Does Legal Language Matter?

Law has a reputation problem. I don’t mean the lawyers-can’t-be-trusted trope that litters the internet and bad jokes circuit. I mean the other reputation for being boring, dull and obtuse. Sadly, law comes by this reputation honestly. To an untrained eye, that lengthy Supreme Court case makes one’s eyes glaze over. Oh, and that lease agreement produces a big yawn. But legal writing need not be dry and without life. In fact, legal writing is coming into its own as cases are written in a more engaging and accessible way. Take the Supreme Court’s commitment to “plain English” case summaries or the number of court jurisdictions that tweet out short and inviting case briefs (see Alberta Queens’s Bench twitter feed). 

But this accessible and engaging writing is also finding its way into case decisions; the bastion of legalese. Of course, “accessible” and “engaging” are sometimes two different kinds of writing. Let’s look at “accessible” writing. In legal circles, accessible writing is an access to justice issue. Not every person involved in the justice system has the luxury of a lawyer to inform them of the issues in an easily translatable manner. Admittedly, not all those who do have lawyers receive this kind of information either. In any event, particularly with the advent of free online databases of decisions such as CanLII, it is increasingly clear we in law need to be clear in our writing. More importantly, case decisions should be understood by those whose lives are bound up with the outcome. The accused, the victim, the injured party and defendant all need to be able to read the final decision on their case and understand what did or did not happen to them. To be sure, judges write for many audiences but none more deserving of knowing than the aggrieved parties to the action. 

Interestingly, most case decisions are not specifically directed to the parties. They are written in the third person. The judge references their names and does not generally write in the second person by using the pronoun “you.” This is in sharp contrast with many political speeches. John F. Kennedy’s famous inaugural speech of 1961, is an example of where “we the people” were specifically entreated to “ask not what your country can do for you—ask what you can do for your country.” Making writing personal brings the individual into the bounded space of the page. It brings a sense of identity and an emotive response to the words. This power of words to move people is likely the reason for not writing case decisions in the 2nd person as case decisions must also double for case authority and precedent. Like Sgt. Joe Friday in Dragnet, it is better to just stick to the facts, particularly if the purpose is not to create an emotional response but to create an authoritative voice. 

Yet, directing the decision to the person affected, particularly in sentencing an accused, can send the right (write?) message. If one of the principles of sentencing is to rehabilitate or even denounce the behaviour, making the sentencing words powerful can speak to the offender on a different level. I am not thinking of a strongly worded chastisement of an offender but an accessibly written reasoning for punishing the offender. No doubt this goes on without a written record as most cases managed in provincial court are done in the moment without written reasons. However, there are notable case decisions such as R v Armitage, 2015 ONCJ 64, where the sentencing judge, Justice Nakatsuru, intentionally sentenced the Indigenous offender in a language the offender could relate to and understand. In my 1L criminal law class, I have the students read parts of this decision as a prime example of meaningful plain language legal writing. It is beautifully written and as readers we feel we are in the courtroom, hearing the judge speak frankly and directly to Jesse Armitage. 

In another sentencing decision, this time a young offender, Judge Janzen of the British Columbia Provincial Court, directs the entire decision to the offender by using the pronoun “you” in R v BLA2015 BCPC 20. Another example, a powerful one, of speaking directly to the offender, is R v MacGregor2005 CanLII 33746, an impaired driving sentencing by Judge Ayotte of the Territorial Court of the North West Territories. In this sentencing, Judge Ayotte explains to the offender, at pages 2 to 3, why their conduct is serious and how it can impact many lives,

When you drive in that condition, you turn your vehicle into a potential weapon. It was observed by the Chief Justice of Alberta, not the present one but a few years ago, who, of course, is the Chief Justice of the Territories, that the only difference between the drunk who gets home safely and the one that does not, is pure dumb luck.

I can tell you that in the years that I have spent on the bench, there has been more than one occasion where some otherwise upstanding good citizen has sobered up the next morning to realize that he or she has killed someone. It happens regularly.

Many of our citizens don’t understand the seriousness of the problem. Parliament has gone to extraordinary lengths to fight it. I will give you some examples. Ordinarily, a Court has the option in imposing sentence, of simply imposing a term of probation without more. We are prohibited from doing that for a drinking driver, even a first offender. There must be at least a $600 fine.

Ordinarily, Courts are given a choice of sentence, fine, gaol, probation, or a combination of those things. In some cases, as you found out in your case, the Crown is given the power by serving this notice to take away that Court’s choice and require a term of imprisonment. It is unusual for a Court to lose its discretion. Parliament does not do that sort of thing lightly. They do it because of the immensity of the problem in this country of the drinking driver.

 The decision is in both first and second person as the judge explains the law, explains the public wrong and does so as if the judge and the offender are sitting at a kitchen table having coffee. This is an accessible decision, which uses the power of words in a compassionate and personal way. I also recommend this short sentencing by Judge Ayotte in R v Modeste2005 NWTTC 10. But there is no better testament to a well written decision than another judge’s comments. Judge Doherty of the British Columbia Provincial Court, in sentencing an offender in R v Paul et al, 2005 BCPC 693, relies on a decision of Judge Ayotte with these words,

I am impressed with the care that Judge Ayotte took in R. v. Lamouche, et al, in the Provincial Court of Alberta, Criminal Division, reported at 1998 ABPC 101 (CanLII).  When I say impressed, I am impressed with his opening and the reasons he sets out.

Sentencing is understandably well suited to the personal touch. It is more difficult to personalize reasons for conviction or judgment. But this does not mean it cannot be written in an accessible manner. For example, Justice Feehan, who now sits on the Alberta Court of Appeal, writes clear straight forward decisions in his civil and criminal cases (see e.g. 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd2018 ABQB 478). Such a task becomes more difficult in the appellate courts where the rule of law, not the rule of plain English is of main concern. On the appellate side, Justice Doherty from the Court of Appeal for Ontario, continually produces decisions that illuminate rather than obscure. This is particularly important for a court dealing with contentious issues. An example of Justice Doherty’s style is in the decision, R v N.S.2010 ONCA 670 questioning the accused’s constitutional right to confront a witness who testifies while wearing a niqab. The simplicity of Justice Doherty’s language is enhanced by his scrupulous fairness is arriving at a decision. He sees the competing interests and he describes them in “human” language. For example, at paragraphs 45 to 46 he writes:

Before turning to the constitutional concepts and analysis, I think it is important to remind one's self of what is at stake in human terms. N.S. is facing a most difficult and intimidating task. She must describe intimate, humiliating and painful details of her childhood. She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence. The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members. It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

[M---d.S. is facing serious criminal charges. If convicted, he may well go to jail for a considerable period of time. He will also wear the stigma of the child molester for the rest of his life. In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M ---d.S. in a very different way. M---d.S. is presumed innocent. His fate will depend on whether N.S. is believed. In a very real sense, the rest of M---d.S.'s life depends on whether his counsel can show that N.S. is not a credible or reliable witness. No one can begrudge M---d.S.'s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him. 

The two perspectives summarized above reveal the quandary faced by the preliminary inquiry judge. Both M---d.S. and N.S. have powerful claims that seem to lead to diametrically opposed conclusions. 

This kind of writing reflects the reality of criminal law and brings the issue to the citizen. This is accessible and engaging writing, but it is also powerful; not in the authoritative sense but, in the sense that through the power of words, the decision animates justice.

 A final comment on the use of the second person “you” pronoun. Notably, in the charge or instructions to the jury, the judge does use the pronoun “you.” Again, this device serves to bring directly to the jurors their personal responsibility to assess the evidence and arrive at a just and reasonable decision. The use of “you” attracts the duality of a jurors duties as well; each juror swears to act impartially and uphold the law but must do so collectively. 

There are some jurists who tend to the literary side. Their decisions are remarkable as they employ literary devices. Justice Watt, another experienced former trial judge and now appellate justice, writes in a muscular literary style, reminiscent of a par-boiled detective novel, as he starts his factual considerations in a clipped no-nonsense manner. A good example of this is the decision in R v Wolynec2015 ONCA 656 in which Justice Watt introduces the facts and the conclusion in paragraphs 1 to 9 as follows:

A lone bandit robbed a bank. He wore a grey hoodie. And sunglasses. He had a dark French goatee. He was soft-spoken when he asked the teller for cash. He made no gestures, nor any express threats. 

The next day, a few blocks away, the same thing happened. A lone bandit. A hoodie and sunglasses. A beard and moustache. But this time, the bandit presented a note. It said he wanted money. And that he had a gun. 

A short time after the second robbery, police found a grey sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper. And on the newspaper, somebody had printed “have gun give me all money”. And on the top of the newspaper sat an open napkin similar to those supplied by restaurants. 

Police seized the sweatshirt. And the newspaper. But not the napkin. 

A few months later, a technician found a crusty tissue in a pocket of the sweatshirt. On the pocket and the tissue, a scientist detected evidence of bodily fluids. The chance of somebody other than Victor Wolynec being the source of the bodily fluids was one in 57 billion. 

A judge found Victor Wolynec guilty of both robberies and imposed concurrent sentences of imprisonment of 9 years. 

Victor Wolynec claims that the trial judge failed to adequately scrutinize weaknesses in the evidence adduced by the Crown and failed to grasp the position of the defence. As a result, he says his convictions are unreasonable and a miscarriage of justice. 

Victor Wolynec also challenges the sentence the trial judge imposed. He contends the sentence is too long, crushing any prospect of rehabilitation or reintegration into society. 

These reasons explain why I have decided that Victor Wolynec`s convictions are unassailable and his sentence fit. I would dismiss his appeal from conviction and grant leave but dismiss his appeal from sentence.

Note, how Justice Watt uses the first-person pronoun “I” to notify the reader that he takes full ownership of the decision. He also creates a partnership with the reader by stating the reasons to follow will provide an explanation for his conclusion. So too in the Armitage decision, Justice Nakatsuru uses the first person in the first few paragraphs to explain why he, the judge, was writing the decision for the offender. “I am writing for Jesse Armitage,” so says the judge at paragraph 5.

Yet, first person case decisions are unusual, despite the use of it by Justice Watt to frame his reasons. This is because case decisions are not about the judge personally or the judge’s feelings; the judge is not a party to the action but must be impartial and unbiased. The use of “I” perhaps personalizes the decision too much, making it more about the decision maker than the decision. Naturally, this does not mean a judge must abandon their past and become “sphynx-like” (see R v Adano2008 CanLII 23703 (ON SC) at para 23). A judge is a person too but not the first person in a case decision. Conversely, by eschewing the “I”, it could be argued the judge is depersonalizing the decision too much. In effect, we often need to read between the lines to understand the context of the decision and to humanize it. 

Recusal applications, in which the court is asked to step down from a case due to reasonable apprehension of bias, may be another kind of first-person decision.  Although, such applications are not to be viewed as personal affronts, it is difficult to suggest they are not. The test is an objective one; what the informed reasonable person would conclude. But the test is applied to a highly emotional situation where the trial judge is allegedly not acting “judicially.” The “I” is there no matter how arms-length the test may be and no matter how much law is recited.

 Engaging language in case decisions can also lean on humour. In a recent Ontario decision on a summary judgment application, Austin v Bell Canada2019 ONSC 4757, involving statutory interpretation and comma placement, Justice Morgan remarked at paragraph 47 that “despite their physically small stature, commas have created controversy in important places.” After more grammatical parries and thrusts, Justice Morgan concludes at paragraph 69, “I do not believe it was a legally induced comma.” Humour can relieve the tension, but it cannot take the place of legal principle; the decision is now under appeal. The case will be reviewed not on the basis of its candour but on the basis of its law. 

Another notably light-hearted decision is in Henderson v Henderson, 2016 SKQB 282, in which Justice Danyluk determines custody of the family pets. He opens the decision by stating a known truth that “Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.” The light heartedness turns a corner as the judge chastises the couple for wasting scarce judicial resources on the issue and urging them to settle this difference outside of court in an effort to “move along” the matter.

 For language we can all live by, the Charter decisions rendered by the Supreme Court of Canada are hard to beat. Interestingly, the Supreme Court Justices often use first-person personas, even when they are speaking on behalf of other justices. Justice Wilson, in particular, writes from the heart when in a separate but concurring judgment in R v Morgentaler, [1988] 1 SCR 30, she writes at page 164 that 

The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.

This passage beautifully encompasses the yin and yang that is the dichotomy of the Charter; it encapsulates collective principles that are enshrined for the individual. Later in R v Lavallee, [1990] 1 SCR 852, she continues to bare what society tends to want to bury and tackles the legal tolerance of spousal abuse as a reflection of society as “laws do not spring out of a social vacuum.”

 Connecting the past to the present, Justice Abella knows how to open a decision by capturing the reader’s attention. On the pressing issue of media rights under s. 2(b), Justice Abella in her opening paragraphs 109 to 110 in R v Vice Media Canada Inc., 2018 SCC 53,maintains that 

 For twenty-five years, this Court has flirted with acknowledging that s. 2(b) of the Charter protects independent rights for the media. Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s. 2(b). The words are clear, the concerns are real, and the issue is ripe. A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury — there can be no democracy without it.

Similarly, in the earlier decision of R v DLW[2016] 1 SCR 402, Abella J commenced her dissent in paragraph 125 with the deft use of good old fashioned metaphor by stating that 
“This case is about statutory interpretation, a fertile field where deductions are routinely harvested from words and intentions planted by legislatures. But when, as in this case, the roots are old, deep, and gnarled, it is much harder to know what was planted.” The living tree, indeed.

But it is the s. 8 search and seizure decisions, in which the normative world collides with the legalistic one, where the writing rouses our passions and requires us the reader to take part in the decision making. In Hunter v. Southam Inc., [1984] 2 SCR 145, Justice Dickson, as he then was, in determining the constitutionality of what he called an authorization of “breathtaking sweep,” remarked the then “new” constitution has 

an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

This reiteration of Lord Sankey’s “living tree doctrine” repatriates our fundamental values as a Charter principle and gives the reader a sense of Canadian destiny and nationhood. Fast forward to a more recent decision with Justice Karakatsanis dissenting in R v Fearon,[2014] 3 SCR 621, in which she calls out what is at the heart of s. 8 when she reminds us at paragraph 103 that “an individual’s right to a private sphere is a hallmark of our free and democratic society.  This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination.”

There are many more examples of clear, accessible and engaging language used in case decisions. Instead of the exception to the well-worn trope that the law as written is unreadable, these kinds of cases should be the expectation we have of our justice system. Our laws are ours and to be accessible, readable and meaningful, we look to those who wordsmith on a daily basis to bring us into the legal system as a true partner in its creation. Does legal language matter? I leave it to the reader to decide.

 

 

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.

 

 

A LOOK DOWN THE ROAD TAKEN BY THE SUPREME COURT OF CANADA IN R V MILLS

Perhaps we, in the legal world, should not have been surprised by R v Mills2019 SCC 22, the most recent decision on privacy and the application of that concept in the section 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Millsmay be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word.

I have already suggested the facts matter and they do. Mills was charged with offences, colloquially described as internet child luring offences. Through the medium of social network, luring does become decidedly lurid as sexually explicit messages and pictures are sent to entice children. In Mills, the contact with fourteen-year old “Leann” led to the “in person” meeting, which ended in the arrest. All seemingly run of the mill, so to speak. But what “made all the difference” in this case is the reality of “Leann” as a false identity for a police officer. In many ways, this investigative technique is no different than many other undercover operations such as police posing as sex workers or drug dealers. But what makes this technique unique is the manner in which the investigation was done. By filtering the technique through internet wires, the relationship possibly becomes a “private communication” attracting s. 8 Charter interest. At the core of this argument lies the “ghost in the wires” and whether there is a reasonable expectation of privacy in this type of internet communications. 

I say “this type” of “communication” because of the decision in R v Marakah,2017 SCC 59. There, the majority viewed text messaging between potential drug dealers as a private communication. Stripped of the bad personhood attached to that messaging, the majority called out the relationship engendered by such communication as attracting a reasonable expectation of privacy. Like the “reasonable hypothetical offender” (See e.g. R v Morrisey2000 SCC 39 at para 2)  or, to use the new age term, “reasonably foreseeable applications” (See R v Morrison2019 SCC 15 at para 170) used in s. 12 analysis, the messages become a statement of content neutrality (See Mills at paras 25, 110, 117­–122). There is no value judgment placed on Marakah’s bad choice of friends or even worse, his bad judgment to deal drugs. Instead, the focus is on fostering relationships, as in the law of privilege, and what it takes to protect and maintain private relationships in the context of law enforcement. In this way, the concept of communication as relationship-building is further explored in s. 8 through the relationships we see ourselves having with the state. 

Interestingly, the dissent in Marakah held onto the hard focus of hardware by emphasizing the container in which the communications were residing (at para 151). This view is an easy extension from previous s. 8 case law including the majority in R v Fearon, 2014 SCC 77, viewing the search and seizure or rather, as in the case of digital devices, the seizure and search of the device as the key to the analysis. However, this perspective failed to recognize the pervasiveness of the privacy issue throughout all aspects of s. 8. From standing to s. 24(2) exclusion, reasonable expectation of privacy creates the Charter space for the s. 8 discussion. Unsurprisingly, Mills does not step back into the container as the analytical driver of the decision. Instead, it is the meaning of relationships, which creates the patchwork of decisions in Mills

Yet Mills does not just define relationships worthy of s. 8 protection. Nor does the decision define relationships in a vacuum. Rather it defines relationships in the context of the normative standard embedded into the reasonable expectation of privacy analysis. In R v Reeves2018 SCC 56, Justice Karakatsanis, at paragraph 41, touted the “normative, not descriptive” standard as the overarching theme of s. 8 to acknowledge what we in the cyberworld already knew – that electronic conversations are human not machine directed. Instead of this free-floating concept of human relations, the majority in Mills takes this chimerical-like quality of normativeness and pins it squarely onto the Criminal Code. Just as the criminal law reflects our fundamental values by underlining those acts worthy of moral approbation through just sanctioning, so too does the normative quality of s. 8 reflect the morally based vision of a safe law-abiding society.

In Mills, the Supreme Court is not navel gazing or conducting blue sky visioning. In Mills, the majority looks directly at the conduct in question, no neutrality here, and sees the so-called relationship between a child “stranger” and a criminally-minded adult as unworthy of protection. Section 8 is not a shield; it is not the “happy place” where we are free from state intervention, and it is certainly not the private place where we can propagate illegal conduct to our hearts’ content. Yet, this normative view does not take away from the shades of privacy previously recognized by the Supreme Court. As in R v Jarvis2019 SCC 10, privacy has a universal meaning. In this way, a relationship stylized by the manner of communication or defined by a space where privacy ebbs and flows, what will be protected through s. 8 is deeply contextualized. This is vertical contextualization, in which the Court drills down deeply through the stakeholders’ strata. The “totality of the circumstances” is viewed not just through the accused’s lens, not just through the perspective of the victims, but also through the community’s sense of justice. As in other Supreme Court decisions, where the public interest shares space with individual rights (See e.g. R v Jordan2016 SCC 27 at para 25) normativeness involves collectiveness.

Nevertheless, rejecting the Mills scenario as Charter worthy still keeps the s. 8 conversation alive. True, in essentials, Mills is about what is not a privacy right under s. 8. Yet, the decision also provides the contours for what is or possibly still could be engaged by s.8. For instance, the intersection of electronic communications and Part VIinterceptions of that communication is still very much in issue. From the pseudo-majority of Justice Brown to the pseudo-majority of Justice Karakatsanis (I say “pseudo” as Justice Moldaver concurs with both decisions making both majority judgment worthy) including the minority view of Justice Martin, the presence of surveillance becomes the indicator of interception. For the majority, surveillance is decidedly old-school involving state authorities who are outside of but looking into the private lives of citizens, whilst Justice Martin flattens out surveillance as the state, no matter where placed, looking at citizens, no matter where located. Certainly, Justice Martin’s description is more attune with the Internet of Things and the connectivity we all now experience in which no-one knows who is watching whom. To distill the differing viewpoints on the issue, this is “watching” versus “intruding.” Of course, since Hunter v Southam[1984] 2 SCR 145 and the s. 8 textual conventions since that decision speak of state intrusion. Watching, on the other hand, is much more insidious, much more powerful, and of much more concern to the community sense of justice.

Another issue unresolved by Mills is the Charter applicability in the transitional grey area between state intrusion to state participation. If s. 8 of the Charter is not concerned with investigatory techniques in which the state initiates a conduit for enforcement, then when does s. 8 become relevant? This is where previous case decisions provide no clear answer. To see this obfuscation, we need to look the intersection of two scenarios. One scenario focuses on third party consent while the other engages the Mills situation emphasizes when state intrusion is used, without prior judicial authorization, for the purpose of implementing an investigative technique. 

Third party consent is not novel. Like reasonable expectation of privacy, third party consent can impact all stages of the s. 8 analysis. It impacts standing issues through the measurement of control. It impacts whether state authorities have lawful authority to seize and access an electronic device belonging to the accused or a third party. Just as privacy is not an “all or nothing” concept (R v Jarvis, 2019 SCC 10 at para 61), neither is third party consent (See R v Cole2012 SCC 53). People share ideas, homes and hearts. People can too share control and authority over an object or a conversation. Millsdistinguishes the state as initiator of the private communication from the state as intervenor into a private communication despite consent from a third party. There is still Charter room in the shared conversational space where a third party is involved be it the concerned family member who hands over a device or the individual participating in the communication.

Mills permits the state actor to be whomsoever they need to be for investigative purposes but also as the initiator of the ruse. The decision leaves open the scenario where the concerned or involved third party hands over a device and the state authorities continue the conversation under the cover of the true participant of the communication. Here, there is still an intervention or a looking into a communication albeit through the eyes of the known recipient. There is a relationship, however the majority or minority defines it. Even if the original participant consents, Millsdoes not pronounce on the efficacy of that unauthorized intervention. This means, in Supreme Court terms, that we can expect more decisions on the issue.

 You may have noticed that I referenced in my opening paragraph a much-loved poem by Robert Frost, “The Road Not Taken.”  The poem is famous for symbolizing life’s choices and where they may or may not take us. In fact, that is not what the poem is about despite our ubiquitous reference to it as a life changing or even life affirming metaphor. When read carefully, the poem suggests we misread our life decisions. “Ages and ages hence” we will tell a tale of how we stood on the brink and choose a more challenging life journey. Yet, in actual fact, there was no such life altering choice to be made at the time as the roads “equally lay” “just as fair.” Perhaps the same can be said of the Mills decision. The decision does not take us down a road that makes “all the difference” but through the same interconnectivity of privacy ideas we already have before us. ‘Same but different’ may be an apt description of this decision and other recent Supreme Court rulings. Indeed, the fractured decision best mirrors who we are as a society, which is far from cohesive or uniform. 

We are presently very much at the crossroads of privacy and in the criss-crossing wires of the Internet of Things. There is an element of uncertainty as we stand at that intersection. But uncertainty may not be such a bad or scary prospect. Looked at with eyes wide open we can assess the potentialities of s. 8 and see perhaps through the differing perspectives of Mills a way forward taking with us a vision of who we want to be.

 

Some Thoughts On Property, Privacy, and Criminal Law

I have been spending a good portion of my time outside of my regular duties with mooting competitions and writing a paper. One task is seemingly very practice minded while one purely academic. I see it differently. Engaging in an analysis of a case decision produces a repository of creative and imaginative arguments, which can have practical impact in court. To understand a case decision is to embark on a legal and literary adventure that serves as the inspiration, the creative spark, for new unknown approaches to old known areas of the law. 

To be sure, at first glance, doing a theft under case in provincial court has little to do with a Supreme Court of Canada decision on s 8privacy rights. Or does it? Theft is a public law offence yet by its very nature it is about private rights. This is mine not yours. It is about territory and possession. But hidden within the weeds, within the legal structure of theft, is the conflict between public and private which s 8 engages. This conflict can be seen, for instance, in the defence of colour of rightthat is embedded into the elements of theft. Although mistake of law is generally no excuse, when it comes to believing what is mine is mine, it provides a complete answer to a theft charge. That shows private rights abound in criminal law, but privacy, as a personal motif, is an entirely different matter. 

Private rights are not necessarily privacy rights. Yet, there are distinct parallels. In by-gone days when a phone was static, involved a dial, and could not fit in your pocket, the privacy concepts protected by s. 8 were territorial and oriented around the immediacy of personal space. Although s. 8 was in place to protect the person and not a place, it did protect the person’s personal territorial space. Territorial space may not be as solid as territory as land, but it has density to it and can be visualized. Picture the street view of Google mapand the Pegmanwho can be plucked up, carried, and placed into a circle of space. We are that Pegman when it comes to s. 8. Every placement serves to define our s. 8 rights with a property-like quality. This is my space not yours. That is until modernity arrived to displace the solidity of territory. And with that newness came a totally different conception of privacy, cut free from the shackles of Google. Or, maybe more accurately, detached from the map that is Google to be re-imagined in the same cyberspace of Google, the internet platform.

How this new formulation of privacy impacts old considerations of property interests me. Section 8 search and seizure law has kept pace with modernity and changing societal values, but property law seems to lag far behind. Theft, for instance, involves the taking or conversion of “anything” under s. 322 of the Criminal Code. This taking deprives of the owner of that “anything.” Although, the “anything” is typically a tangible thing, it may consist of a conversion of an intangible, as is the case of a taking of a bank credit for instance. However, even this unseen anything is seen in the inner eye. We can all visualize and objectify a bank credit into money in our wallet. The solidity of which cannot be denied. 

The difficulty arises when the “anything” of theft is an idea or better yet as in R v Stewart, a 1988 decision of the Supreme Court of Canada, the theft of confidential information. There, a document containing confidential information, was copied, and therefore not considered a taking of “anything.” The information was still available to the original owner of the information and there was no deprivation. Policy dictated that such wrongs be righted through the civil law not underlined by the condemnation of the criminal sanction. This narrow view of what can be stolen may be driven by policy or even, as Justice Lamer suggested, by the desire to let the lawmakers in parliament create such crimes, but it is nevertheless an antiquated approach to what a person “owns” or “possesses.”

The decision in Stewartcertainly does not wear well when viewed in the s. 8 context. It also confirms that in the property crime world tangibles, or those things that can be objectified, matter most. In today’s connected world, it is mind over matter as tangibles dissolve into a web of technology. Parliament, at least, paid Stewartsome heed and did legislate crimes relating to the misuse of computer images and data. But these new offences seem to be a concession to Stewart, not in defiance of it. True, confidential information can be memorized and copied leaving the information still available to the original owner or originating source of that information. It is not, however, the availability of such information that impacts the deprivation resulting from the taking of that information. By taking the confidential information, through cutting and pasting or through storing it in the Cloud, the original owner or source of that information is deprived of control of that information and deprived of choosing when, how and in what format that information would be released and used. 

We can push the property envelope even further if we look at “taking” through s. 8 Charter REP (reasonable expectation of privacy) eyes. A taking of confidential information would be considered a search and seizure pursuant to s. 8 of the Charter. In s. 8, we see a movement away from the castle-like solidity of territorial privacy to the ephemeral empty cyber spaces where we build castles in the wires. It’s in s. 8 where the full expression of privacy as a virtue is protected and nurtured. Ideas, thoughts and confidences do not just reflect an attitude (despite thoughts to the contrary in R v Benson,2009 ONSC 1480) but form an individual’s biographical core. It is that taking of data, that deprivation of choice in terms of when and how we disclose our secrets, which gives property perhaps a new and different meaning under the criminal law.

 

 

 

ENTER OR NOT HERE I COME? THE TENTATIVE (AND NOT SO TENTATIVE) VIEWS IN THE REEVES DECISION

Finally, a SCC decision where the concurring judgments discuss at length what they say they won’t discuss at length. It’s refreshing to read a decision that is so SCOTUS in approach – an Opinion – and two concurring Opinions at that. In R v Reeves2018 SCC 56, the newest decision from the Supreme Court building on the vast case law in the area of s. 8 of the Charter, the two concurring decisions by Justice Moldaver and Justice Côté take up an issue “benched” by the Justice Karakatsanis’s majority decision. In deciding Steeves has a reasonable expectation of privacy in a shared computer, the majority deems it unnecessary to decide the ancillary issue of whether the police entry into the home shared by the Reeves and his partner was legally justified in the first place.

This situation particularly resonates for me as a professor teaching 1Ls fundamental criminal law concepts. The cases I teach are rife with “we will get to that another day” sentiment. In JA[2011] 2 SCR 440, for example, both the majority of the then Chief Justice McLachlin and the dissent of Justice Fish leave open the Jobidon issue of consensual sexual activity that involves bodily harm. Again, in Mabior[2012] 2 SCR 584, Chief Justice McLachlin, after referencing sexually transmitted diseases other than HIV throughout the judgment, disappointedly states that “Where the line should be drawn with respect to diseases other than HIV is not before us” (at para 92).  

The majority in Reevestries to employ a similar yet different tactic to deflect a decision on the issue. Instead of the tantalizing suggestion that there will be some case on the horizon which will engage the issue squarely on, Justice Karakatsanis suggests the issue may be present but assessing it is unnecessary because there was a s. 8 violation in taking the computer and, in any event, Reeves’s counsel conceded the entry was lawful (paras 20 to 21). Furthermore, and here is the brush off, the issue raises “competing considerations” and to proceed without “full submissions” would be imprudent (at para 23). As an aside, Justices Côté and Brown, in their dissent in Trinity Western University,2018 SCC 32, took this same tack on the sticky issue of the standard of review as they declined to comment on the Doré/Loyola framework“in the absence of full submissions” (at para 266).

Despite this firm “no,” Justice Karakatsanis continues to explore the complexities inherent in such a decision (paras 24 and 25). That it invokes the intersection of the public and private spheres of our lives. That it highlights the nuances apparent in how we live those lives, raising questions of where and when our privacy becomes shared and if privacy amounts to mere physical space. I have explored the multi-verse of privacy and space in a previous blog posted on my Ideablawg website entitled, “Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and Private Living Space.” Overlaid is the societal desire to maintain public safety through the investigation of crime.The issue is, as suggested by Justice Karakatsanis, “complex” and requires a “considered response.” 

Yet, the presence of “competing considerations” is exactly why the concurring justices decide to give a response, considered or otherwise. For Justice Moldaver, a tentative response is better than none. In his view, direction from the Court is needed, albeit not binding direction. Justice Moldaver often gives advice to lawyers and trial judges when the issue requires it. For instance, in R v Rodgerson,[2015] 2 SCR 760, Justice Moldaver, offers some street-smart advice on how to run a murder case before a jury. In Reeves, Justice Moldaver does something different – he anticipates the issue as an issue and, in a forthright, make no bones about it manner, he states his “purpose in writing this concurrence is to express some tentative views on the issue of police entry into a shared residence” (at para 71). But that’s not all, the reason for writing something that is not a ruling, that is not a decision, that is not really even true obiter dicta as it is “tentative,” meaning he has not really made up his mind, is to fill a gap that is “a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.” This statement alone packs a wallop as Justice Moldaver anticipates an immediacy that cannot wait until another day. The matter is so pressing that it cannot wait for full submissions and cannot wait until he has fully formulated his opinion. This is, in other words, a matter of critical importance. It must be said.

Interestingly, “tentative views” have been offered in the Supreme Court previously. In eight SCC decisions such “tentative views” have been expressed. In the oldest such decision, St. John and Quebec R Co v Bank of British North America and the Hibbard Co1921 CanLII 574, Justice Anglin is not expressing a tentative view as much as he is making it clear that the tentative view he had of the case was not dispelled through oral argument (p 654). The other seven SCC decisions do express tentative views on matters on the basis those issues were “not raised before us” as with Justice Cartwright dissenting in Smith v The Queen[1960] SCR 776) and Justice La Forest in Tolofson v. Jensen; Lucas (Litigation Guardian of) v Gagnon[1994] 3 SCR 1022.

An instance where “tentative views” matter, as they presage the binding ruling and have precedential impact, is in R v Bernard, [1988] 2 SCR 833. In that case, Justice Wilson’s concurring decision (at para 93 to 95), on the constitutionality of the Leary Rule limiting the effect of intoxication on mens rea, ultimately became the majority ruling of Justice Cory in R v Daviault, [1994] 3 SCR 63 (see also R v Penno,  [1990] 2 SCR 865 and R v Robinson[1996] 1 SCR 683). Not only did Justice Wilson’s opinion become law but it caused Parliament to hastily respond by adding s. 33.1 of the Code.

The “tentative views” presented in Reevesby Justice Moldaver are well-thought out and do not seem tentative at all. His analysis of the basis for the police officers’ entry into the shared home with the consent of Reeves partner is based in principle and on an application of years of case authority building upon police officer’s common law ancillary duties. In his 27-paragraph discussion on the issue, he deftly “tentatively described” (at para 96) the police common law duty to enter a residence to take a witness statement for purposes of an investigation. He sketches out five criteria to ensure the authority is carefully circumscribed through a practical and common-sense approach to the potential intrusive situation (at para 96). Despite his belief that his comments require fuller attention in the future, he continues the opinion with his further belief that his scenario for common law entry by the police, without reasonable grounds to believe an offence has been or that evidence will be found of an offence, is nevertheless constitutional (at para 97). He draws upon case authority which permits intrusive police action, in certain contained circumstances, based on reasonable suspicion. He concludes in paragraph 99, that as his criteria for entry is specifically constrained that it “may well meet s. 8’s reasonableness requirement.” Again, the discussion is not that it “will” meet or that it “does” meet but that it “may well” meet. The virtue testing is left for another day.

But the issue is not really left on the corner of the bench. In paragraphs 100 to 102, Justice Moldaver then applies his “tentative articulation of the lawful authority under which the police could enter a shared residence” to the facts of the case. He assumes his formulation is constitutional and finds it “quite possible” that up to the time of actual seizure of the computer, Reeves’s s. 8 rights remain intact. To add to this speculative brain-worthy exercise, Justice Moldaver decries the paucity of the record as it does not contain sufficient facts to properly determine the outcome of all of the five criteria formulated as part of the test.

In stark contrast is the decisive concurring decision of Justice Côté. There is nothing tentative about this presentation of the issue. She calls out the majority for declining to consider the issue considering “it was ably argued by the parties” and impacts the s. 24(2) analysis (para 105). Justice Côté takes the issue head on and makes quick work of years of carefully crafted s. 8 principles. She boldly finds that police can and should be entitled to enter a shared residence, without a warrant, based on the consent of one party alone. She does so in 13 paragraphs without the need to formulate or constrain police authority. She does so by focusing the s. 8 lens not on the accused but on the valid, subsisting and present consent of the co-habitant. In Edwards-like fashion she keeps the spotlight on the presence of the consent thereby dissolving the s.8 issue on the basis of an absence of a search or seizure. The entry is simply an everyday matter of invitation and is not the heightened arena of the state intruding into the privacy of a citizen’s life. With a flick of the switch, s. 8 disappears in favour of the down to earth realities of hearth and home. 

By deciding not to decide, the majority set the stage for a showdown but not the quick draw we are used to in reading a Supreme Court decision. Instead, we have in R v Reeves, a slow-motion decision that requires us to patiently await the right case to appear to give an authoritative voice to the tentative one. Let’s hope we don’t need to wait too long.

 

 

 

The Vice Squad: A Case Commentary on R v Vice Media Canada Inc

Criminal law, as observed in high-level Supreme Court of Canada decisions, is the legal version of urban life. Principles jostle and elbow through a crowd of issues and facts. This hum of urbanity gives this area of law an edgy unpredictable feeling. Conflict abounds and at times there is a winner take all attitude. Other times, the result in a criminal case is more nuanced as urban sprawl is contained and the chaos is smoothed over through the application of principled and balanced ideals. The decision in R v Vice Media Canada Inc2018 SCC 53, is one such case. 

The premise is not very original. For years, journalists have gathered sensitive and volatile information from hidden human sources. This is the stuff of smart investigative reporting and it offers insightful but sometimes explosive reveals. Such was the case in Vice. Let’s be clear, Vice Media is a go-getter media outlet: a newish kid on the block, who with equal doses of style and aplomb combined with grit and tenacity, present stories with the urban flair expected of a here and now media team. In this case, the journalist connected to a prize – a source who was the real McCoy – a suspected terrorist. They exchanged, as all sharp social media-ites do, a series of text messages. But these were text messages with a difference. The journalist, by communicating with a suspected criminal, entered the “it’s complicated” world of criminal law. More than merely conversational, these messages were potential evidence and as evidence attracted legal meaning and weight. It was as if a school-yard scuffle was transformed into a Las Vegas prize fight. The journalist investigation was instantly transformed into a police investigation. With that transformation, the rules of the game changed. What was driven by the written word became transported through the portals of law.

The police moved quickly to secure and preserve the information, “under glass” so to speak, through the legal tools available. A production order under s. 487.014 was obtained quickly, silently and ex parte. Production orders are the aide du camp to the search warrant regime in the Code. When issued, they require the person so named in the order to hand over to the police the subject document that is in their possession or control. It is all about evidence, trial evidence, and what kind of information is needed to prove a criminal offence in court. With a stroke of a pen, the legal world encases the whirly-burly world of media in a glass case. Dynamic communication is crystallized, dryly, into documentary fact. However, this colourless coup still has some drama left to it. In this encasement, the formalistic legal rules must grapple with the equally formalistic journalistic rules. Here Vice meets Squad and legal principles run up against another as journalistic source privilege creates an impasse. It is up to the Supreme Court to reconsider the legal and journalistic landscape.

In the end, the Supreme Court agrees with the lower courts by upholding the presence of the law as the paramount concern in this media story. The production is properly issued and must be obeyed. But this story does not go out with a whimper but a bang as the Court, though in agreement in the result, does not agree in how they get there. This is truly the excitement and energy of the urban landscape as two opinions on the issue emerge. The majority, hanging onto the creation of law by the slim agreement of 5, is written by Justice Moldaver, the criminal law heavy-weight on the Court. Justice Moldaver is an experienced criminal lawyer and approaches the decision with his usual hardboiled common sense. The concurring minority decision is written by Justice Abella with her innate sense of the human condition. The setting could not be better for a decision on the realities of the urban scene.

Justice Moldaver opens with the obvious in paragraph 1 of the decision. There is an analytical framework, found in the 1991 Lessard decision, to decide the issue. As an aside, the framework, pulling no punches here, involves the balancing of “two competing concepts: the state’s interest in the investigation and prosecution of crime, and the media’s right to privacy in gathering and disseminating the news.” The issue here however does surprise. It is not a “business as usual” question, involving the application of that long-standing framework, but involves a deeper question asking whether the framework is actually workable. The law can create but, so the argument goes, the law must be useable. Principles may be lofty and imbued with high-minded values, but they must work on the street-level as well. What is said in Ottawa must be later applied in small-town Dundas, Ontario or main street Nelson, BC. If it can’t work there, it’s of no use, legally or otherwise.

Does that balance work? The majority believes it does with some refinement. Tweaking has become the new tweeting at the Supreme Court level. If it ain’t completely broke then don’t entirely fix it. Renos are a less costly measure. Justice Moldaver suggests just such a quick fix by importing a case-by-case analysis that permits a less mechanical application of rules and by “reorganizing” the applicable Lessard factors. But then, and here is where a tweak looks more like a re-do, the majority offers a modified standard of review (SOR). This, in the words of Raymond Chandler’sPhillip Marlowe in The Big Sleep, is like finding a “nice neighborhood to have bad habits in.” The spectre of SOR runs deep in the Supreme Court decision-making psyche. Rearing its head here of all places gives this decision a decidedly bête noire flavour.

We need a feel for the atmosphere before we take on this part of the decision. We are in the heightened atmosphere of “the special status accorded to the media” (para 14) as envisioned under the aegis of the Charterpursuant to s. 2(b). Freedom of expression in the form of media expression is, as I quote the dissent of Justice McLachlin in Lessard, more than the vitalness of the “pursuit of truth.” It is an expression and act of community. The press is society’s agent, not the government’s agent. Their actions give meaning to “expression” but also to “freedom.” As such, the press is “vital to the functioning of our democracy.” But, spoiler alert, the gravitas of this sentiment differs as between the majority and the dissent in Vice. It is this difference, which I suggest drives the decisions in this case more than anything else. In any event, Lessard, impresses s. 2(b) with the stamp of vitality promised by s. 2(b). It involves a boisterous labour action at a post office, the bread and butter of on the ground media reporting. The crowd was video-taped and the police wanted the recording as evidence for a criminal prosecution. Incidentally, my most recent Ideablawg podcast on the Criminal Codediscusses the sections on unlawful assembly and riots. In contrast, the facts in Vice, touch upon democracy’s innermost fear of terrorist activity. 

I should add that an additional difference in Viceis the presence of a confidential informant, who also happens to be the potential suspect. The law of privilege is an evidential oddity as it serves to exclude evidence which would otherwise be relevant and admissible in a criminal case. Through the protections afforded by privilege, the identity of a CI is confidential. This in turn promotes relationships in which vital information is exchanged. A CI is more apt to divulge information to a journalist with the knowledge there will be no adverse repercussions as a result. The kind of adverse repercussions as in Vice, where the information is used against the CI in a criminal investigation. This kind of privileged communication within a journalist relationship is not absolute and is subject to judicial discretion. Even so, the CI/journalist relationship adds a sharpness to the issue. For a fuller discussion on the vagaries of CI privilege, read my blog posting on the issue here.

In this media infused atmosphere, context is everything. That should be no surprise to anyone who has read a Supreme Court case in the last decade. In fact, we might say that context is not just everything, it is royalty, as principles seem to bend to it. Case in point is the majority’s view of the Lessardfactor of prior partial publication. Under the unrefined Lessard framework, if the information of the criminal activity sought by the state has been disclosed publicly then seizure of that information is warranted. Indeed, those circumstances may heighten the importance of that factor, which “will favour” the issuance of the order or search warrant. Justice Moldaver finds the Lessard approach turns a factor into a “decisive” one (para 39). Although it is arguable whether Justice Cory in Lessard would agree with that characterization of his comments, Moldaver J’s approach, to allow for context in assessing prior publication by favouring a case-by-case analysis, is defensible. Again, smoothing out the complexities through a good dose of common-sense driven principles.

Another area for revision involves whether the probative value of the information should be considered in the balancing and assessment of the Lessard factorsProbative value is connected to that basic rule of evidence I earlier referenced; that all relevant and material evidence is admissible. Facts, which make another fact more or less likely, are admitted into evidence as such facts have value or weight. The basic rule is subject to other rules that may render evidence inadmissible, such as bad character evidence. It is also subject to the discretionary exclusion or gatekeeper function of the trial judge to exclude relevant and material evidence where the prejudicial effect of admitting the evidence outweighs its probative value. Probative value is a measurement of the strength or cogency of that evidence. Probative value is not an absolute concept but involves relationships or connections between evidence. In fact, the probative value or weight given to evidence must be viewed in the context (there’s that word again) of the whole case. This explains Justice Moldaver’s position, at paragraph 56, that the probative value of the protected evidence is a consideration in whether the evidence should be accessed by the State. It is “a” consideration, not a stand-alone Lessard factor, as the production order proves is part only of the investigatory stage. It would be premature to place too much weight on probative value before the entire case is yet to unfold. 

This leads logically to Justice Moldaver’s further caution that probative value should not be dictated by hard evidential rules. Again, contextually and functionally this would be contrary to common sense. A production order or a search warrant is at the infancy of a case. These are investigatory tools albeit tools which may lead to trial. The information to be accessed are facts not evidence. They have not been filtered through the legal rules engaged at trial. They are anticipatory. Therefore, Justice Moldaver declines to import the Wigmore criteria of necessity to the assessment (paras 52 to 58). However, by permitting probative value as an overarching factor, the Court is scaffolding evidential concepts onto the investigatory assessment. Probative value is considered in issuing an investigatory tool, probative value is weighed against prejudicial effect in determining admissibility of evidence at trial, and, finally, probative value is weighed in light of the whole of the evidence to determine whether the State has proven the accused person’s guilt beyond a reasonable doubt. As the standard of proof increases, how much that probative value matters also will increase.

So far, the tweaking seems more of an oil change and lube: something to make the engine work better. But now comes the overhaul as Justice Moldaver announces a change in the standard of review (paras 68 to 81). For the Supreme Court, the standard of review is to the reviewing court like provenance is to art museums. No one can really rely on the reviewing court’s decision unless there is agreement on the standard by which that original decision is assessed. The standard of reviewing the issuance of an investigatory order was determined almost 30 years ago in Garofoli. There, Justice Sopinka clarified the review was not a de novo assessment in which the reviewing court simply substituted their opinion. Rather, it is an assessment as seen through the eyes of the issuing judge, looking at the information before the judge at the time but with the benefit of any acceptable amplification on review. This test has parallels with the air of reality test, a threshold test used to determine whether a defence is “in play” and can be considered by the trier of fact. The air of reality test requires a consideration of whether a jury properly instructed and acting reasonably could acquit on the evidence. With a review of an issuing judge’s decision, the review court asks whether “there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (para 69). 

This test is a deferential one, albeit not completely so. Although, the issuing judge is best placed to decide, there is wriggle room for the reviewing court through amplification on review. Additionally, the view through the eyes of the issuing judge is, here it is again, contextualized by the evidence before the reviewing judge. For instance, the reviewing judge can consider an application to cross-examine the affiant of the Information To Obtain as part of its review. If permitted, the evidence may provide further context to the original basis for the authorization. The difficulty with this approach, Justice Moldaver notes, is where the authorizing judge issues processex parte with only the State providing the grounds for such authorization. Warrants and investigatory orders are typically issued in an ex parte manner. The real difference in the Vice scenario is the inability for the media outlet to argue, at the time of authorization, against issuance on the basis of s. 2(b) of the Charter. They can argue this upon review, but then the standard of review is no longer de novobut on the basis of Garofoli

Deference is the true standard here. By permitting a more contextual permissive approach, Moldaver opens the door to a moveable feast of standards for review that is appears tailor-made to the situation or facts (para 74 to 81). Moving away from deference may be fairer but it also creates a non-linear hierarchy within the issuance of such orders. It also replaces deference with the other “d” word – discretion. But with that discretion comes responsibility. I have written previously of the enhancement by the Supreme Court of the Gatekeepers function in the last decade. To me, this modified Garofoli is a further indication that the trial judge carries the integrity of the criminal justice system on their shoulders. So much so, that just as Newton has “seen further ... by standing on the shoulders of giants,” trial judges raise the public confidence in the criminal justice system to the highest level. They are foundational to our justice system. 

All of this tweaking may be meaningless considering the revisions to the Codeitself now providing for the special case scenario of journalistic sources and specifically those sources arising in a national security context. Yet, the Vice decision goes beyond parliamentary intent. Indeed, the minority decision of Justice Abella does just that. Her legal world view is not suggestive of the hard-boiled common-sense of the majority decision. Instead, Justice Abella calls out the majority by emphasizing the invisible undercurrent of the majority decision which resides in the Charterand the sanctity of the freedom of the press. If the majority can be stylized as a Raymond Chandler novel, then the minority is Clark Kent in the newsroom. Tweaking won’t do here but action. The level of action is not shoulder height but up in the blue sky. The minority decision reminds us of what is at risk when we diminish the freedom of the press to the margins. It also reflects the current conflicts we see in the world today. 

For Justice Abella, the time is “ripe” (para 109) for a new world view that provides for a distinct and robust freedom of the press in s. 2(b) of the Charter. Logically flowing from such recognition is the need to change the Lessardframework to fulfill this new world vision. Not only is this change required due to the enhanced delineation of media s. 2 (b) rights but is also required by the potential violation of the media’s s.8 privacy rights. Privacy rights, through previous Supreme Court decisions in Marakah and in Jones, have also been enhanced and emboldened by the social landscape. They too matter in the application of Lessard. The issuing judge still balances under this enhanced (not just tweaked) test but does so in the clear language of the gatekeeper (para 145). For Justice Abella, the vividness of Charter rights must be viewed with eyes wide open as the judge may issue the order only when “satisfied that the state’s beneficial interest outweighs the harmful impact on the press should a production order be made” (para 145). Notably, Justice Abella agrees with Justice Moldaver on the issue of prior publication, probative value of the evidence (para 149) and on standard of review (157 to 160). Essentials remain the same, but it is the context which changes. 

Context appears to rule in the rule of law. Context is important as rules should not be created in a vacuum. In the end, law cannot be wholly theoretical, or it fails to provide guidance. However, contextual analyses beget different world views and serve to underline the differences as opposed to the similarities. True, the Vicedecision is unanimous in the result but worlds apart in the manner in which the decision-makers arrived there. Maybe this is another new reality we must accept as we jangle and jostle our way through the everchanging urban legal landscape. Maybe we need to embrace context and loosen our grip on the hard edges of legal principles. Or maybe we won’t. And that is the beauty of context – it truly is in the eye of the beholder.

 

 

 

Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada ​​​​​​​

The hot off the presses decision in Groia v The Law Society of Upper Canada confirms my belief that criminal law matters in all areas of law. Criminal law principles are foundational and have a reach beyond criminal case law. This is most evident in the rules of evidence where those principles do not distinguish between areas of law. Evidence is evidence no matter the context. It is the courtroom that gives the rules of evidence its perspective, not any particular area of law. There is a caveat to that proposition: some evidential rules blossom and find deeper meaning in the criminal law context where Charter rights provide a signpost to evidential rulings. In many ways, Groia borrows from the texture of criminal law, not only in the specific areas I will touch upon in this blog posting. The concept of fearless and resolute advocacy, peppered throughout the Groia decision, defines the criminal defence lawyer’s duty to her client. A client who faces the ultimate sanction of our justice system, a potential loss of liberty and societal condemnation. In some ways, the fact that Justice Moldaver, who authored the majority decision in Groia and began his litigation career as a criminal lawyer, references criminal law principles in the Groia judgment should not surprise anyone. Yet, to see not only outright usage of criminal principles but to also detect an almost metaphysical reliance on criminal law analysis brings a welcome richness to this decision. It also helps that the case is situated in a quasi-criminal law environment as a prosecution by the securities commission. A prosecution with a decidedly criminal law bent as Jay Naster started his career as a Crown prosecutor.

I need only concentrate on a few paragraphs of the decision to illustrate my premise. First, the outright usage of criminal law principles is palpable in Justice Moldaver’s finding that Groia’s conduct did not amount to incivility. In Moldaver J’s view, Groia made an honest mistake in his understanding of the rules of evidence, mistaking the Crown’s obligation to disclose relevant and material evidence with an obligation to consent to the admission of such producible evidence. Crucially, this honest mistake was sincerely held, an important factor in the analysis on whether there was a basis for Groia’s in court conduct. As Justice Moldaver suggests in paragraph 93, requiring an honest but mistaken belief as the foundational precept for the civility analysis is taken straight from the 1980 criminal law Pappajohn decision.  

Pappajohn is itself a seminal case, and a foundational one at that, taught in all first-year law school criminal law courses. It provides the foundational elements of mistake of fact in a sexual assault context - the defence of mistaken but honest belief in consent. It is the start of a long line of cases where the Supreme Court struggles with the parameters of such a defence and when such a defence should be left to the consideration of the trier of fact, known as the air of reality test. It is also an infamous case, which at the time of the trial in the late '70s caused a shock wave in Vancouver high society as wealthy business man, George Pappajohn was tried, convicted and incarcerated for the rape of a real estate agent. The case eventually led to the 1999 Ewanchuk decision where the Supreme Court made it clear that no means no and only yes means yes. On the pop culture side, the Pappajohn trial is also one of the cases dramatized in the radio series, and then later  television series, created by George Jonas(journalist) and Eddie Greenspan’s (legendary criminal defence lawyer) entitled the The Scales of Justice. When I teach Pappajohn, I bring in the script as published in the book series for the class to get a sense of the real-life drama surrounding the decision. Too often when we look at cases we forget the facts are not just a written narrative or story but are based in real life events. 

Although, Justice Dickson wrote for the dissent in Pappajohn, his framing of the defence of mistake of fact was adopted by the majority decision, authored by Justice McIntyre. It was Justice Dickson, who clarified the defence in Canada as an honest belief that need not be reasonably held as opposed to the English authority in Tolson (see pages 150 to 154 of Justice Dickson’s dissent in Pappajohn), which suggested the belief must be an honest and reasonable one. Later case law on the issue, particularly Chief Justice Lamer in Davis, emphasizes the need for the belief to be honestly or sincerely held, for the defence to cross the air of reality threshold. Reasonableness is not required but is a factor in determining the honesty of that belief. It is, in other words, part of the credibility assessment of the belief but not a controlling pre-requisite. In Groia, Justice Moldaver relies on this crucial distinction between an honest belief sincerely held and an honest and reasonable belief as a defining basis for finding Groia’s conduct as not deserving sanction (see para 92).

But that is not the only basis for this finding. The subtler reliance on criminal law principle comes as Justice Moldaver speaks of another aspect of Groia’s conduct; whether he was acting in good faith. Contrary to the dissent's interpretation of the majority’s position on this, Justice Moldaver suggests he is not conflating reasonableness with good faith. Indeed, he maintains these concepts act separate and apart. Here, Justice Moldaver relies on criminal law Charter language as he defines the concept of good faith in the same terms as the s.24(2)Grant analysis. Section 24(2) is a remedial section, triggered once the court finds a violation of a Charterright. It is a criminal law remedy as evidence can be excluded under this section on the basis of a breach that brings the administration of justice into disrepute.Grant is a sophisticated analysis that heavily relies upon societal norms and aspirations. It is a remedy that engages long-term goals of society and is firmly situated in the kind of society we want to live in as well as the kind of behaviours we will or will not tolerate as a society. It is firmly fixed in the public confidence in our justice system. Section 24(2) plays an educative role, a disciplinary role and an aspirational one. It is retrospective, in the sense it must revisit the past actions of the authorities in breaching the Charter, but it is prospective in its relief. Admittedly, after doing a couple of presentations on s. 24(2), I am attracted to the Grant analysis as I find the test to be an elegant and inspirational one. 

But back to Groia and Justice Moldaver’s pulling into the mix conceptual images from s. 24(2) in the shape of good faith. Part of the s. 24(2) analysis requires the court to assess the seriousness of the breach, in other words the seriousness of the Charter infringing conduct. In Groia-terms this can be equated to the seriousness of the alleged professional misconduct. Justice Moldaver in paragraph 93 enters into an ersatz s. 24(2) analysis as he describes good faith on a sliding scale “The more egregious the legal mistake, the less likely it will have been sincerely held, making it less likely the allegation will have been made in good faith.” This is exactly what is done in a s. 24(2) analysis. There, the court situates the police conduct on a “scale of culpability” with “inadvertent or minor violations” at one end and “wilful or reckless disregard of Charter  rights” at the other (see R v Paterson, 2017, SCCat para 43). All of this is, of course, reviewed in light of all of the circumstances of the case – in other words a contextual analysis.

Interestingly, this 24(2) like analysis intersects with the honest but mistaken legal mistake analysis undertaken by Justice Moldaver. As part of the s. 24(2) good faith assessment, the court considers whether the police were relying on an erroneous view of the law at the time of the events. This view of the law may be correct at the time but later changed through case law or it may be erroneously held through a mistaken understanding of the law (R v Vu2013, SCC para 69 & R v Duarte, 1990, SCC, para 60). However, there is an obligation on the police to be up to date on the law. They cannot rest on wilful blindness. A noted difference in the analysis is the requirement in Paterson at paragraph 44 of the majority reasons of Justice Brown that the good faith errors be reasonable. Negligence, in accordance with this standard, is not good faith and neither are unreasonable errors based on ignorance (see R v Buhay, 2003, SCC at para 59). As an aside, Justice Moldaver dissented in Paterson. In any event, this discussion must be kept in context – what Justice Moldaver is discussing is civility not competency. The line must be clearly drawn to ensure the integrity of our adversarial system and the buttressing concept of resolute advocacy.

It should finally be mentioned that at no point does Justice Moldaver reference s. 24(2) or the pertinent case law. In a contextual analysis such as this one, anything goes. Which leads me to the last point in this brief blog that obviously the Groia decision continues the Supreme Court’s predilection to contextualize. This modern approach to everything 'where context is everything' first appears in statutory interpretation principles (see Rizzo Shoes, 1990, SCC at paras 21 and 22) but has outgrown the written law to be a favoured solution to all problems. The contextual approach opens the rule of law door, which so often in the more rigid application of law is closed. Whether this open-door policy is a good one, I leave for another day but needless to say, the Supreme Court is certainly consistent. In the end, by using criminal law principles and Charter aspirations in areas not traditionally considered true criminal law, the idea of 'context is everything' is getting a large and liberal interpretation. In a very real sense, criminal law rules!

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)

Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and the Private Living Space

Sometimes law creeps into the most unlikely areas. I was sharing an article by Alex Bozikovic, the architecture critic in the Globe and Mail, with my son, who is studying for his Master’s Degree in Architecture. The article comments on a structure, a house, designed for a modern family, who requires multigenerational living space for aging parents. The plan of the house is at once typical, with kitchen, bedrooms and living space, but at the same time atypical as it accommodates “kitchens.” At the heart of the home is a lively transparent “public” space connecting the generations so, as suggested by the owner, to “allow us to be together when we wanted to be.” My son commented approvingly of, what he called, “the stratigraphy of semipublic and private” running throughout the design. What struck me about his remark and the design of the house was the acceptable integration and embracement of the public into the private. This caused me to pause and consider what this sentiment and the design behind it means for the future of the legal landscape.

In my criminal law focused mind, the immediate correlation this design concept has with law matters is in the area of section 8, search and seizure, which provides protection of privacy rights. As with all Charter rights, this protection is not absolute but is framed against the permissible intrusions into our private sphere for the purposes of law enforcement. To ensure this frame fits and sits properly within that privacy sphere, judicial oversight is required. The frame should sit lightly yet must cover enough of that sphere to ensure public safety is not compromised. Similarly, the greater good must not be advanced at the expense of who we are as a society. This delicate balancing is done through the judicial gatekeeper’s lens, which is carefully calibrated through case law with a “cut once measure twice” philosophy. Indeed, the recent decisions of Marakah and Jones, which I commented on in previous posts you can access here (Marakhah) and here (Jones), serve as an example of this balancing and re-balancing of privacy rights. The majority of the Supreme Court seem to be recognizing that privacy is not a static concept nor is it a contained one but is a changeable concept requiring the law to be as nuanced as those conceptions of privacy seem to be.

However, when I look at how architectural space is conceived, I wonder if our legal conception of space is in step with this living space formulation. In terms of Marakah and Jones, which only now recognizes the integration of technology into our “living” spaces and therefore changes our legal conception of those spaces, the concern becomes more fundamental: does the generation that fashioned “reasonable expectation of privacy” truly understand what this generation expects from their “reasonable expectation of privacy?” Public and private are not in opposition, but as vividly exemplified in the multigenerational design of the house, they live together harmoniously. But it goes further: public and private flow from one extreme to another continuously as the core meaning of these terms ebb and flow. When my son refers to the “semi-public” aspects of the house design, he isn’t just referencing the transparent walls which permits the public into that living space but is also referencing the semi-public inner space of the home, which fluxes between one generational family to another. Is our law that flexible? Can it understand the layering and flow of the new reality of space, which embraces public and private occurring within the same time frame and essentially creates a collapsing of time as space recombines these terms into one “space”?

The irony of this “new” conception of space is that it is not in fact new. In Ancient Rome and in Ancient Greece, the home or domus occupied by the upper class was both publicus, of the people, and privus, of the individual. The Ancient Roman domus, for example, was often sandwiched between commercial premises, which may be owned by the home owner as well. Additionally, the living space inside the domus was open to the public demands of the “master of the house” or the dominus, who would receive daily morning greetings (salutatio) from his clients (those whom he gave monetary and economic support to in exchange for their support often in the political arena). For more on this, start here. It is only as society expanded that our concepts of public and private separated. Now that technology has brought us in close contact again, it might be time to be open to a totally modern approach to the legally constructed frame of privacy rights.

Consistent with this view, is further commentary made in Bozikovic’s article calling for a renewed approach to land use laws, which traditionally precludes multigenerational home design. The article maintains that post World War Two, the vision of people living separate and apart but together in one community, was the essence of “tidy” modernity. But that vision is contrived as life cannot be contained in a pre-fabricated frame but must be permitted to bleed over the edges. The need to blur the lines between private and public may be contrary to the bright lines we are taught to expect from the law, but the alternative may be just as murky. Without a living and breathing law that is reflective of the generation who must live by it, we, sitting in the legal landscape, will be left behind.

This brings me to the final connection this article brought to mind, which is the future use of predictive analytics in legal decision-making. In this area the collision of private and public space is a matter of concern rather than a matter of celebration. If the Charter is designed to protect informational privacy as a matter of self-autonomy and dignity, then the prospect of our waking moments being mined for data in order to suggest what we may or may not do in the future is legally concerning. This concern becomes magnified when such big data is funnelled into a “black-box” algorithms which uses the information to deny people bail or sentence them to long terms of incarceration. This concern with transparency and accountability in the realm of analytics is now front and centre in the soon to be “live” European Union General Date Protection Regulation or GDPR. Although the legislation was approved in 2016, the rules contained therein will be enforced as of May 25, 2018. This regulation of data privacy couples with the AI Now Institute 2017 Report on the use of Artificial Intelligence or AI mechanisms through the lens of civil rights and liberties, bias and inclusion and ethics is a must read for those legal minds concerned with the computerized mind making choices and decisions that impact life, liberty and security of the person. In Canada, we need to be doing more open access discussion of these thorny issues which intersect law, technology and social science. For more information, I highly recommend a google search and follow on Twitter my colleague at the University of Calgary law, Emily Laidlaw, who does research and writing in the area of regulation of the internet. Her blog postings on the faculty’s ABlawg website can be found here. Finally, I add to this eclectic mix, a recent article based upon a conference in Barcelona on  Internet, Law & Politics entitled “Personal Data Protection as a Nonfunctional Requirement in the Smart City’s Development” by Lorenzo Dell Corte (Tilburg University & TU Delft), Bastiaan van Loenen (TU Delft), and Colette Cuijpers (Tilburg University) and the intersection between issues of privacy, regulation and the support for the Smart City integrating this new technology.

The kind of interdisciplinary work needed to truly unpack and understand these issues and the significance to the legal landscape is possible and needs to be done. In some ways the scholarly approach needed, involving law, architecture, technology and politics, is a micro-reflection of the “modern” spaces we will be living in and constructing in the near future. Considering that, it is time to broaden the legal landscape and allow the private and public to come in.

 

 

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

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

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

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

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

 

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

 

Some Initial Thoughts on the Senate Report on Criminal Justice Reform

Is delaying justice, denying justice? Yes, but the delay is a denial for all not just specific groups. Justice Cory in Askov recognized the societal dimension to a speedy trial. Although s. 11(b) is couched as an individual legal right, it is in fact a value we all share and an interest involving the public good. We all have a stake in justice and therefore we are all impacted when justice fails us. I have said this many times before – admittedly almost like a broken record – but what is as stake, when the justice system fails, is who we are as a nation. In our 150th year we need to look toward a cohesive and responsive future, which respects all citizens. To me respect comes from a robust and mindful justice system that provides access to those who need it and confidence to those who do not. Thus, the priority in the Senate Report to properly fund Legal Aid across the country should be, in my view, a number one priority.

Law reform is about “best practices.” Indeed, the interim Senate Report from August 2016 and the one now placed before us speaks of this.  “Best practices” is about excellence, integrity and confidence. It is about innovation and alternate strategies. Keeping this in mind, the Senate Report makes fifty recommendations to reform the justice system but identifies thirteen as uniquely pressing and urgent.

In my view, the highlight of these recommendations are the alternate strategies, looking at the administration of court in a subtle way or rather in a different way. Do we need to be bound by the traditional court structure or is there more we can do? Can we borrow from other cultures? Can we bring something that will work better? These innovative forward looking recommendations deserves attention and should receive heightened importance. Under this rubric, we can see many of these thirteen priorities as connected, such as the effects our justice system has on our Indigenous peoples of our country. Can we not learn from their unique perspective and collaborative approach?

Additionally, taking notice of mental health and the fact that substance abuse may go hand in hand with this issue is another priority that connects with innovative strategies and to me is extremely timely and urgent.  The increase of fentanyl use and the carnage resulting from it needs to be addressed. Again, specialized courts and embedded treatment centres id badly needed to address and alleviate the pressure on the justice system.

Again, connected to the above, is the call for a hard look at what needs to be criminalized under our Code. A better and smarter approach to what behaviour needs to be underlined by the criminal law will streamline the system and increase public confidence in the administration of justice. Often administrative penalties can provide the incentive to change behaviour where the criminal law cannot or does not.

Increased and better use of technological change is a must and is an integral part of court innovation. We have technology now but is it being used in the best way? Are we ensuring that the use of technology is sustainable and manageable? Are we providing the right incentives for all stakeholders to use the best practices when it comes to technology? This needs to be explored.

The idea of “judicial officers” to do some of the work of a judge or justice requires a deeper look. It is attractive and it can work to focus the system on those issues that need judicial oversight. However, we must ensure that such a change will not simply be shifting the work elsewhere. A simple shift will not change the culture of the court system.

I have not commented on some of the priorities which cause me concern. The issue of whether there is an alternate remedy under 24(1) to a stay is a complex issue. As a defence lawyer, I am hard pressed to envision an alternate remedy when the Charter breach involves the administration of justice, the most egregious type of Charter violation. Such a violation engages fair trial and full answer and defence concerns. It is a violation that recognizes potential for miscarriages of justice. It is a weighty issue which will need to be explored further by the courts and by me as well in a future blog posting.

Also, my view of the need to retain the preliminary inquiry causes me concern with the recommendation to restrict or end the process. I have spoken on this issue before and written about possible alternatives such as permitting a civil form of questioning where the inquiry is not to determine whether there is sufficient evidence for trial. The preliminary inquiry, as I wrote in my blog on the Stinert decision, is not just an archaic vestige of the past but can be an important safeguard in our justice system which has its roots in the all-important principle of the presumption of innocence. We must be cautious in moving away from such a protection.

I will end my initial thoughts here with a promise to delve deeper into the “big picture” of the law reform in a future posting. In the meantime, I encourage everyone to review the Report and to start thinking about what kind of justice system they envision for Canada.  

 

 

 

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.

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

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

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

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

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

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

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

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

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

 

Episode 45 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 50 Assisting the Enemy and Failing to Prevent Treason

Section 50 continues our discussion of prohibited acts under the Part relating to offences against the public order. Section 50 contains two separate offences: assisting an enemy of Canada to leave the country without consent of the Crown and knowingly failing to advise a peace officer or a justice of the peace of an imminent act of treason. The full section reads as follows:

50(1) Every one commits an offence who

            (a) incites or wilfully assists a subject of

                        (i) a state that is at war with Canada, or

(ii) a state against whose forces Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the state whose forces they are,

to leave Canada without the consent of the Crown, unless the accused establishes that assistance to the state referred to in subparagraph (i) or the forces of the state referred to in subparagraph (ii), as the case may be, was not intended thereby; or

(b) knowing that a person is about to commit high treason or treason does not, with all reasonable dispatch, inform a justice of the peace or other peace officer thereof or make other reasonable efforts to prevent that person from committing high treason or treason.

These offences are indictable and pursuant to subsection 2 of the section, the maximum punishment is fourteen years incarceration. As is evident from the wording of the section, these offences are closely aligned to treason and treasonable acts. Indeed, the offence of failing to inform on a person about to commit treason is essentially an offence of being an accessory or party to the treason, either before the fact or after. Originally, this section in the 1892 Criminal Code was worded to that effect. The change came in the 1915 amendments, most likely as a result of World War One, when the offence of assisting an “alien enemy” was added immediately after the offence of accessory section. In 1927, the two offences were combined under one section. Finally, in the 1953-54 amendments to the Code, the specific reference to accessory was deleted and the section was re-enacted as it stands today.

Needless to say, I have been unable to find any reported decisions on this section other than a reference to the duty to report under s. 50(1)(b). In the 1990 Dersch case, the BCCA considered the seizure of blood samples in a case of suspected impaired driving where the accused was unconscious when the samples were taken for medical purposes. The issue of confidentiality of medical information was considered with the acknowledgement that such confidentiality was subject to exceptional circumstances such as a statutory duty to report. Section 50(1)(b) was cited as an example of such an exceptional situation.

The mens rea requirements for this section is of interest. It could be argued that both offences under this section require a high level of mens rea. In s. 50(1)(a) the use of the word “wilfully” suggests the requirement for a high level of subjective liability, which does not include recklessness. However, the term “willfully,” does not necessarily denote a high level of subjective mens rea as per the 1979 Ontario Court of Appeal case of Buzzanga and Durocher. The contra-argument would rely on the context of this offence, including its connection to treason and the severe punishment attached to conviction, as support for a high level of mens rea. But, s. 50(1)(a) reverses the onus of proof onto the accused by requiring the defence to “establish” that the assistance rendered was not intended. This reverse onus would certainly be subject to a Charter argument under s. 7 and s. 11(d). The mens rea requirement for s. 50(1)(b) is easier to discern as it requires the accused to have knowledge of the expected treason, which clearly requires proof of a high level of subjective liability by the Crown.

Although this section has been historically underused, considering the rise in alleged acts of terrorism, there is a possibility the section could be used in the future. There could be an argument that members of certain terrorist groups are in fact “at war” with Canada and a further argument that these groups in some ways constitute a “state” for purposes of the section. In fact, some of these groups do identify as such. However, in light of new legislation, both within the Code and through other federal statutes, relating to this area, it is more likely the government will prefer to lay charges under this newer legislation, which provides a broader basis for conviction. Probably the best indication of the viability of this section is whether or not it remains in the Criminal Code, in its present form, after the much anticipated government review of the Criminal Code.

 

Riesberry – Does It Get Past The Post?

Fraud has been around for centuries. So has the concept of cheating at play. In R v Riesberry, the Supreme Court of Canada attempts to put 2 and 2 together, so to speak (albeit randomly!), to clarify the meaning of “game” under s. 209, which criminalizes “every one who, with intent to defraud any person, cheats while playing a game or in holding stakes for a game or in betting.” Game is defined under s.197 as a “game of chance or mixed chance and skill.” What was at issue in Riesberry was the favourite Ontario pastime of horse racing and Mr. Riesberry’s penchant for winning. In this case, winning by drugging two horses. Although the Court defined “game” as including a horse race, in my view the more interesting aspect of the decision is the Court’s comments on the fraud charges and what I will suggest is a failure to fully integrate criminal law principles.

Justice Cromwell, speaking for the unanimous court (although the case was not heard by the full panel of judges but of a smaller panel of 7), essentially relied upon previous SCC decisions on the actus reus requirements of fraud, specifically Olan (1978) and Theroux (1993) and the companion case Zlatic. The actus reus for fraud is comprised of two parts as per section 380, an act of “deceit, falsehood, and other fraudulent means” coupled with, according to Theroux and Zlatic, a deprivation “caused by the prohibited act,” which may result in an actual loss or a risk to the “pecuniary interest” of the victim. In the earlier decision Olan, the court expanded on the phrase “other fraudulent means” by defining it as any act “which can properly be stigmatized as dishonest.”

Before we move onto Justice Cromwell’s position, let’s unpack the significance and the impact of the Olan and Theroux/Zlatic decisions.

First, Olan, an Ontario case about a substantial fraud involving a convoluted fact scenario of companies within companies. However, as Justice Dickson (pre-Chief Justice days), on behalf of the full Court, astutely reminds the reader “One of the dangers in this case is the risk of being overwhelmed by factual minutiae. Superficially, the facts are complicated. Stripped of unessentials, it is clear what took place.” Of note is the manner in which this decision is structured, with a full recitation of the relevant law before the facts of the case are outlined. Clearly, according to Justice Dickson, the facts are not the issue as the lower court should have realized, this is an “easy” case of fraud. Hence the broad definition of “other fraudulent means,” which nicely concurs with Lord Diplock’s assessment in the House of Lords Scott decision, three years earlier. In Scott, Lord Diplock gave a generous definition of the phrase by suggesting “other fraudulent means” can involve “dishonesty of any kind.” Justice Dickson, approved of this passage and Justice Cartwright’s earlier 1963 decision in Cox and Paton to arrive at the now oft quoted meaning of the phrase as found in s. 380 as “not in the nature of a falsehood or a deceit” but acts that can “encompass all other means which can properly be stigmatized as dishonest.”

Although Justice Dickson also discussed the further actus reus requirements of deprivation, this aspect was thoroughly canvassed in the Theroux/Zlatic cases. Theroux is one of those great cases indicative of the unsettled Court of the early 1990s. Rendered in the 1993 when the Court grappled with the meaning and content of mens rea in light of the subjectivity principle and the objectivity “creep” from the driving cases of Hundal and the manslaughter decision in Creighton.  This was a time when the Court’s decisions were visceral and driven by ideology, when members of the Court aligned themselves both with other members of the Court and against other members of the Court. To prove my point just read the following SCC cases rendered that year: Cooper on the “slightly relaxed” intention found under s. 229(a)(ii) murder,  as previously mentioned Hundal and Creighton, and three further cases on the presence of objective criminal liability in Naglik, Gosset, and Finlay. Not only was mens rea on the Court’s mind but also an expansion of evidential and procedural rules as in KGB, Plant, Wiley, Grant, Levogiannis and Osolin as well as the meaning of s. 7 of the Charter as in Rodriguez and Morgentaler.

It is in this context that Theroux was decided with 3 decisions which concurred in the result:  from Justice Sopinka (with Lamer, CJ), Justice McLachlin’s majority decision (with LaForest, Gonthier, and Cory JJ.) and Justice L’Heureux-Dube’s own decision. The fragmented decision is connected to the companion Zlatic case where Justice Sopinka and the Chief Justice dissented as stated in the opening parargraphs of Theroux, because “there are several issues in my colleague's analysis of the law of fraud with which I have difficulty.” One of these “issues” involve the tension between objective and subjective mens rea and the Court’s inability to envision how the traditional criminal law world would look when that Pandora’s box containing an objective form of liability is opened. We are still feeling the effects of this conundrum today, which deserves another blog posting all together. In any event, Theroux is typically now quoted for Justice McLachlin’s (as she then was) clarification that mens rea signifies the guilty mind and does not encompass all of the mental element requirements of an offence as the actus reus too has a mental aspect requiring the prohibited act to be a voluntary act “of a willing mind at liberty to make a definite choice or decision” (See Taschereau J. in the 1962 King case). For our purposes, however, Justice McLachlin reiterated fraud’s actus reus as described in Olan with a reminder that Olan was a departure from precedent as it marked a broadening of fraud by removing the requirement for deceit and replacing it with a “general concept of dishonesty” to be objectively determined and by permitting deprivation to include a risk or “imperilling” of economic interest.

Viewing Riesberry in this context, we should not be surprised that the Court unanimously accepted this precedent and found the act of “cheating” to be an act worthy of criminal sanction. However, what should surprise us about the decision is how the Court treated the required causal connection between the dishonest act and the deprivation. Justice Cromwell easily made this crucial connection through the time-honoured “but for” test, wherein the trier asks “but for” the accused’s actions would this consequence have occurred or, as in this case, “it created the risk of betting on a horse that, but for Mr. Riesberry’s dishonest acts, might have won and led to a payout to the persons betting on that horse.” This “risk of prejudice to the economic interests of bettors” provided a direct causal link required to prove the actus reus of the fraud.

Although to Justice Cromwell this linkage was elementary, the decision on this issue is disquieting. Causality in criminal law has received much attention by the Supreme Court of Canada.  It has been a particularly difficult issue in cases where there may be multiple causes or, as in Mr. Riesberry’s case, there is a temporal issue. Causation is also a civil law concept, arising in tort cases. Like the tension between subjective liability, a traditional criminal law precept, and objective liability coming to criminal law from the regulatory or civil arena, the concept of “criminal” causality has been a long-standing subject in criminal cases.  

The question of factual causation or the “but for” test referred to and applied by Justice Cromwell has indeed been straight forward and easy to apply. But the issue of legal causation, the concept of culpability and where the criminal law should draw the line has been less easily determined. Legal causation sees the “but for” but wants to know to what degree is the accused the cause and is it sufficient to attract the full force of the criminal law. This was the issue in Harbottle, where the degree of causation required in a first-degree murder charge was considered, and interestingly enough was decided in 1993 when Theroux was considered. It was also the issue in Nette where second-degree murder was considered and the entire concept of criminal causation was considered. To attract criminal culpability not only must the “but for” test be fulfilled but the actions of the accused must also be a “significant contributing cause” of the consequence. Since Nette, this legal test has been applied such as in the recent case of Maybin involving a manslaughter. Not only did Justice Cromwell not enter into this legal analysis, he did not even mention its existence. Considering fraud is akin to theft in that it is a “true crime,” which attracts stigma upon conviction, the legal concept of causation should have been considered even on these facts.

Had it been considered, the final analysis may very well have been the same but the case, left as it is, seems unfinished. Without getting into it, another area of disconnect in this decision is with the concept of deprivation as a “risk” as opposed to an actuality. This position seems consistent with previous decisions of the court such as Mabior and Hutchinson as it related to fraud vitiating consent under s. 265(3). Again, no analytical connection is made here. This also seems decidedly “unmodern.”

As early as 1990 (see Starr v Houlden), the Supreme Court of Canada had begun to embrace the “holistic approach” to law, refusing to be pigeon-holed by the past (specifically see paragraph 16 of the 2011 Sarrazin case and approval of this concept as recommended by Moldaver, J.A., as a then dissenting voice in the Ontario Court of Appeal decision). This recognition and desire for integration has also seen traction in the broader societal context. Riesberry, by failing to integrate principles and make these holistic connections, leaves us to consider the pieces of the puzzle instead of the picture as a whole.

 

 

Episode 41 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 43 - Correction Of A Child

 

Section 43, correction of a child by force, is another section of the Code, which protects those people who use force in certain limited circumstances. Indeed, the heading for this section and the next section 45 is entitled Protection of Persons In Authority. Section 43, and for that matter s. 45, are not sections protecting peace officers but are designed to protect people who may use force as a result of a relationship he or she may have with the recipient of the force. In the case of s. 43, the relationship is parental or quasi-parental as between a child and a parent or a child and a schoolteacher.

Let’s read the section in full:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

I am sure many of you reading this or listening to this podcast might be a little surprised that this type of protection is in the Code. The idea of hitting a child, be it a parent or worse a teacher, seems out of step with the fundamental values of our society and a throw-back to when age-based relationships were construed as hierarchal and power driven. As we will explore in this podcast, the Supreme Court of Canada acknowledged these concerns but in the final analysis the Court found there is a place for such a section in the Code, albeit in limited circumstances. In this podcast, I intend to explore some of these issues, which might give us pause for thought in assessing whether this section is a relic of the past or not.

Section 43 was thoroughly canvassed in the 2004 Supreme Court of Canada case Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76. The opening statement of the majority decision, authored by Chief Justice McLachlin, speaks volumes on the essence of the defence:

The issue in this case is the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force in some circumstances without facing criminal sanction.

The phrase “minor corrective force” envisioned by the Chief Justice adds clarity to the Court’s characterization of the defence as permitting “reasonable physical correction.” Essentially, it is this formulation of the defence, equating “reasonable” with “minor” force, which saves the section and places the defence in a neat continuum of what is acceptable and was is not acceptable societal behaviour.

I will not go into the niceties of the s. 7 arguments in the case, although I highly recommend those listening to this podcast to read the full decision as the argument presented to the Court takes a fresh approach to the protections found under s. 7 through the perspective of the victims or recipients of the force, in this case children. It is highly illustrative of the unique and persuasive arguments, which are available under the Charter.

The case also highlights the emotive issues involved by viewing the constitutionality of the section through the lens of another legal phrase often conjured in cases involving children: the “best interests of a child.” In what manner this phrase applies in the criminal law context is an interesting discussion, which requires a full blog posting. In any event, as found by the majority, the concept may be a legal principle but at least in 2004, it was not a principle of fundamental justice as required for the application of s. 7.

Let’s turn to the essential requirements of s. 43, as interpreted by the Supreme Court of Canada. First, the section requires the force used to be for the purpose of correction/discipline. Such acts would be “sober, reasoned uses of force” that “restrain, control or express some symbolic disapproval” of the behavior. Although this element is understandable, the allowance for force to “express some symbolic disapproval” is a puzzling concept in the legal arena. Certainly the symbolic use of force is used in the broader context of military expression, such as retaliatory strikes. However, the symbolic nature of that force seems to be based on generating fear and domination over a populace. In the context of s. 43, it becomes difficult to envision force as a symbolic expression other than, as an example, an antiquated response to foul language – washing a child’s mouth out with soap or tugging on an ear to show disapproval. Whether or not this kind of symbolism can truly be viewed as “sober, reasoned uses of force” remains open to debate.

The second requirement, which takes the perspective of the recipient of the force, is the need for the child to benefit or learn from the forceful act. If a child is too young or developmentally challenged, use of force, even if for corrective purposes, is not appropriate and s.43 defence cannot be used.

Next, the Court must consider whether the force used is reasonable in the circumstances. The “reasonableness” of the force is delineated by reference to what is acceptable in society by looking at international standards and expert opinion. Again, corporeal punishment used on a child under 2 years of age is considered harmful, as may be such punishment on a teenager. The majority also considered force used to the head area as inappropriate. Additionally, using a belt or implement to apply force is unacceptable. In the end, reasonableness under the section is constrained by who is receiving the corrective punishment, the manner in which the punishment is being applied, and the target area of that force.

In the case of teachers, any type of corporeal punishment used - what comes to mind is the application of a ruler to the hand - is not reasonable force. Teachers, however, may need to remove a child or restrain one but any other force, even I would suggest “symbolic force,” is not acceptable.

In the end, the Chief Justice viewed the section as a necessity in the realities of family relationships when she stated at paragraph 62:

The reality is that without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute “time-out”.  The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

This above recognition of the limits of the criminal law, limits which we as a society desire and need in order to maintain our fundamental social constructs, really does define this section as it is presently applied. In fact, I represented a client who was charged with assault as a result of restraining a teen, who was acting violently and was under the accused’s care. It was this section, which provided the litmus test and ultimately resulted in his acquittal.

More controversial, however, is the use of the section where punishment is meted out on the basis of cultural or religious norms, which differ from “Canadian” norms. In those instances, what may be acceptable punishment in the accused’s social circle may not be acceptable in the broader Canadian view. In the dissenting decision of the Canadian Foundation for Children case, Justice Arbour raised this possible dichotomy in support of the position that the concept of “reasonableness” under the section is more of a moving target and less of an articulable standard. She commented in paragraph 185 that:

Corporal punishment is a controversial social issue.  Conceptions of what is “reasonable” in terms of the discipline of children, whether physical or otherwise, vary widely, and often engage cultural and religious beliefs as well as political and ethical ones.  Such conceptions are intertwined with how other controversial issues are understood, including the relationship between the state and the family and the relationship between the rights of the parent and the rights of the child.  Whether a person considers an instance of child corporal punishment “reasonable” may depend in large part on his or her own parenting style and experiences.  While it may work well in other contexts, in this one the term “reasonable force” has proven not to be a workable standard. 

Finally, I leave this podcast with a more esoteric or philosophical view. As touched on by the Chief Justice, the truth behind this section, and all of the sections, which justify the use of force, may not reflect the kind of society we truly want: we want a society free of violence and the threat of violence. However, the reality is that even our rule of law carries with it an aspect of violence. As Walter Benjamin opined in his “Critique of Violence,” not only is violence the means to preserving the Rule of Law, “Law-making is power-making, assumption of power, and to that extent an immediate manifestation of violence.”

This concept is further explored in Robert Cover’s electrifying article entitled “Violence and the Word,” which reminds us that whenever the justice system metes out punishment or even pronounces a judgment, a person is coerced to do something they do not want to do. In some instances the force is minimal, in others it involves a total loss of liberty. It is this use of force, which we try to contain, hoping its use will be based on reason and equity. Yet this “force” still remains part of what we would all consider a well-run society and fundamental to the justice system.

Section 43, albeit a seemingly simple defence is in reality a section, which causes one to re-think the meaning of force and its place in today’s society. It has been more than a decade since the Court has expounded on this section. As a result, it will be interesting to see how this section holds up to the ever-evolving societal conceptions of law’s function in our private relationships and law’s responsibility to protect vulnerable members of our society.

For more on Robert Cover, read my previous blog discussing his work here.

 

Thoughts On St-Cloud Or How Everything Old Is New Again

After reading the Supreme Court of Canada’s decision in St-Cloud, I was instantly transported back to the heady days of the early nineties: where multifarious decisions produced more questions than answers but left the reader with the comforting feeling that somehow the Charter was above the fray. In those mixed-bag decisions there was the satisfaction that the Charter did make a difference and was shaping the new-look Canadian society. However, this nostalgic wave of emotion was not a “remembrance of things past” but was a physical time travel to the days of Morales, wherein the Supreme Court found the secondary “public interest” ground for justifying detention under the then s. 515 of no force and effect as it violated s. 11(e) of the Charter.

Now, let’s be clear, I agree that the 1990’s version of the grounds justifying detention under the Code is very different than today’s read. However, Justice Wagner’s decision applies a broad brush to those differences resulting in a tertiary ground which looks, feels, and acts like the old version.

In Morales and the companion case Pearson, Chief Justice Lamer unpacked the meaning of “public interest” as a judicial tool to justify the denial of bail. This justification was important to articulate, as the granting of bail was the default position under the section. Similarly, “reasonable” bail was guaranteed under s. 11(e) of the Charter. The meaning of “public interest” was therefore an important indicator of whether or not the law was properly mirroring this Charter right. In order to give meaning to a right, all courts should be in agreement with that meaning or the right is no longer an equitable claim.  If “public interest” could not be crystallized and articulable then it would be of no assistance in grounding a denial of bail. This did not mean that there must be a precise definition but an articulable one. Throughout this discussion, Chief Justice Lamer reiterated the “golden thread” by which the court was guided in viewing the matter – the “golden thread” of the presumption of innocence.

Under this 1990’s microscope, the court was unable to find a consensus on the meaning of “public interest” resulting in a “vague and imprecise” basis for detention, which was contrary to fundamental principles of justice such as the principle of legality as delineated in the SCC case of Lohnes rendered a few months earlier. Upon a thorough sweep of authorities, Lamer C. J. found the term “public interest” was “open-ended” and failed to provide a structure for legal debate.  With such a deficient yardstick, the ground could not be saved under s. 1.

It seems pretty clear from this decision that “public interest” is an unusable phrase from the past, except for this telling line from the Morales decision:

“As currently defined by the courts, the term "public interest" is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.” (Emphasis added)

Now, flash-forward to the St-Cloud decision and Justice Wagner’s valiant attempts to define “public confidence” seems to make short shrift of the Morales decision. To be sure the 2015 Court is working with a differently worded section and the issue is “public confidence” in the administration of justice and not “public interest” but what is “public confidence” now can be “public interest” then.  Although Justice Wagner is very careful to couch the meaning in Charter correct terms and is mindful of the unique connection release from custody has to our fundamental concepts of the presumption of innocence and burden of proof, the fact remains that these core principles are now bound by the public interest, albeit tempered by the concept of Canada’s nom de plume, “reasonableness.”

This case raises many questions. Not just questions of applicability and not just questions of how this decision will look like in the realities of bail court but fundamental questions such as: is the law looking backward instead of forward by essentially reviving the public interest as a controlling feature of bail? And if so, how does the public interest reside within our fundamental principles, which tend to the individual as opposed to the collective, such as the presumption of innocence as the “golden thread” that appears throughout our notion of criminal law? These hard questions must be asked if we are to move into the future and beyond.

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.

 

Sections 25.1 to 25.4 – Law Enforcement Justification Provisions: Episode 32 of the Ideablawg Podcasts on the Criminal Code of Canada

In this episode we will discuss what is known as the law enforcement justification provisions, proclaimed in force on February 1, 2002, as found under a compendium of sections from 25.1 to 25.4. These sections acknowledge certain police investigatory practices will involve the commission of offences, particularly where officers operate in a covert or undercover capacity. The most well known investigatory technique subject to these sections would be the “Mr. Big” investigations, which have attracted Supreme Court of Canada notice through the recent cases of Hart and Mack. For a further discussion of the many issues arising in such investigations, I highly recommend Mr. Big: Exposing Undercover Investigations in Canada by Kouri Keenan and Joan Brockman, who are from the excellent criminology faculty at Simon Fraser University.

The sections themselves were created in response to the 1999 Supreme Court of Canada decision in Campbell, wherein the court found that police were not immune from criminal liability as a result of unlawful conduct even if it was executed in good faith and to further a criminal investigation. The Court thus called upon Parliament to legislate such protection, which it did under these sections.

Although these sections make provision for investigators to commit offences in the course of their investigatory duties, the sections also create a mechanism for parliamentary and civilian oversight of such exceptional investigatory techniques. Thus, s. 25.1 contemplates a “competent authority” such as the Federal Minister of Public Safety and Emergency Preparedness or, the applicable provincial equivalents such as in the case of Alberta, the Solicitor General and Minister of Justice, who has the authority to designate “public officers” to act in these investigatory capacities. In addition to this designation, there must be civilian oversight or a “public authority”, in accordance with 25.1(3.1) “composed of persons who are not peace officers that may review the public officer’s conduct.” Furthermore, the designating Minister, under s. 25.1(4) must designate such public officers upon the advice of a “senior official,” who is a member of a law enforcement agency and has been so designated to act as a senior official by the Minister. In some ways, this designation process is rather self-fulfilling or circular considering the actual ministerial official who is receiving the advice chooses or designates the advising official. Upon receiving the senior official’s advice, the Minister must make the public officer designation on the basis of “law enforcement generally” rather on the basis of a specific law enforcement activity or investigation. Therefore, such designation must be viewed in the broader context of law enforcement, according to 25.1(4), and not done on a case-by-case basis. As with many ministerial decisions, this is the only articulated criterion for the designation, which leaves such designation open to broad discretion.

The senior official or advisor to the Minister has broader powers permitting the temporary designation of a public officer without the competent authority, under s. 25.1(6), under exigent circumstances, wherein it is not feasible to have the competent authority or Minister perform the designation and where the public officer would be justified in the circumstances in acting contrary to the Criminal Code. The circumstances of such a designation are set out under 25.1(7) and the justification for such conduct as found under 25.1(8), being that the senior official believes on reasonable grounds that “the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.”  In such exigent circumstances the senior official must notify the Minister of this action “without delay.” This requirement, I would suggest, seems rather contradictory. The purpose of the notification would be to ensure that such actions are not taken without the knowledge of the Minister but in order to effect such awareness, notification would only be fulfilled if in fact the Minister receives the missive and reads it. If the Minister is available to review such a document, one wonders why the Minister is not in the position of making the actual decision, considering the availability of instantaneous electronic communication.

In any event, there are further restrictions on the public officer’s ability and authority to act outside of the Criminal Code. Under subsection (9), further restrictions pertain to instances where the public officer is involved in activity that would be likely to result in loss of or serious damage to property or where a person is acting under the direction of the public officer in accordance with subsection (10). In these specific circumstances, the public officer must not only comply with the circumstances of justification under subsection (8) but must also comply with the further justifications listed under subsection (9). Thus, the public officer must also be personally authorized in writing to act or if such written authorization is not feasible, the officer must believe on reasonable grounds that the acts are necessary to “preserve the life or safety of any person, prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or prevent the imminent loss or destruction of evidence of an indictable offence.” This broad authority and justification to commit criminal offences is tempered by the limitation to the section under subsection (11) that there is no justification for “the intentional or criminally negligent causing of death or bodily harm to another person; the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or conduct that would violate the sexual integrity of an individual.” Section 25.1 also reiterates that all other protections to a police officer in the Code are available and that despite the extraordinary powers under the section, officers must still comply with the rules of evidence.

When a public officer does in fact commit an offence or direct others to do so in accordance with s.25.1, there are further oversight requirements such as under s.25.2, the public officer must file a written report with the senior official as soon as feasible after the commission of the said acts. An annual report is compiled by the competent authority or Minister and made public regarding the previous yearly activities outlining the number of emergency designations made by senior officials’ and the number of written authorizations made by the senior officials under 25.1(9)(a), the number of offences committed by officers as a result, the nature of the conduct being investigated and the nature of the acts committed by the designated officers. However, such report must still preserve the confidentiality, must not compromise ongoing investigations, must not prejudice an ongoing legal proceeding and must generally be not contrary to the public interest. Such annual reports are available online.

For instance, the RCMP publishes such reports through the Public Safety website. Although the 2012 Report is available online, the 2013 Report has not as yet been published most likely as the report must be first tabled in the House of Commons and the Senate for approval. However, provincial reports are available such as the 2013 report from British Columbia. Alberta does not publish a stand-alone report but publishes the information as part of a larger report on the state of the Ministry as a whole. This means the information is not clearly accessible but is found under the heading in the report entitled “Annual Report Extracts and Other Statutory Reports.” The actual 2013 “report” consists of three lines indicating three instances of illegal conduct committed while investigating “homicide and missing persons” and resulted in “minor damage to a vehicle.”

In the previous 2012 Report there were five instances of illegal conduct wherein the officers created the “illusion” of a break in, committed property damage and participated in activities of a criminal organization. This description creates more questions than answers as it is not a crime to create an “illusion” of a crime and it is only those acts contrary to the Criminal Code, which must be reported. If in fact a crime was committed by this “illusion,” for example, if the conduct amounted to a public mischief, then the report should specify the exact crime as opposed to the circumstances in which it was done. Of course, the sections do not provide immunity for certain criminal acts, no matter in what circumstances they are committed, such as an obstruct justice. Therefore, the information needed to provide the appropriate oversight for this activity must be detailed in a transparent and accountable fashion. Similarly, the fact that the officers participated in activities of a criminal organization is unclear considering some of those activities could no doubt be specifically identified as commission of crimes. Compare this to the BC Report, which although brief, contains much more information, such as the number of times the emergency designations were used. Certainly, none of these reports have any information on how the oversight requirements of the provisions, as in the review by the “public authority” or civilian oversight committee, are fulfilled. Considering the Hart and Mack decisions and the Courts concern with the use of investigative techniques, which mimic criminal organizations, such reporting should be reconsidered by government authorities. Additionally, in light of the importance of this oversight function and the fact there is no prior judicial authorization required, the published information should be standardized by the Federal Government and subject to civilian oversight scrutiny.

As with electronic interceptions of private communications, under s. 25.4, within a year after committing the justified offence, the senior officer, who receives the public officer’s written report, must notify “in writing any person whose property was lost or seriously damaged as a result of the act or omission” unless such notification would compromise or hinder an investigation, compromise the identity of an officer or informant, endanger the life or safety of another, prejudice a legal proceeding or be contrary to the public interest. Of possible concern is the exception to notify for reasons of prejudicing a legal proceeding as such prejudice may be in the eye of the beholder. In other words, such non-disclosure may prejudice the accused’s trial, even though disclosure would prejudice the prosecutor’s case. It seems more appropriate, in matters that are before the court, for a judicial authority to balance the prejudicial effects in order to determine whether or not notice should be given. This would be more consistent with Charter rights of disclosure of the Crown’s case to the defence.

Finally, it should be noted that there are provisions, which require a legislative review of these sections within three years of the sections coming into force. The first report of such review was presented in 2006.  One of the concerns raised in the report was the lack of prior judicial authorization for some of the activity. There are other concerns raised but the Committee “lacked sufficient evidence to come to any firm conclusions” and the sections remained unchanged. Indeed the report was entitled “interim” report, although I was unable to locate a “final” one.

It is important to note the paucity of information on the civilian oversight aspect of these sections. There is no reporting of or information pertaining to the composition of the “public authority” contemplated by these sections and the findings of this oversight committee. There was an interesting paper presented at CACOLE conference, which is the Canadian Association for Civilian Oversight of Law Enforcement, in 2002 after these sections were proclaimed in force. The paper presents an excellent overview of the proposed regime and the rationale as well as discussion of similar regimes in other countries such as England and Australia. The impact on civilian oversight was minimal, meaning that there were few or no complaints arising out of the sections. However, the paper does propose some recommendations to the oversight bodies to help reinforce the import of the sections by establishing a code of conduct or policies relating to good faith of police officers and the conduct required by police officers who are authorized to use such extraordinary powers. Certainly, this kind of oversight is being done by individual boards and commissions but is not nationally mandated. Thus, another recommendation is for the Federal Government to integrate the oversight of these activities into the relevant civilian oversight of the participating law enforcement agencies. Certainly this would strengthen public confidence in the system and provide transparency in a rather obscure area of law enforcement. Of note, is the Australian regime, which uses legislation similar to our criminal code provisions, but has added protections involving stringent code of conduct for officers and the use of prior judicial authorization. Certainly the Australian experience involves a far more robust public auditing and monitoring system than here in Canada.  Of particular note is the Australian Annual Report on such activities, known as “controlled investigations,” which is far more detailed than the reporting seen in Canada.

It may very well be that these changes will not happen until and unless the Courts become involved. To date there have been some Charter applications to declare the sections unconstitutional. These applications have been dismissed at the trial level and such arguments have not been made at the appellate court level. The Honourable Mr. Justice Curtis of the British Columbia Supreme Court considered Charter arguments relating to these sections in the Lising case. In that decision, Justice Curtis found the sections were not contrary to s. 7 of the Charter as the sections were not constitutionally overbroad or vague. On the further s. 7 issue of whether or not the lack of prior judicial authorization renders the sections unconstitutional, Justice Curtis ruled that in the extraordinary circumstances of section 25.1, prior judicial authorization is not warranted and in fact impede the intention of the sections. As Justice Curtis stated “The ultimate goal of Parliament in enacting s. 25.1 is the protection of everyone’s right to “life, liberty and security of the person”. This line of reasoning may presage similar arguments, which may be made on the anticipated federal government anti-terrorism efforts that will give CSIS enhanced powers of investigation.

It will be useful to monitor the status of these provisions considering the enhanced national security concerns and the impact of the Hart and Mack cases on the “reverse sting” or “Mr. Big” operations. Yet again it will be the courts who will need to balance the rights of the individual to be free of state interference with the collective right to live in a secure and safe society.

 

 

The Assisted Suicide Debate: A Legal Primer

Sometime ago, I wrote three blogs on the assisted suicide debate in light of the Rodriguez case and the soon to be argued before the Supreme Court of Canada, Carter case. In light of the hearing scheduled for Wednesday of this week, I am gathering these prior postings below as a primer to the issue and including a fourth blog relating to the Criminal Code prohibition of consenting to one's own death:

Whose Life Is This Anyway? Part One of the Right To Die Debate in Canada

Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada

Assisted Suicide Appeal - the Carter case

Section 14 of the Criminal Code - Consenting To Death