University of Alberta Faculty of Law Blog

Common (Public) Nuisance and the Fear of Smallpox

via Health Law in British North America

“The fears of mankind, though they may be reasonable, will not create a nuisance” – Defence counsel, R v Vantandillo, (1815), 4 M & S 72, 105 ER 76 (KB).

In R v Vantandillo, a mother was convicted and sentenced to three months imprisonment for “unlawfully and injuriously” carrying his infant son, who was infected with smallpox, along a public highway. The case is one of many that fall under the “grab bag” common law offence of common or public nuisance. The case also provides some insights on the strict liability quality of public nuisance qua crime. Here’s how:

• A “judgment by default” was entered against the defendant. I am not familiar with the history of this procedure, but I doubt that it means the same thing as a default judgment in the context of civil proceedings. If I were to guess, I would say that a conviction was simply entered against the defendant upon notice of the indictment. Some statements in the case report support this theory. For example, it is reported that “the defendant having suffered judgment by default, appeared to receive the sentence of the Court,” which suggests that an actual trial was dispensed with. Also, at the sentencing hearing, Lord Chief Justice Ellenborough, responding to the defence counsel’s contention that it was entirely possible that the only reason her client presented her child on the street was to obtain medical advice, noted (in a somewhat circular fashion) that even though the “necessity” defence could be proved by evidence, such defence was precluded by the mere fact that the “indictment alleged that [the offence was committed]…unlawfully and injuriously.”
• The defence counsel argued that the mother’s actions were neither unlawful nor injurious to anyone. According to him, since the indictment did not state how the child caught the disease or that he was purposefully inoculated with smallpox by or at his mother’s request, it was perfectly reasonable to assume that the reason why she exposed the child in the streets was to obtain medical treatment (inoculating or procuring the inoculation of a person was also a common law offence, even if commonly relied on at that time as a preventative from smallpox). This act by itself (i.e. the actions of caring mother), he argued, could not be unlawful. On the question of injury, he argued that since the indictment did not show that the child carried some outward manifestation of smallpox (such as sores) as the time of exposure, it cannot be concluded with certainty that there was any injury presented by the situation. He noted that without such outward evidence (as in the case of leprosy, and by analogy to the writ of de leproso amovendo), it would be difficult to distinguish between infected persons who pose an injury to the public and those who do not.

The court rejected both arguments. It surely must not have helped the defendant’s case that the prosecution alleged that “the passage in which the defendant had exposed the child was a cul de sac, extremely narrow; that there was a small school kept there, and that two of the children had caught the disorder and died.”

R v J.A: The Tangent

Earlier today, the Supreme Court released its decision in R v J.A, the case involving an Ottawa man convicted for sexually assaulting his partner during a round of consensual erotic asphyxiation by tying her hands behind her back while she was unconscious and then inserting a dildo into her anus as she was regaining consciousness. The case provided the opportunity for the SCC to revisit its consent jurisprudence in the context of the Criminal Code's sexual assault provisions. The majority, led by Chief Justice McLachlin, restored the conviction for sexual assault (a conviction at the trial stage was set aside by the Ontario Court of Appeal), reasoning that "[a]ny sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is...not consensual within the meaning of the Criminal Code." In their dissent, the minority (Fish, LeBel and Binnie) noted that the issue in the case was not whether or not an unconscious person can consent to sexual activity, but rather, "whether a conscious person can freely and voluntarily consent in advance to agreed sexual activity that will occur while he or she is briefly and consensually rendered unconscious." No summary of the decision can do justice to the opposing judgments, so I recommend reading the full decision.

As one might expect from a case straddling that thin line between factual and legal realities, the case is "trending" among lawyers in the usual places on the social network. It has generated some good debate among my Facebook friends, and I just gave my wife an earful on the ins and outs  of consent law, mens rea, etc. Personally, I think the minority got it right, mainly due to the fact that their opinion relies on a non-paternalistic reading/interpretation of consent rules that I find very compelling. Given the facts of the case, the minority opinion is also the just and sensible one. I plan to unpack these observations in a case comment. For now, I'd like to highlight a couple of observations about the SCC decision. The first is a question based on comments on the case by some of my colleagues, and the second is a brief commentary on the writing styles of the two lead justices. I welcome your comments on both topics.

1. Given that no female justice joined the dissent, does gender play any role in deciding cases like this?
(I should note that a female justice led the majority in the Ontario Court of Appeal)

2. As far as judicial writing goes, Justice Fish's dissenting opinion gets top marks from me. His opinion is succinct but clear, flows logically, and is very well canvassed. I encourage anyone who teaches legal research and writing to consider using it as an example of how to construct and dismantle legal arguments. Here are some nuggets:

"We are nonetheless urged by the Crown to find that the complainant’s yes in fact means no in law. With respect for those who are of a different view, I would decline to do so."

"According to the Chief Justice, the question is “whether an unconscious person can qualify as consenting [to sexual activity]”. With respect, that is not the question at all: No one has suggested in this case that an unconscious person can validly consent to sexual activity."

"In this case, J.A. engaged with K.D. in sexual activity to which K.D. freely consented while conscious. The Chief Justice would nonetheless convict J.A. of sexual assault, a serious crime.  I oppose this result. In my respectful view, it is unwarranted as a matter of statutory interpretation, prior decisions of the Court, or considerations of policy.  And it is wrong on the facts of this case.
That is what divides us. The rest is commentary."

I was wrong when I said earlier that no summary can do justice to the full decision: the latter quote does just that.

Are writing skills an important component of the judicial function or a factor in judicial appointments? I do not know of any studies of judicial writing styles in Canada, but I sure would like to undertake one. The matter has received some attention in the U.S.

Obiter and do what I say, do what I do?

This is for the judge, lawyer, and law student portion of our readership. The rest of you can safely ignore this. It won't ameliorate the consequences of anyone's friggatriskaidekaphobia. It may, however, provide some of you with more than your preferred daily dose of sarcasm.

Some years ago, an Ontario trial judge (who later became an Ontario Court of Appeal judge) wrote:  "With respect to her first basis for distinguishing ... [a prior Ontario Court of Appeal decision] ... it may be true that, in a highly technical sense, the view of the Court of Appeal ... [on an issue of law] ...  may not have been essential for the ...  [prior decision] ....  but to act on that technical analysis would be to ignore reality."  (Woloszczuk v. Onyszczak (1976),  14 O.R. (2d) 732 at 739,  1976 CarswellOnt 274 at para. 15.) 

It might be bad for one's professional future, too, particularly if one is a trial judge hoping to move up the pecking order.

But what if the problem is Supreme Court of Canada statements of law that are (1) arguably obiter and (2) clearly inconsistent with prior Supreme Court of Canada decisions which aren't even arguably obiter? What if the trial judge's own Court of Appeal has continued to apply the older cases?

Whose hand does the trial judge then bite?

Rape by Deception

An Isreali judge has sentenced an Arab man to jail for pretending he was a Jew before having sex with a woman he met on the street. Read the full story here.

I am no criminal lawyer, and no expert in Isreali law, but I wonder how this will play out in a Canadian court. Some questions come to mind:

1. Will a Canadian court convict if it was established that the lie was determinative of the complainant's consent? (h/t to Howie for this question)

2. Putting legal doctrine aside, should deceptive statements trigger culpability for the crime of rape? To put this in stark terms - can one lie to get another to have sex with them?

3. Did the court conflate two different episodes of consent - consent to engage in a relationship with a Jewish man, and consent to the act of sex?

4. Is there something here that calls for a criminal law version of the remoteness doctrine in tort law? Is the consent based on the deceptive statement too remote to trigger culpability based on the act of sex, which she obviously consented to?

Homolka's Pardon

The media are reporting that Karla Homolka will soon be eligible for a pardon under existing legislation. Nobody has suggested that they have information that she intends to apply. I do not know whether it's a given that she would get a pardon if she did apply. Nonetheless,  a majority of the members of the House of Commons have agreed, apparently, to expedite passage of the portion of  part of Bill C-23 that deals with pardons and changes the existing federal law (The Criminal Records Act) with the intention, apparently, of making it more difficult for Homolka to qualify.The Globe and Mail report is here. 

I assume - I haven't read the new provisions and it's been years since I did anything more than glance at the current - that under the new legislation H has less than the proverbial snowball's chance of getting a pardon in the immediate future.

The politics of the play are obvious, as are the good intentions of the MPs. But, there's that proverb about what the road to hell is paved with.

The lawyer in me wonders whether the Tories, in their grandstanding, and the other  MPs, in their rush to judgment, have received advice from lawyer(s) competent to give that advice that the legislation is constitutional, under the Charter, to the extent that it purports to alter, to their detriment, the eligibility for pardon of persons convicted of Criminal Code crimes prior to the passage of the proposed legislation? Bear in mind that, had the Criminal Code changed to her detriment after Homolka committed her crimes, she'd have been tried under the law criminal law as it was. Is "pardon law" a part of the criminal law for that purpose? The fact that deals with a criminal record suggests there's an argument it is. If it is, then isn't Homolka entitled to pardon eligibility under the law as it was when she was convicted (or new law if it's better for her, but that's not the case.)

The heinous nature of what she did doesn't entitle the current gov't and the rest of the MPs who are onside with it to knee-jerk in a way that's unconstitutional. Her acts were heinous. But that doesn't entitle the state to act unconstitutionally. There is something called the "Rule of Law" that even the current gov't is bound by, even when they don't like it.

But, if the proposed legislation isn't constitutional on the basis that it's contrary to the Charter - say s. 7 - and can't be saved by s. 1, and there isn't a notwithstanding clause, does that mean Homolka would have a s. 224 action against the Crown for damages?

Or does the gov't intend to use the Charter's notwithstanding provision just in case?

I don't know the better (or even correct)  answers to any of this. It's not my bailiwick. Perhaps I've missed something that means the problem I've raised doesn't exist.

Perhaps one of the members of this blog (or another reader with the required expertise) is in a position to comment.

Candidly, nothing I've seen in the conduct of the current party in power, or its members antics while in the oppostion makes me confident that the gov't has adequately considered the legal issues. I'd like to be wrong. about that. I'd also like to win Friday's $50 million lottery. (Yes, I 've bought a ticket.) 

R. v. Morelli, 2010 SCC 8

Some excepts from the reasons.

From the majority reasons of Fish J (McLachlin C.J. and Binnie, Abella JJ concurring):

[1]  This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure.  And it relates, more particularly, to the search and seizure of personal computers.

[2]  It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer. 

[3]  First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.  There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.  The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4]  That is precisely the kind of search that was authorized in this case.  ...

The majority held that the search warrant was improperly obtained, the search was illegal, and the evidence obtained as a result of the search was to be excluded under s.24(2) of the Charter.

The Wrong Song - Judges Can't Do That

Judges, by virtue of their status as judges and role in the legal system, have to watch what they say, how they say it, and where they say it, far more than many others. For example, the nature of the position puts some constraints on the judge's ability to express views on political issues, and the the propriety - in the sense of desirability, not merely legality - of laws passed by the bodies having the constitutional power to pass such laws.

Once upon a long enough time ago - in people years -  John & Paul wrote and sang, together with George, and performed together with Ringo,  a song titled "You Can't Do That" which included the lyrics "because I told you before, you can't do that".

Kangaroo Justice

Okay, maybe kangaroo isn't the best term. But why is Khalid Sheikh Mohammed headed for trial in New York? Pat Buchanan weighs in.

Courts and Crime

The Supreme Court issued four decisions that deal with crime and the exclusion of evidence. I haven't had time to read through them all (R. v. Grant, R. v. Harrison, R. v. Shepherd, R. v. Suberu), but the decisions are all over the place. Sometime when I think of judges and their approaches to criminal law, I am reminded of this great Ed Koch story:

The question of whether judge's backgrounds impact OR ought to impact their decison-making is the crux of the current US Supreme Court nomination hearings. The sources are too numeorus to cite on the current hearings, but the Volokh crowd have been doing a good job of keeping up on the hearings.

Justice Breyer's Underwear

Did kids in Justice Breyer's school stick stuff in his underwear when he was a kid, or did he do the sticking? This hilarious line came out in a rather unfunny case before the US Supreme Court, Safford Unified School District v. April Redding on appeal from the Ninth Circuit, in which the issue of what the reasonable limits are for school searches was under discussion.

In this case, a 13 year old girl was strip-searched, because someone alleged she had some pills on her. No pills were ever found. The US Supreme Court has taken a dim view of school-children's rights against unlawful searches and seizures, and, in this, even the usually liberal Breyer joins in as he did in the Bong Hits case.

Then again what counts as liberal and conservative is not clear, as the case of Arizona v. Gant shows. Scalia and Thomas joined Stevens, Ginsburg, and Souter to limit the ability of police to conduct warrantless searches of a vehicle if they did not fear for their safety.

How Many Trials are Enough?

That is the question Kelly Ellard lawyer will ask the Supreme Court and hope that their answer is that three trials and two appeals is enough.  Reading through the details of the various appeals that were granted, at least as mentioned in the story since I haven't read the actual cases, one gets the sense that either there was major errors on the crown and judiciary's part OR the appellate benches bent over backwards each time to find an error.

Your thoughts? 

Should you talk to the cops?

The issue of whether you should ever speak to the police is very contentious in society. Apart from the moral civic duty question of whether one should agree to a polce interview request, the legal advisability question is another thing. Defense lawyers will always say "no", especially in the United States. Martha Stewart, notwithstanding, what about people who are completely innocent? In these two clips (h/t Adam Knisley), Professor James Duane presents a cogent case for why you should never speak to the cops, and a police officer (who is also a law student) speaks and agrees also:

I would love to hear from Canadian defense lawyers or police officers on whether any of this applies in Canada. (cross posted at the Western Standard)

Update: Over at the other blog, the comments suggested to me that I wasn't clear in the purpose of my post (no shock there). My purpose was to ask from a narrow legal perspective whether there the two linked videos had merit in Canada under its jurisprudence.

Garbage in Garbage Out

Do you have an expectation of privacy in your garbage? Apparently not after this latest Supreme Court ruling in R. v. Patrick. The case in my mind is straightforward, and I am surprised that it took this long to get this pronouncement given that the American courts have dealt with this years ago. Then again, perhaps it was settled in the lower courts all these years, and it took the dissent in our Court of Appeal to invoke the mandatory appeal.

My colleague Bruce Ziff gets an honorable mention, though why the Court cited his 1996 edition is beyond me. Perhaps, Carswell should send the Supreme Court library a new edition.

Update: In response to the comment on why I found the case straightforward: Given that the test of "expectation of privacy", the result seems obvious to me. That being said, I have never found the "expectation of privacy" test convincing. But given that this is the test that seems to have been adopted, especially in the U.S. (federal) courts, it seems obvious that once you throw your garbage out, you don't really care who goes through it. Those who are troubled by this decision should see the futility of the the "expectation of privacy" test, and shift to the idea that there are just some places the state should not intrude. That is why I disagree with Tessling.

Zealous Advocacy?

The New York Daily News is reporting that a lawyer for a notorious Guyanese gangster has been charged with conspiring to tamper with a witness. New York City lawyer Robert Simels (famous for representing, among others, Goodfellas' Henry Hill and the NY Jets' Mark Gastineau) was allegedly caught on a wiretap discussing the possibility of eliminating a witness through bribes or violence. As Simels' own lawyer put it, this was "nothing more than a lawful effort to vigorously defend his client."

Herring v. The United States

Judgment handed down today (download pdf of ruling: 07-513). This will be of interest to evidence and criminal law folks.

Here is a quote from the decision summarizing the court's opinion on the exclusionary rule:

“When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.” per Roberts CJ, lead opinion.

Modifying Objectivity: The SCC Does It Again

I haven't read this judgment in full, so forgive me if I am taking this out of context, but this paragraph from the summary of the court's reasons in R. v.   L.T.H., 2008 SCC 49 appears very interesting:

"The test for compliance with s. 146(2)(b) [of the Youth Criminal Justice Act] is objective.  It does not require the Crown to prove that a young person in fact understood the rights and options explained to them.  That said, compliance presupposes an individualized approach that takes into account the age and understanding of the particular young person being questioned.  An individualized, objective approach must take into account the level of sophistication of the young person and other personal characteristics relevant to their understanding.  Police officers, in determining the appropriate language to use in explaining a young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system."

What is an individualized objective approach? This smacks of that same logic behind the modified objective test for establishing causation in medical negligence cases. The funny thing is that a pure objective test could still allow some room for the "level of sophistication" of young persons of the same age as the young offender. Oh wait, that is the modified objective test!

How Reliable is DNA?

A few years ago we heard that fingerprints were also unreliable. Now, it seems that DNA evidence may not be as reliable as you may think. (Via How Appealing)

Guns III

Thanks to those posting comments here. For more detailed discussion of this, over at Volokh, everybody is getting on the action, so go there for a more American view of things.

On another note, my former student Peter Hertz sent me the following, which I thought worth posting.  The case involves the accused making a charter application that was unsuccessfully made that sought to strike out several sections of the Criminal Code and various sections of the Firearms Act, citing British rights, Blackstone, etc. CanLII has the decision on the application at:

http://www.canlii.org/en/on/onsc/doc/2007/2007canlii51171/2007canlii51171.html

Mr. Montague was convicted by a jury of some charges, and has expressed his desire to continue on with this.  If it interests you at all he's detailed things on a website all the way through at www.brucemontague.ca .  He's also put up the written submissions from the charter application in .pdf form at:

http://www.brucemontague.ca/pdf/2007-Oct-22_ConstitutionalBasisForFirearmsOwnership-DougChristie.pdf

I (MY), myself, know of the another case where this argument was made but failed:

http://www.canlii.org/en/sk/skqb/doc/2007/2007skqb455/2007skqb455.html

Dog Sniffs and the Supremes

By James Stribopoulos (originally posted at The Court )

On May 1st the Supreme Court of Canada released judgments in a pair of cases involving the use of drug sniffing dogs by police: R. v. Kang-Brown, 2008 SCC 18 and R. v. A.M., 2008 SCC 19. These decisions received considerable media attention, mostly for what they had to say about the constitutionality of police employing drug sniffing dogs. Lost in the media coverage, which was confused by the sheer length of the Court's opinions and the fact that the justices issued four separate sets of reasons in each case, was a larger controversy regarding the role of the Supreme Court in the Charter era when it comes to the creation of new police powers. Before exploring that disagreement, it is helpful to have a more definite sense of what the SCC held with respect to the use of drug sniffing dogs. Dogs "Search" When they Sniff for Narcotics Most importantly, all nine justices (essentially) agreed that when a police dog trained to sniff out narcotics focuses its olfactory powers on an individual's knapsack or luggage, the target's reasonable privacy expectations are encroached upon. In other words, this constitutes a "search" for s. 8 Charter purposes, a conclusion that triggers the "reasonableness" requirements of the guarantee. This conclusion may seem obvious to many readers. After all, if the dog isn't "searching" when it is "sniffing" at someone's bag what is the point of the sniff? Amazingly, however, the answer did not seem entirely clear cut as these two cases made their way before the SCC. This was because the United States Supreme Court long ago decided that dog sniffs do not constitute a "search" for Fourth Amendment purposes. In United States v. Place, 462 U.S. 696, 707 (1983) the USSC came to this conclusion because, as Justice O'Connor explained for the majority:

...the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here -- exposure of respondent's luggage, which was located in a public place, to a trained canine -- did not constitute a "search" within the meaning of the Fourth Amendment.

Given this, there was concern that our top court might come to the same conclusion.

Crackheads rejoice

Your sentence in the US is about to be reduced under new sentencing guidelines.  Crackalicious!