re-enacted by Parliament within days of the Toronto/Montreal terrorism arrests.

There is no question these powers are extraordinary, permitting “investigative detention” on the basis of suspicion alone, not just for the brief period approved by our Supreme Court of Canada but also for an extended period of time, up to three days. This power is, on the surface, completely contrary to the long list of legal rights an individual has when suspected of a criminal offence as found in sections 7 to 14 of the Charter. In order to understand how this piece of legislation can survive a Charter challenge, we must look to the concept of “public interest.”

As early as 1985, in the earliest days of Charter jurisprudence, the Supreme Court of Canada, even while creating a Charter vision, was also envisioning a world without a Charter. In the Re B.C. Motor Vehicle Act case, Mr. Justice Lamer, speaking for the majority, tackled the still troubling issue of the need for criminal intention for a criminal offence as opposed to the no-fault concept found in absolute liability offences. In the Courts opinion, section 7 of the Charter through the “principles of fundamental justice” required mens rea or criminal intention for crimes. However, the same principles did not require full criminal intention for a public welfare or regulatory offence. For those quasi-criminal offences, where jail was a possible sanction, the SCC found the minimum intention required was a less fulsome type of intention akin to negligence. However, if a public welfare offence, where jail was a possible sanction, required no fault element as in an absolute liability offence, this violated s. 7 of the Charter and was deemed unconstitutional. No fault was only available for regulatory offences where jail was not a penalty. Justice Lamer, in coming to this conclusion, made two very interesting, and now very relevant, remarks on the “public interest” dimension found in Charter analysis and on the possibility of the inapplicability of the Charter in certain circumstances.

One of the arguments in support of absolute liability or no-fault offences urged that the “public interest” necessitated such offences in certain public welfare situations where the public good was at issue and the risk of public harm was engaged. Justice Lamer agreed but underlined the limited application the “public interest” aspect would have in Charter analysis. In his view, the public interest was not relevant to whether or not absolute liability violated the principles of fundamental justice under s.7 as a loss of liberty where no intention was required would always be contrary to s. 7. However, it was relevant to the s.1 analysis, section 1 permitting the reasonable limitation of a Charter right, which the government could establish was “demonstrably justified in a free and democratic society.” Thus, the government in establishing this justification could refer to and rely upon the “public interest” as a justification.

Another argument supports no-fault offences on the basis they are easier to prove and therefore more efficient or the “administrative expediency” argument. In the case of regulatory breaches, such efficiency would permit timely responses to scenarios of possible public harm. Justice Lamer soundly rejected the sacrifice of Charter values to administrative efficiency but with an important caveat: such a s.1 justification could only work “in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” 

It is this seemingly innocuous throwaway line (or obiter dicta), which I suggest will become the permission to suppress Charter rights in the name of terrorism.  In this way, an individual’s rights are not giving way to societal rights, in the sense that societal concerns trump individual protection. Instead, an individual rights actually become imbued with a “public interest” dimension. Thus, no longer can we speak of categories of rights created to protect the individual as the lines between rights become blurred. Indeed, we must now recognize that the individual is subsumed into the collective through the ever-present spectre of the “public interest.” Continuing on this line of reasoning, it is easy to see how even the jealously guarded right to counsel becomes expendable when “exceptional conditions,” like terrorism, rears its ugly head. Time may also show that this dimension will be carried further and become part of the right itself, not just a tool for justification by the state under s.1 but I will leave that analysis for a future posting!

 

 

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

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

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

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

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

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

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

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

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

 

A Balancing Act: The Supreme Court of Canada and Testifying Behind The Veil

In two concurring reasons and one dissenting reason, the Supreme Court of Canada, in the N.S. decision, has continued the Charter discourse surrounding conflicting rights. Unsurprisingly, the majority message, written by Chief Justice McLachlin, is one of balance and accommodation on a case-by-case determination. The Trial judge must weigh the conflicting rights in the context of the case with due deference to Charter values. The values, however, are flexible, adaptable, and tolerant of each other. In the Charter arena, there is no room for immoveable values, which are fixed and unbending.

This approach does, on the face, appear to be consistent with the Charter itself, which guarantees rights and freedoms but not absolutely: they are subject to the reasonable limits of a free and democratic society. This, however, is a liberal concept, a concept born in the revolutionary times of the 18th century when religion was given a tempered view in favour of scientific and provable reasoning. As a result, the question remains whether the balancing act proposed by the SCC will provide enough protection to freedom of religion/belief in an age where having a belief system is not required in a free and democratic society.

On the other hand, the traditional concept of criminal law based on the presumption of innocence and fair trial, as values to be balanced, may very well be eroded by this balancing act as well. Critics of the SCC approach might properly ask: how can the very essential core concepts of criminal law ever be subject to accommodation? Some values, those critics would argue, should never give way or they will fail to stand on their own. Interestingly, these concerns form the basis of the concurring judgment of Justices Lebel and Rothstein.

Justice Abella’s dissent is not based on religious rights as a concept to be jealously guarded, but is based on Charter values flowing from earlier Charter cases on protecting the vulnerable members of our society such as children and women. Her dissent focuses on the very real issues of access to justice and the marginalization of those less powerful sectors of our society. This viewpoint becomes even more important in light of the recent release of Wally Oppal’s Report on missing women and the trend toward dismissing the rights, or even the existence of, prostitutes, the homeless, and Aboriginal women.

In the N.S. decision, we see a microcosm of Canadian society: differing viewpoints arising out of the same context, which reflect strongly held values, but which also reflect the true legacy of the Charter as a document that encompasses, and tolerates, all.