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Unlawful remand: the wrongful jailing of a sexual assault victim

It has recently come to light that a sexual assault complainant in Edmonton was jailed for five nights because the prosecutor and judge believed that she would not otherwise attend court and provide useful testimony. While there are many troubling aspects to the case, I focus here on just one: whether there was any legal basis for her detention. I conclude that there was not. Indeed, in my view there is not even a tenable argument that her detention was lawful.

Facts

While I will recount the most relevant facts, for full context I point readers to the outstanding reporting of CBC Edmonton’s Janice Johnston (here, here, and here); Professor Alice Woolley’s trenchant legal ethical analysis; and Michael Spratt’s and Emilie Taman’s excellent podcast.

The complainant, pseudonymously known as Angela Cardinal, was sleeping in the common area of an apartment building when the accused, Lance Blanchard, grabbed her, dragged her to his apartment, and violently sexually assaulted her. He was charged with aggravated sexual assault and other offences.

After Mr. Blanchard chose to have a preliminary inquiry, a subpoena was issued for Ms. Cardinal to attend.^[1] However, no attempt was made to serve it on her and she was unaware of it until two days before the start of the hearing when she encountered two police officers. They put her up in a hotel for two nights. On the second (the eve of the hearing), she left the hotel and went to her mother’s home, apparently because she wished to have guests in violation of hotel policy. She returned to the hotel later that night where police were waiting for her. They took her back to her mother’s place and picked her up the next morning for court.

There is no doubt that on this day (a Friday) it proved difficult to obtain useful testimony from her. As characterized by the trial judge, she was “clearly distraught,” “panicking,” and “somewhat belligerent.”^[2] The nature of her testimony is captured in the following excerpt from Professor Woolley’s submission:

Her testimony on that morning begins at page 357 of the transcript, and concludes at page 383, when she asks for a break. During that testimony Ms. Cardinal expressed her reluctance to testify (e.g., Transcript p. 360, ln 10 “I just want to go home”), her anger at the accused (e.g., Transcript p. 358, ln. 13 “He deserves to fry in the chair”) and also demonstrated her fatigue and incoherence. Her issues became particularly acute when testifying to the assault (Transcript p. 368) and when, at that point, the trial judge mistakenly referred to her as “Ms. Blanchard” – i.e., the name of the accused (See Transcript p. 369, ln. 19). She also expressed anger when defence counsel objected to questions (see e.g. Transcript p. 372, ln. 28, p. 373, ln. 33 and 40). Ms. Cardinal answered a range of substantive questions related to where she was born (Transcript pp. 358-359), the events prior to Blanchard’s assault (Transcript pp. 360-364), her interactions with Blanchard prior to the assault (pp. 365-367), how she got into his building (Transcript p. 367), the assault (Transcript pp. 367-368, 373-378, 379-381, 382-383), and the nature of Blanchard’s apartment (Transcript p. 379).

After the break, Ms. Innes advised the Court that “[Ms. Cardinal] is curled up on one of the benches outside, literally unwilling to interact” and asked for court to be adjourned until 2 pm so that the Crown could consider whether “to introduce her statement made to the police by way of KGB” (Transcript p. 384).

When the Court returned at 2 pm, Ms. Innes requested that the judge issue an order pursuant to s. 545(1)(b) of the Criminal Code ….

As detailed by Professor Woolley, the prosecutor based her request on the assertion that Ms. Cardinal was a “flight risk and … has presented in a condition unsuitable for testifying,” later adding that she was “not answering the questions that are put to her.” The prosecutor also suggested that Ms. Cardinal may have been “coming down off methamphetamine…”.

These statements were pure assertions. No evidence was adduced to support them, and the court did not direct Ms. Cardinal back to the stand to continue her testimony. Nor did the prosecutor provide any legal argument or case law supporting her claim that section 545(1)(b) authorized the detention. The court nevertheless granted the request and remanded Ms. Cardinal into custody for the weekend.

The events that transpired after Ms. Cardinal was returned to court on Monday were captured in the trial judge’s reasons as follows:

…She was brought into Court wearing shackles and handcuffs. The handcuffs were removed. However, she was not called to testify until late in the afternoon. She apologized for her belligerence on the previous Friday and partially explained her behaviour as resulting from the judge having mistakenly called her Ms. Blanchard, the name of the Accused. The Preliminary Inquiry judge then apologized for having made that mistake. She made a point of asking whether she had to go back to Remand as she had “a placement” and that she would not leave that placement if ordered not to. She did not want to go back into Remand and complained about being in shackles, the bad food at the Remand Centre and that “someone pooped in all . . . showers”. She emphasized that she was the “fricking victim here”. She then rightly pointed out that they should have started her testimony early in the morning instead of late in the afternoon to minimize her time in custody.

At the end of the Complainant’s testimony on June 8, 2015, the Court again remanded her. It was clear however that the Court had been misinformed. Contrary to the information before the Court, the Complainant had returned to the hotel on the evening of June 4. She was then taken to her mother’s home by the police where she was found the next morning. She was never missing and had never failed to appear. She told the Court the true facts concerning her whereabouts and asked that she simply be taken to her mother’s home. When told of concerns that she would not come back to Court, she responded that she promised to do so. Nevertheless, the Court again remanded the Complainant into custody. She remained in shackles, emphasized again that she was the victim and not surprisingly, said the following:

I’m the victim and look at me. I’m in shackles. This is fantastic. This is a great . . . system

When told by the Court that it was “making really good progress” she understandable responded: “Not great progress. Look at me, I’m in shackles”. The Complainant was then told that they would begin again the next day at 2:00 p.m. because the Accused “needs some emergency dental work done . . .”. Not surprisingly, the Complainant questioned why she must remain in custody and not testify until the afternoon while the Accused went for a dental appointment. Her concern proved justified given that at the conclusion of her testimony on the afternoon of June 9, 2015, she was once again remanded into custody. Again, she remained in shackles and was handcuffed on her way out.

Finally acceding to the Complainant’s request, the Court allowed her to continue her testimony on the morning of June 10, 2015 at 9:00 a.m. She testified the entire day, again in shackles, following which she was released from custody.

Application of s 545(1)(b)

Section 545(1)(b) states as follows:

545 (1) Where a person, being present at a preliminary inquiry and being required by the justice to give evidence …

(b)         having been sworn, refuses to answer the questions that are put to him,

without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may…commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.

Let’s first consider whether, on a plain reading, this provision could authorize the detention of a witness who is a flight risk. It states only that a person who is “present at a preliminary inquiry” may be detained if he “refuses to answer the questions that are put to him.” Nowhere does it purport to authorize detention when there are reasonable grounds to believe that the witness will not show up for court.

In this case, it is questionable whether the Crown had such grounds. As Justice Macklin relates, Ms. Cardinal did attend the Friday hearing and later promised to come to court and testify as required if released from remand.

But even if she did constitute a genuine flight risk, it wouldn’t matter. The provision does not authorize detention to prevent absconding. Of course, witnesses may be jailed for contempt if they refuse to comply with a properly-served subpoena or other court order, but they cannot be detained prospectively because of a concern that they may not come to court. As the trial judge noted (paraphrasing and implicitly approving of defence counsel’s submission), under a contrary interpretation “the Crown could obtain an Order for the detention of homeless people at any time simply because there is a concern that the Crown would not be able to locate them if the witness did not voluntarily attend.”^[3] It is accordingly clear that, at a minimum, Ms. Cardinal’s continued detention after Monday (when she was undoubtedly a cooperative witness^[4]) was unlawful.

The next question is whether her initial, weekend detention could have been justified on the basis that she “refused to answer” questions on Friday. Again, a plain reading suggests that the answer must be “no.” There is no evidence of any “refusal” to answer questions while she was on the stand. Nor was there any attempt to question her on the stand after the prosecutor asserted that she had become uncommunicative during the break.

While the prosecutor attested that a support person had unsuccessfully tried to induce greater cooperation,^[5] there was no evidence that Ms. Cardinal did refuse (or inevitably would have refused) to testify. Nothing in the record suggests that, given sufficient time and support, she would not have been willing to testify in some manner. Instead, it is evident that the prosecutor sought Ms. Cardinal’s detention to guarantee her presence at Monday’s hearing and maximize the chances that she would provide useful testimony. But the language of section 545(1)(b) in no way suggests that a witness may be remanded for these purposes.^[6] 

Nothing in the jurisprudence supports a contrary interpretation.^[7] Section 545(1)(b) has been in force, with only slight modification, since the Criminal Code was enacted in 1892. Yet I was unable to find even a single case where it was used to jail a witness in similar circumstances. In every instance where detention was ordered, the witness clearly and expressly told the court that he or she would not testify or answer a question, typically after the judge gave a warning regarding the consequences of refusal. None of this happened in Ms. Cardinal’s case.

The reasons for this absence of supporting authority should have been obvious. As the Quebec Court of Appeal explained in R v Lacroix,^[8] section 545(1)(b) creates a de facto offence akin to contempt of court or obstruction of justice.^[9] Consequently, as with these offences,^[10] witnesses cannot be remanded under section 545(1)(b) unless the Crown proves beyond a reasonable doubt that they willfully refused to accede to the court’s authority. Yet Ms. Cardinal was found to have breached the provision without indicating to the court, in any manner, that she would “refuse” to answer questions when she became capable of doing so. It defies basic norms of our legal order (not to mention sections 7 and 11(d) of the Charter) to deprive a witness of her liberty merely because she was having difficulty testifying at a particular point in time.  

In summary, it is simply not plausible to read section 545(1)(b) as permitting Ms. Cardinal’s detention. Such an interpretation is belied by the provision’s plain language, case law, and elementary tenets of criminal and constitutional law. While there must obviously be sanctions (including potential imprisonment) for refusing to testify, they should only be imposed on compellable witnesses who willfully defy judicial authority, and only in accordance with the ordinary rules of criminal procedure and evidence.

Conclusion

As a matter of policy, it is questionable whether sexual assault complainants should ever be jailed for failing to testify. The message that this would send to victims (“if you report a sexual assault to the authorities and are uncooperative thereafter, you could end up in jail”) is troubling (to put it mildly). But at the very least it should happen only when authorized by law. In this case, that could only have occurred had the Crown proved, subject to all the usual procedural and evidentiary safeguards, that Ms. Cardinal “refused” to testify. That did not happen on any reasonable interpretation of the record.

The prosecutor and judge presumably believed that jailing Ms. Cardinal was in the public interest -- that it would maximize the chances that she would give testimony that could help prove the case against an alleged sexual predator. But in doing so they took away her liberty, and they did so in a way that violated the most basic norms of due process and the rule of law.

To Ms. Cardinal, the value of this liberty was not abstract, ephemeral, or of little practical concern. As detailed in the record, she repeatedly pleaded for her freedom and explained, in cogent, colourful, and concrete terms, why she did not want to go to jail. As she put it herself, she “was the fricking victim here.”^[11] Unfortunately, this rather obvious fact was elided by an overzealous determination to obtain a conviction.

One lesson to be learned from this case, I hope, is that the risk of this kind of injustice can be mitigated not only by better adherence to ethical rules and more discerning exercises of professional discretion, but also by more faithful conformity to the rule of law. Even ivory tower lawyers know that “the law in action” is messier than “the law on the books”; but the latter is still important. Bad things happen when it is not taken seriously.

[1] Unless otherwise indicated, the facts in this paragraph are gleaned from the findings of Macklin J. in R v Blanchard, 2016 ABQB 706 at paras 228-35.

[2] Note that preliminary inquiries are conducted by provincial court judges. If the accused is committed to stand trial, the trial is conducted by a superior court judge. It was the trial judge, Justice Eric Macklin, who first brought attention to Ms. Cardinal’s treatment, though it did not attract widespread notice until the CBC’s reporting of it.

[3] See R v Blanchard, 2016 ABQB 652 at para 63.

[4] See R v Blanchard, 2016 ABQB 652 at para 27 (“Crown notes that when the Complainant first appeared on the witness stand after having been remanded, she presented in an alert state, apparently ready to listen to and answer questions.”).

[5] See Woolley submission at 6.

[6] Further, even if it were possible to construe Ms. Cardinal's behavior on the Friday as a “refusal” to answer questions, no consideration was given to whether she had a “reasonable excuse” for doing so, such as fear, anxiety, or drug addiction. As mentioned, witnesses may only be remanded under s. 545 if they refuse to answer questions “without offering a reasonable excuse.”

[7] Ironically, the only reported decision that I could find on point was the trial judge’s ruling on the admissibility of Ms. Cardinal’s preliminary inquiry testimony at trial under s. 715(1) of the Code. There, the defence argued that the testimony should be excluded because it may have been tainted by an implicit threat from the Crown that Ms. Cardinal would remain incarcerated until she gave favourable evidence. In rejecting that argument, Justice Macklin stated that while “[t]his Court does question the jurisdiction of the Provincial Court to grant an Order under s. 545(1)(b) in the circumstances described”, the order did not prejudice the accused: R v Blanchard, 2016 ABQB 652 at paras 63-64 [emphasis added].

[8] (1984), 34 CCC (3d) 163 (Que CA), rev’d on other grounds, [1987] 1 SCR 244.

[9] See also Morris Manning and Peter Sankoff, Manning, Mewett & Sankoff Criminal Law, 5th ed (2015) at 804 (describing s. 545 as one of several “statutory examples of contempt”).

[10] See e.g., R. v. Devost, 2010 ONCA 459 at paras 34-36 (contempt); R v Yazelle, 2012 SKCA 91 at para 52 (obstruction).

[11] R v Blanchard, 2016 ABQB 706 at para 231.

Zombie Law Apocalypse

Studying the British North America Act involves research into history: the foundations of the Dominion of Canada, the social and political factors that drove or opposed Confederation, and the laws that shaped our current jurisprudence and legislation. For this final week blogging as the Dominion 2017, each writer takes a turn looking to the future.

Pop culture has a mild obsession with fantastical zombie apocalypse theories like in the film World War Z and the television series The Walking Dead. Today we exploit this wordplay to write about Canada’s zombie laws.

Today’s post doesn’t predict a zombie apocalypse. Instead, it celebrates the impending doom of so-called zombie laws in the Criminal Code.[1]

Several “undead” laws remain “on the books”—in the Criminal Code—until Parliament amends or repeals them. Zombie laws are effectively null. If a court imposes a conviction under such laws, the defendant will likely succeed on appealing that conviction. Most zombie laws have been struck down by the courts for failing to comply with the Constitution.[2] Others are simply out of date with contemporary customs.[3]

Zombie laws usually don't do anything but sit on the books and make law students chuckle. So, what’s the harm of leaving them written in the code? It’s simply misleading; it can confuse the justice process. The government should clearly express what is an is not a law so that individuals are aware. Without the benefit of a legal education to sort through case law, many people may be unaware of laws that have been struck down.

Legal scholars across Canada renewed their demands on parliament to repeal zombie laws after the apocalyptic fallout when a judge used such a law. As we wrote in September, Court of Queen’s Bench Justice Denny Thomas convicted Travis Vader using a charge that has been struck down by the Supreme Court of Canada (SCC). Justice Thomas subsequently corrected that error and convicted Vader with manslaughter. This correction precluded Vader’s lawyers from appealing the conviction on the grounds that it fell under an unconstitutional provision.

A parliamentary democracy gives lawmakers parliamentary supremacy. Parliament can enact or repeal any law it wishes by passing a bill through the House of Commons. However, the Constitution supersedes all other legislation. In 1982 the constitutional supremacy clause was introduced.[4] It assures that all Canadian legislation is consistent with the constitutional provisions. When courts interpret legislation, they have the power to strike down a law and render it “of no force or effect” to the extent that it is inconsistent with the Constitution; including the Charter of Rights and Freedoms.[5]

The Charter also took effect in 1982 and, being part of the Constitution, holds the same status as supreme law. Several laws—among those listed below—that were enacted before 1982 have subsequently been rendered unconstitutional.

To bring the Criminal Code text in line with jurisprudence and contemporary social values, Parliament has announced that it will repeal (hopefully all) the zombie laws.[6] Eliminating uncertainty and vagueness in the Criminal Code will prevent potential future apocalyptic zombie justice system.

List of Undead Offenders:

• s. 71: Challenging someone or accepting a challenge to fight in a duel.[7]
• s. 159: Anal intercourse for people under 18 years; anal intercourse in groups.[8]
• s. 163(1, 7): Publishing crime comics.[9]
• s. 163(2)(d): Advertising drugs that “are a method for restoring sexual virility or curing venereal diseases.”[10]
• s. 179: Vagrancy.[11]
• s. 181: Spreading false news.[12]
• s. 230: Murder in commission of offences.[13]
• s. 250(1, 2): Water-skiing at night; water skiing without a spotter.[14]
• s. 287: Abortion.[15]
• s. 296: Publishing blasphemous libel.
• s. 365: Fraudulently pretending to practice witchcraft, sorcery, enchantment, or conjuration; or tell fortunes.[16]
• s. 427(1): Issuing trading stamps.[17]

 

[1] RSC 1985, c-46.

[2] Constitution Act, 1982, s 52, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution].

[3] Tu Thanh Ha, “These Seven Archaic ‘Zombie Laws’ still Exist in the Criminal Code,” The Globe and Mail (8 March 2017), online: <www.theglobeandmail.com/news/national/these-zombie-laws-in-the-criminal-code-could-still-have-you-arrested/article34246168/>.

[4] Constitution, supra note 2, s 52.

[5] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[5] Kathleen Harris, “Federal Government to Axe 'Zombie Laws' from Canada's Criminal Code,” CBC News (7 March 2017), online: <www.cbc.ca/news/politics/criminal-code-reform-zombie-laws-1.4013869>; Brent Rathgeber, “The Criminal Code is in Dire Need of Housecleaning: Trudeau Needs to Pick Up where Harper Failed to Act,” iPolitics (22 September 2016), online: iPolitics.com <www.ipolitics.ca/2016/09/22/the-criminal-code-is-in-dire-need-of-housecleaning/>.

[6] Harris, ibid.

[3] Ha, supra note 2.

[8] R v M(C), 23 OR (3d) 629, 82 OAC 68; R v Roth, 2002 ABQB 145, 306 AR 387.

[9] R v Butler, [1992] 1 SCR 452, 89 DLR (4th) 449.

[10] Ha, supra note 3.

[11] R v Heywood, [1994] 3 SCR 761, 120 DLR (4th) 348.

[12] R v Zundel, [1992] 2 SCR 731, 56 OAC 161.

[13] R v Vaillancourt, [1987] 2 SCR 636, 68 Nfld & PEIR 281; R v Martineau, [1990] 2 S.C.R. 633, 76 Alta LR (2d) 1.

[14] R v Gatt, 1992 CanLII 1105 (BC SC).

[15] R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.

[16] Ha, supra note 3.

[17] Ibid.

Trek Yo'self Before You Wreck Yo'self

On stardate 42523.7 (October 26th, 2364 for those of us in the 21st century), the crew of the USS Enterprise-D, under the command of Captain Jean-Luc Picard (Sir Patrick Stewart¹ at his finest), pulled into Starbase 173 for what was presumably a routine stop. For one member of Picard's crew, this visit resulted in a fight for his life and autonomy, but not against an enemy of Starfleet.  This battle was to be fought against an overzealous officer from within their own ranks.

Great science fiction prompts us to imagine a world different from our own, to explore questions of ethics, morality, and even law. Cue episode 9 of season 2 of Star Trek: The Next Generation, entitled “The Measure of a Man”.²

This particular episode focuses on Lieutenant Commander Data (brilliantly portrayed by Brent Spiner³), the first and only android to serve with Starfleet. Upon their arrival to Starbase 173, we are introduced to Commander Bruce Maddox, a brilliant but overconfident science officer who wishes to dismantle Data in an effort to study and eventually replicate him. Though Data lacks the capacity for emotion, he is able to form and express preferences. With this in mind, he refuses to submit to the procedure. Data  subsequently resigns his commission in Starfleet when it appears to be the only way to halt the procedure.

The episode then transforms into a legal drama. Captain Phillipa Louvois, a legal officer, convenes a hearing over the issue. Commander Maddox takes the position that Data is property of Starfleet and therefore cannot resign. Capt. Picard is assigned to represent Data, while the case is “prosecuted” by Commander William Riker, Picard's First Officer and Data's good friend.

Riker elicits evidence that Data is merely a machine.  He is also successful in having facts read into the record. Specifically, that Data was created by a cyberneticist, that his positronic brain has an impressive processing speed that is unmatched by any other known life form, that he has superhuman strength, and that he can have his hand removed and be turned off without permanent harm.

Picard begins his arguments by wisely conceding that Data is a machine, but follows up by claiming that human beings are also “machines” of a sort, and that this is largely irrelevant. The matter at hand is whether or not Data is sentient. While questioning Maddox, Picard asks him what would be required to meet a minimum threshold for sentience. Maddox responds, “Intelligence, self-awareness, consciousness.” He effectively assists the court in formulating a legal test by which to assess Data's claim that his is sentient, and therefore unable to be held to be property.

Maddox quickly concedes that Data is intelligent, and Picard makes a fairly easy case for self-awareness as well. On the point of consciousness, Picard does not necessarily argue that Data is conscious, but that “consciousness” is a criterion that is exceedingly difficult to test. He proposes that if Data can meet even the lowest standard of consciousness, he must be sentient.

In his closing, Picard states that someone will eventually succeed in replicating Data. It is the court’s decision in this matter that will determine how humanity and this new race of artificial life forms will interact. He effectively asks the court to look at policy considerations regarding “the boundaries of personal liberty and freedom”, finally asking, “Are you prepared to condemn him and all who come after him to servitude and slavery?”

Needless to say, Picard wins the day and Data wins his autonomy. Acting as judge, Louvois concludes that she doesn't really know what Data is, but that he should have the freedom to explore these things for himself.

Most television shows that focus on law make some legal errors, and this episode is no exception. Picard's calling of a “hostile witness”, his questioning of Data while Maddox is giving evidence, and the court referring to Riker as the “prosecution” despite Data not being accused of any crime are three examples that come to mind.  Much of this is excusable, as it allows for a complex legal issue to be resolved in 45 minutes of screen time.  

Having said that, “The Measure of a Man” was accurate in a couple of important aspects. After the parties agreed to a test for sentience, they were both correct in arguing for how it should be applied. As is often the case in law, policy considerations were a major deciding factor. Picard's argument that ruling Data as property would open the floodgates for future enslavement of similar beings was enough for the court to view sentience with the broadest application possible, basically erring on the side of autonomy over the potential for slavery.

Even for those who might not have an affinity for science fiction, “The Measure of a Man” is worth a watch for it's value as a legal drama.

 

1 online: Twitter <twitter.com/SirPatStew>.
2 “The Measure of a Man”, Star Trek: The Next Generation (Hollywood, Cal: Paramount Domestic Television, 1989).
3 online: Twitter <twitter.com/BrentSpiner>.

To Kill a Mockingbird: When Public Opinion Hurts the Justice Process

 

“Prejudice, a dirty word, and faith, a clean one, have something in common: they both begin where reason ends.”[1]

 

Today’s post explores a fundamental principle of Canada’s criminal justice system: every person on trial must be presumed innocent until proven guilty beyond a reasonable doubt. This determination must be “logically connected to the evidence” and not based on “sympathy or prejudice.”[2] For this reason, the defendant in a criminal trial is afforded additional rights to protect her innocence—unless and until the Crown prosecutor convinces a judge or jury beyond a reasonable doubt that enough evidence justifies a guilty verdict.

This is contrasted with the civil justice system. In civil court both parties’ rights are considered equally and the result is weighed on a balance of probabilities. In the criminal system the scales of justice are adjusted to reflect the state’s relative power to impose criminal sanction and the individual’s risk of loss of liberty and the stigma associated with a criminal conviction. The bottom line is that our society values the individual’s freedom so highly that it is better to let a guilty person free than to incarcerate an innocent person.

In Harper Lee’s book To Kill a Mockingbird, lawyer Atticus Finch defends the wrongfully accused Tom Robinson.[3] Mr. Robinson’s guilt is predetermined by the townsfolk and Mr. Finch faces an uphill battle to persuade the jury of his innocence. Before trial, Mr. Robinson’s reputation is already muddied.

In high profile criminal cases, the court of public opinion can injure the defendant’s reputation before guilt is decided. Recently in Alberta, Travis Vader was found guilty of manslaughter.[4] The judge found that the evidence did not support a first-degree murder conviction but it did meet the lower threshold of a manslaughter conviction. In Ontario, Jian Ghomeshi was found not guilty of sexual assault.[5] The evidence against the accused was not reliable enough to support a conviction.

Even before their days in court, both accused were unofficially tried in the court of public opinion and, like wildfire, guilty verdicts spread across social media. When someone is tried for a crime and found not guilty, ideally her life should return to normal, having been acquitted of a crime. This is usually true. Although our courts are almost always open to the public, most trials come and go without much public attention.

However, when a highly profiled case is before the courts, the accused is tried by thousands of opinions—most of which are not framed in an understanding of criminal law. Trial-by-social-media multiplies the impact on the reputation of the person facing trial. Publicizing the accused’s name and face changes her life forever. An accused person who is acquitted will never be truly innocent in the public’s eye when there is a highly publicized case, and a convicted accused in such cases carries the social burden heavier than does a non-publicized accused.

The lesson from To Kill a Mockingbird is in Atticus Finch’s influence on his children and, therefore, on the reader. Logic and equality is better than prejudice and bias. Even those accused of the worst crimes deserve “to get a square deal [in the] courtroom.”[6]

 

[1] Harper Lee, Go Set a Watchman (US: HarperCollins, 2015).

[2] R v Lifchus, [1997] 3 SCR 320, 150 DLR (4th) 733, at para 36.

[3] Harper Lee, To Kill a Mockingbird (Philadelphia: Lippincott, 1960) [Mockingbird].

[4] R v Vader, 2016 ABQB 625, 2016 CarswellAlta 2163.

[5] R v Ghomeshi, 2016 ONCJ 155, 2016 CarswellOnt 4246.

[6] Mockingbird, supra note 3.

You Can’t Handle The Truth!

As law students, many of us have that one legal television show or movie that inspired us to become a future lawyer. For the criminal law enthusiasts, maybe it was an episode of Law and Order that stood out. You would witness the New York City Police chase suspected criminals through dramatic and sometimes horrific investigations, then watch them hand over their work to Manhattan District Attorneys to duke it out in court.

For the future corporate lawyers, maybe it was Harvey Specter’s impeccable looks, stylish office, and fantastic style that makes the corporate lifestyle so attractive. I know I have personally watched my fair share of Suits. For others, maybe it was Elle Woods and her quirky route to becoming a Harvard Law graduate, all while mastering the “bend and snap,” that convinced you this degree was something you should and could pursue.

There is a plethora of legal comedies, dramas, and cinematic portrayals, one that has always stood out to me is A Few Good Men. I can still remember the first time I watched a young Tom Cruise losing his cool in court, trying to force Jack Nicholson to admit that he in fact ordered the “Code Red” that killed a Marine Private. Watching the heated exchange followed by Nicholson’s famous line “you can’t handle the truth,” was so exciting and intense all at the same time. Watching this, I knew that I wanted a career filled with that type of intensity and adrenaline rush.

A Few Good Men may have been the movie that inspired me to become a lawyer, but my career will be strikingly different than that of the young Tom Cruise’s character. In the film, Cruise plays Lieutenant Daniel Kaffee, a United States Navy lawyer tasked with defending two US Marines accused of murdering their fellow Private. In the film, Kaffee’s clients maintain they were just following orders when they violently disciplined the deceased. The entire investigation is run through military law practices, and ends in military court.

In Canada, the military have their own court system separate and unique from the regular criminal justice system. So what would military court be like for Daniel Kaffee here in Canada?

Similar to the United States, Canada has a parallel and separate military court system. Military justice is administered through the Code of Service Discipline, which is found in Part III of the National Defence Act.¹ The Code allows the military to enforce disciplinary standards on members of the Canadian Armed Forces (CAF) to maintain cohesion within military units.² The Supreme Court of Canada recognizes the need for the parallel military system to enforce disciplinary standards that are higher than what is expected of civilians.³

Similar to the procedure in A Few Good Men, Canada has a tribunal system for military justice. The military system acknowledges that CAF members, who are subject to military discipline under the Code, must be afforded fair, just, and transparent justice.⁴ To ensure fairness, military tribunals have two tiers. Summary trials deal with minor offences related to military discipline and unit effectiveness.⁵ These are dealt with quickly so the member can immediately return to duty.⁶

For more serious offences, courts martial are administered. Courts martial are similar to civil and criminal courts but they have an independent military judge overseeing the formal process.⁷ Canada has two forms of court martial, General and Standing. A General Court Martial is similar to a criminal jury trial. This process includes a military judge and five randomly selected CAF members.⁸ The judge acts as the trier of law, deciding the formal sentence, and the CAF members are the triers of fact determining a verdict.⁹ This is the type of formal process depicted in A Few Good Men. In contrast, a Standing Court Martial is similar to a judge-alone criminal trial where the military judge wears both hats.¹⁰

The military court system is imperative to the CAF’s function. The specialized system allows the military to maintain discipline and integrity needed to carry out the dangerous operations for which they are responsible. Although their formal court processes are similar to the criminal court system, it is necessary that people trained in military operations decide punishment. Civilians cannot accurately judge the discipline and enforcement needed to carry out certain orders and operations.

 

 

 

¹ National Defence Act, RSC 1985, c N-5, Part III, ss 66-159.

² Canada, National Defence and the Canadian Armed Forces, Canada’s Military Justice System, (Ottawa: National Defence Headquarters, 2014), online:

<www.forces.gc.ca/en/news/article.page?doc=canada-s-military-justice-system/hnea75sh>.

³ Ibid.

⁴ Ibid.

⁵ Ibid.

⁶ Ibid.

⁷ Ibid.

⁸ Ibid.

⁹ Canada, National Defence and the Canadian Armed Forces, Canada’s Court Martial System, (Ottawa: National Defence Headquarters, 2016), online: <www.forces.gc.ca/en/about-reports-pubs-military-law/court-martial-system.page>.

¹⁰ Ibid.

Discussing Sex Assault Laws with Rt. Hon. Kim Campbell

In the last year, there were several noteworthy sexual assault cases that gained significant media attention. Last week we met with Ms. Kim Campbell, who revised the sexual assault laws in 1993 when she was Minister of Justice.

 

Editors' Note: subsequent to filming, Justice Robin Camp has resigned from his position as a federal judge.

Are Police Street Checks Racially Motivated?

We continue access to justice week by discussing race and crime. One of the most controversial topics in the Canadian criminal justice system is whether the system is biased against racial minorities. Studies in Canada show that members of racial minorities view the criminal justice system as biased. Moreover, they view the system more negatively than Caucasian individuals.¹ The findings suggest that many minority groups believe that their ability to access justice is lacking, especially with respect to policing and community safety.²

 

One area where issues of racial profiling and legal injustice arise is with respect to street checks. Street checks, also known as carding, allow police with the power to randomly stop citizens and ask them to provide documentation.³  These individuals are not suspected of a crime necessarily, nor are they formally detained at the time.⁴ Police use this technique to keep communities safe from crime, or gather information about crime in the area. Problematically, minority groups are often the main targets of these street checks.

 

Alberta’s carding practices have recently caught the attention of several politicians, lawyers, and minority groups. These parties suggest that Alberta’s carding practices are unconstitutional and specifically target minority racial groups.⁵ The City of Edmonton alone has received numerous complaints about police street check procedures. The Edmonton Somali community believe police are targeting their communities strictly with racial motivation.⁶ People within the Somalian community suggest they are continuously being asked for identification and questioned on their activities; but rarely see the same happen for Caucasian individuals in similar areas.

 

Police checks must target a constitutionally protected right to be unconstitutional. Minority groups would likely challenge street checks using rights enumerated in the Canadian Charter of Rights and Freedoms. Under s. 15 of the Charter people cannot be discriminated against based on race.⁷ If carding is found to systematically target certain racial groups or discriminate based on race then the practice may be found unconstitutional. However, if it targets individuals of all races equally the practice will align with section 15. Critics believe that the practice does not target all races equally, but disproportionately targets minorities.

 

In response to carding criticisms, other cities in Canada have revised their street check procedures. The Toronto Police Services Board recently changed their carding practices so that officers cannot collect identification from a minority individual, unless the officers believe they have a connection to a specific person of interest.⁸ This prohibits officers from asking minority individuals identifying information unless a clear purpose is disclosed. Alberta could implement similar guidelines to help minority individuals feel that they are not being targeted without cause. The ultimate goal of these laws should be to make minorities feel safe and foster trust in police powers to help bridge their perceived lack of access to justice.

 

 

 

¹ Scot Wortley, “Hidden Intersections: Research on Race, Crime, and Criminal Justice in Canada” (2003) 35:3 Canadian Ethnic Studies Journal.

² Ibid.

³ Andrea Huncar, “Alberta Justice developing street-check guidelines for police”, CBC News (21 November 2016) [Huncar, “Alberta Justice”].

⁴ Ibid.

⁵ Andrea Huncar, “Police carding an ongoing irritant in Edmonton’s Somali community” CBC News (21 October 2016) [Huncar, “Police”].

⁶ Andrea Huncar, “Critics demand proof non-whites aren’t targeted in Edmonton police stops”, CBC News (28 October 2016) [Huncar, “Critics”].

⁷ Canadian Charter of Rights and Freedoms, s 15, Part 1 of the Constitution Act, 1892, being Schedule B to the Canada Act 1982 (UK), 1982 c 11.

⁸ Ibid.

Interview with Provincial Court's Judge Judith Shriar

Today we expand on our Access-to-Justice themed week, with a discussion on Alberta’s court system. Today’s post emphasizes the role that the courts play in helping litigants navigate the legal process once they’ve been introduced to the system. When courts give better access to self-represented litigants, more people can afford to pursue a claim or defend a claim or charge before a judge.

We recently had the opportunity to interview the Honourable Judge Judith Shriar of the Provincial Court of Alberta. She sits in Calgary, as well as in regional areas near the city, on criminal and some civil matters.

Through her time on the bench, Judge Shriar has heard a variety of charges, litigants, and issues, though she noted that she hears a large number of drinking and driving related charges. Judge Shriar observed that men appear in her courtroom more often than women and she sees more younger defendants than older. She made special note that these demographics do not change drastically from urban to rural, or even reserve centres.

In our justice system, there is currently cause for concern for self-represented litigants to represent themselves in court. Judge Shriar noted that courts have implemented programs and resources to help litigants navigate the murky waters of the legal system. The Provincial Court has “done a great job of making tools available online for litigants to access,” Shriar said.  

She further recognized that these resources have allowed self-represented litigants to become better equipped to handle their cases in court.

“I do think that people often do a good job on their own. Especially when people are unrepresented you see that people have really thought through their claim… they’re organized.”

However, there are always those who “slip through the cracks.” Sometimes a self-represented litigant faces an uphill battle during a dispute against a litigant with an experienced lawyer. When asked whether the judiciary has a responsibility to ensure that litigants are on equal playing fields, Judge Shriar confirmed that, though her jurisdiction to intervene is limited, she does what is appropriate within her position as an impartial judge to make litigants aware of the resources available to them, and even to step in when necessary to prevent gross injustices.

Another common area of concern is an increasing strain on limited court resources. Judge Shriar agrees that with respect to both manpower and infrastructure, the scarcity of court resources is an issue. In light of this problem Judge Shriar explained how Calgary’s Provincial Court has implemented programming to combat and mitigate the effects of diminishing resources.

She called Calgary’s Provincial Court a “leader across the province and the country,” when dealing with diminishing resources. For example, to deal with small overburdened rural courtrooms, regional dispositions are sometimes moved to Calgary. Setting aside a day for this purpose has helped to save time and effectively utilize the resources currently in place.

Another example is the Provincial Court's use of technology. For example, the court’s use of CCTV has reduced the need to transport parties and witnesses to courts. This eases the burden on support staff like sheriffs, clerks, and drivers.

When asked about the future of the courts and litigants’ ability to access and navigate them, Judge Shriar is optimistic. Since she was called to the bench, she has noticed many changes that increase both the efficiency of the court system and assist the courts in reaching appropriate verdicts. Specifically, technology and alternative dispute mechanisms have alleviated some of the pressures on the court system, while providing litigants with appropriate tools in which to solve their dispute.

However, more can be done.

We asked Judge Shriar what next steps the courts might take to continue to solve some of the issues individuals face when accessing the justice system. She said that, “the delay issue is critical. There were 15 charges dropped in Edmonton by a crown prosecutor to address these delay issues.”

“The courts do have a role to play in the process of helping to address root causes,” she said, and accordingly, we are likely to see an increase in “therapeutic courts, matrimonial courts, drug courts, and experimental programs.”

These measures will continue to funnel litigants out of the courtrooms while still providing them with the appropriate oversight. Solving disputes before trial, through programs such as mediation or judicial dispute resolution, saves both litigants and the courts time and money.

The Canadian justice system faces obstacles and challenges to provide fair and affordable access to its resources. It is clear at this point that Calgary’s Provincial Court has taken significant steps forward, leading Canada’s courts toward a future with a more accessible and balanced system of litigation and dispute resolution.

This Should Never Be Necessary and Should Not Have Been Needed: Once Is Too Many

yet it did happen, in my experience, regularly. To lawyers on either side of a case.

Shrugging it off with a "trial judges are human and make mistakes" isn't a good answer.

Equivalent conduct on a football (soccer) pitch would get you at least a yellow card, maybe even a red card.

The hockey equivalent is probably a 10 minute if not a game misconduct for unsportsmanlike behaviour.

Most experienced enough litigators have had trials where one of the grounds of appeal they wanted to make was that the trial judge was biased and the bias affected the result or at least there's a reasonable basis for concluding that the bias may have affected the result.

That's a difficult argument to win except in egregious cases. If one is lucky, there are also significant enough errors of fact and law that will allow the appellate court to to intervene without having to deal with the actual or apparent bias issue at all.

The case below is an apparent example. I have set out excerpts.

 

Then and Now: Judicial Review

To continue this week’s theme of throwbacks, today’s post highlights a lecture on the evolution of judicial review through Canada’s 150 years. The Friends of the University of Alberta presented the Honourable Justice Russell Brown at the 2017 H. M. Tory Lecture this week. Justice Brown was an award-winning professor at the Faculty of Law until his meteoric rise to the bench starting in 2013.[1] After approximately a year and change at each of the Courts of Queen’s Bench and Appeal of Alberta, he now sits as a puisne justice at the Supreme Court of Canada.

Justice Brown discussed the importance of judicial review in light of the Constitution Act, 1867 (formerly, the BNA Act) and the Constitution Act, 1982, which includes the Charter of Rights and Freedoms.[2]

Canada’s separation of powers includes the executive branch (Prime Minister and Cabinet or Premier and Cabinet, as well as unelected government employees), the legislative branch (federal Members of Parliament or provincial Members of Legislative Assemblies), and the politically independent judicial branch. Judicial review occurs when a court convenes to consider the lawfulness of executive powers or legislation. Often, the primary legislation that delegates power to administrative bodies, such as the Human Rights Tribunal or the Workers’ Compensation Board, will allow a party to appeal decisions of that body to a court.[3]

Before the 1982 patriation of the Constitution, the BNA Act gave Parliament the sovereignty to enact any law it desired because the Constitution was enacted to be “similar in principle to that of the United Kingdom.”[4] Technically, Parliament still enjoys this right. However, in 1982 the new Constitution was given “Primacy” or supremacy over all other laws enacted by legislative or executive power.[5] This means that Canada’s courts can review legislation to ensure that it does not conflict with Canada’s body of constitutional law (including the Charter).

Between 1867 and 1981, courts reviewed legislation primarily to ensure that the Canadian federal system was maintained: that federal Parliament and provincial legislatures enacted laws according to their powers under sections 91 and 92 of the BNA Act, respectively.

From 1982 onward, the judiciary has taken on a more involved role. The introduction of the Charter as part of the supreme law of Canada requires that courts ensure there is a proper and lawful limit to the legislative infringement on the rights and freedoms of individuals.

But rights and freedoms are not absolute; they are subject to reasonable limits as are demonstrably justified in a free and democratic society.[6] Therefore, courts determine not only whether a law infringes on Charter rights, but whether it can be justifiably upheld.

Sometimes judges are accused of judicial activism; of overstepping their role as mere interpreters of the law. As Justice Brown put it, however, judges are more than just interpreters. They are legal referees in this law-versus-Charter-value game. Although legislators tend to enact laws that reflect the will of their electorate, sometimes Canada needs unelected constitutional law specialists to put the interests of, say, minority interests before that of written laws. For Justice Brown, this is true law and it is has evolved beyond interpreting merely questions of jurisdiction.

 

[1] Dean Paul Paton, Faculty of Law, University of Alberta, in his introduction of Brown J, HM Tory Lecture (2017).

[2] 30 & 31 Victoria, c 3 (UK) [Constitution Act, 1867]; being Schedule B to the Canada Act 1982, 1982 c 11 (UK) [Constitution Act, 1982].

[3] Alberta Human Rights Act, RSA 2000, c A-25.5, s 37(1); Workers’ Compensation Act, RSA c W-15, s 13.4(1).  

[4] J Noel Lyon, “The Central Fallacy of Canadian Constitutional Law,” 22 McGill Law Journal 40, online: <www.lawjournal.mcgill.ca/userfiles/other/5264739-02.pdf> at 1; Constitution Act, 1867, supra note 2, Preamble, at para 1.

2000, c W-2.15, s 13.4(1).

[5] Constitution Act, 1982, supra note 2, s 52.

[6] Constitution Act, 1982, ibid, s 1.

Breaking a New Year's Resolution: An Alternative Facts Version

*updated 8 Feb 2017

Or, that didn't last very long, did it?

One of my New Year's resolutions was to avoid commenting on any social media platform, even my own blog, about any silliness from any Canadian court below the Supreme Court on any subject having even the remotest connection to causation or contribution issues in any area of Canadian law. I'm about to break that resolution here and I've just broken it elsewhere for the same reason.

Alice in Wonderland: It’s Not Just Fiction

This Friday and Saturday, Law Show, a not-for-profit variety show at the University of Alberta Faculty of Law will be performing “Alice in Wonderlaw”. Though many of us are familiar with the story of Alice in Wonderland, the name has a unique connotation when discussed in the context of the Canadian law. In the literal sense, Alice in Wonderland is a tale in the nonsense literary genre.¹The story follows a young girl who falls down a rabbit hole, meeting interesting and strange characters on her journey to return home. Legally, courts in many countries have associated the title with laws which are illogical. The term has become associated with laws and policies which are unrealistic, imaginary or impossible to implement.

In Canada, Alice in Wonderland (AIW) comes into play when grappling with many aspects of our legal system. In the context of aboriginal law, AIW qualities are rampant in both specific and comprehensive aboriginal land claim litigation.² In dealing with comprehensive claims, these qualities are seen from the Canadian and Quebec governments’ failures to honor the James Bay and Northern Quebec Settlement Agreement (JBNQA).³ In Namagoose v Robinson⁴, a court case that dealt with governmental non-compliance with the JBNQA, the Crown argued that the treaty was not statute nor was it ratified, so the government was not required to comply with its directives. In its decision, the court described the Crown’s argument as “ludicrous and incomprehensible”⁵, and therefore AIW-like.

Specific claims, unlike comprehensive aboriginal land claims, are based on a specific claim of non-compliance with a treaty provision;⁶ comprehensive claims are based on claims before British sovereignty. Specific claims are dealt with under the Specific Claims Tribunal Act⁷, for which the claims process has been deemed “Wonderlandish”.⁸ All claims under $150 million go through the tribunal, but the monetary worth of the claim has not yet been determined when that decision is made. How can a case be determined to claim less than $150 million, when the claim itself doesn't quantify an amount of money? Secondly, both the claim money, and administrative costs are paid out of the same grant. Therefore, it’s possible that the grant money has been spent on administration of the tribunal, leaving a dry pot for prevailing parties. In these respects, the government has channeled their inner Alice and gone down the rabbit hole with their policies and arguments, leaving all those involved in the dark.

AIW themes even take root in basic legal issues. Many legal scholars and professionals have criticized standard form terms on products and questioned whether they could really be contracts:

“Almost no one reads the terms… and for good reason: the product or service is necessary; the standard form will not be changed, since any attempt at negotiation would be futile; other suppliers are likely to insist on similar terms. As Radin says, there is an “Alice in Wonderland” quality in supposing that these forms are contracts.”⁹

In another another area, Alice is discussed in reference to photographic evidence in criminal trials. It is AIW-like, says D.S. Gardner, that x-ray evidence is admitted easily when it is impossible to ensure its accuracy.¹⁰ In contrast, photographic evidence is subject to a higher level of scrutiny even though each photo taken is independently verifiable.

All this is to say that that Canadian law is not perfect. There are many policies that are fantastical, arguments that do not make sense, and laws that are outdated and unrealistic. Alice appears in many areas of the law, and just like the Lewis Caroll tale, it is unlikely that she will go away anytime soon.

^{*Edited on February 1st.} 

¹Randy J Maniloff, “Alice in Wonderland Provides Proof That the Legal System Makes No Sense”, LexisNexis Legal Newsroom (22 April 2014) online: <www.lexisnexis.com/legalnewsroom/insurance/b/insurance-coverage/archive/2014/04/22/alice-in-wonderland-provides-proof-that-the-legal-system-makes-no-sense.aspx?Redirected=true>.

²Michael Posluns, “Aboriginal Land Claims: The Alice in Wonderland Dimension of the Canadian Judicial System”, SLAW (27 October 2011), online:  <http://www.slaw.ca/2011/10/27/aboriginal-land-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system/>.

³An Act Approving the Agreement Concerning James Bay and Northern Quebec, CQLR c C-67.

⁴Namagoose v Robinson, FCTD, 1991 FCJ No 904, action No T-451-91.

⁵Supra, note 2.

⁶Michael Posluns, “Specific Claims: The Alice in Wonderland Dimension of the Canadian Judicial System, Part 2”, SLAW, (25 January 2012), online: <http://www.slaw.ca/2012/01/25/specific-claims-the-alice-in-wonderland-dimension-of-the-canadian-judicial-system-part-2/>.

⁷Specific Claims Tribunal Act, SC 2008, c 22.

⁸Supra, note 6.

⁹Anthony Dugan, Jacob S. Ziegel & Jassmin Girgis, “Review Essay: The Problem of Standard Form Contracts: A Retreat to Formalism” (2013) 53:3 CBLJ 475 (WestlawNext Canada).

¹⁰Kent W. Roach et al, “Photographic Evidence: Its Probative Value at Trial and the Judicial Discretion to Exclude it From Evidence” (1973-1974) 16:2 CLQ 149 (WestlawNext Canada).

William Henry Pope: Father of Confederation & A Great Beard Too

William Henry Pope was born May 29, 1825 in Bedeque, Prince Edward Island (PEI), and later died on October 7, 1879.¹ A man of many talents and great intelligence, Pope was a politician, journalist, lawyer, judge, and land agent throughout his life.² The man had more successful careers than most people can hope for in five lifetimes. That person in law school that is involved in every club, seems to be at every event and is also probably a Dean’s Lister; this was William Henry Pope.

Pope received his post-secondary education in England where his father had originally emigrated from in 1819.³ After receiving his law degree, Pope returned to his native land of Canada to article under Edward Palmer back in PEI.⁴ After being called to the bar in 1847, Pope began a successful land agent practice.⁵ His practice became notorious after a few questionable business decisions took place. Pope’s father-in-law falsely convinced a client that the Liberal government at the time would not be interested in purchasing the client’s land.⁶ This caused the client to sell the property to Pope and his business partners for a mere $14,000, who then flipped the property to the Liberal government for nearly double the price.⁷ The deal was dubious, almost on the verge of fraud, but it cemented Pope as a legendary businessman. And we wonder why lawyers often get bad reputations in popular culture?

Fast forward into the 1850s, Pope moved away from his land agent practice, and began a political career. Pope was one of the few Prince Edward Island supporters of Confederation, which led to a deep feud with fellow PEI politician and former legal mentor Edward Palmer.⁸ Both men attended the Charlottetown and Quebec Conferences, with Palmer adamantly against Confederation and Pope in favour.⁹ As a result, the Conservative Party in PEI underwent deep-rooted conflict with regards to a united Canada. The popular vote favoured Palmer becoming Premier of the province, with William Henry Pope (and fellow ally Colonel Gray) needing to accept the harsh reality that Confederation was not popular amongst Islanders.¹⁰

Throughout the 1860s, Pope’s political career began to dwindle. It was rather unexciting until he was appointed to the bench in 1873. Pope was appointed by John A. MacDonald’s government to Prince County Court that year.¹¹ As a judge, Pope focussed extensively on pushing for Prince Edward Island’s inclusion in a united Canada.¹² Pope aggressively advocated this position even when it was still unpopular to do so. His passion for Confederation was evident throughout his judicial career, and likely impacted many of his decisions. In this role, Pope’s legal record was outstanding, with only two decisions out of thousands ever being appealed.¹³

With his death, Pope leaves behind an impressive legacy. Pope’s admirable career as a judge seems to make up for questionable land agent tactics nearly 30 years prior. Further, he will always be remembered as one of the few Islanders willing to stand up for Confederation, and help push the country into a united state.

 

 

¹ Ian R Robertson, “William Henry Pope” (16 January 2008), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/william-henry-pope/> [Robertson, “William”].

² Ibid.

³ Robertson, “Pope, William Henry”, online: (2003) 10 Dictionary of Canadian Biography <www.biographi.ca/en/bio/pope_william_henry_10E.html> [Robertson, “Pope”].

⁴ Ibid.

⁵ Robertson, “William” supra note 1.

⁶ Ibid.

⁷ Ibid.

⁸ Robertson, “Pope” supra note 3.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

What to Expect from The Dominion - Winter Term 2017

Are you planning to celebrate the 150th anniversary of Canada’s Confederation? Will July 1st, 2017, be a regular Canada Day celebration for you? Or do you even celebrate Canada Day at all?

Our first week back blogging introduces the new semester and reminds readers why this project is important to us, the writers, as law students. Each week follows a different theme; Mondays’ posts introduce each one.

A year ago the Law and Social Media team wrote collectively as Ms. Suffragette to celebrate the 100th anniversary of women’s voting rights in Alberta. One week was dedicated to the Famous Five women who challenged the meaning of the word “person”. In the spirit of celebrating influential Canadian politicians, next week’s theme is Founding Fathers of Confederation.

Ever the egalitarians, later in the term we will biograph Women of Confederation. We recognize individuals who made history by working hard for what they believed in. Like suffragists who advocated and agitated for political rights, the Founding Fathers and Mothers of Confederation wanted to change the governing structure of early “Canada”.

Some of our posts, like yesterday’s, review the Centre for Constitutional Studies speaking events. The CCS regularly hosts acclaimed legal experts who make constitutional law both informative and fun.

As we wrote last semester, Confederation and the preceding decades did not establish a foundation of equality and independence for indigenous peoples living in British North America. Therefore, as we recognize Canada’s sesquicentenary, we are mindful that it can be problematic to celebrate laws that created a legacy of Indigenous oppression. Reconciliation and healing must be part of our collective future and we will explore this in light of celebrations of the birth of modern Canada as we know it. In the words of Chief Dr. Robert Joseph, “Our future, and the well-being of all our children rests with the kind of relationship we build today.”

Also last semester, we introduced the constitutional division of powers between the federal and provincial governments (sections 91 and 92 of the Constitution Act, 1867). These distinctions between duties and powers delegated to the respective levels of government pervade our legal system and case law on jurisdiction. Therefore, we will expand on it further using interesting topics like polygamy, firearms, and even a shout-out to the annual student-run Law Show in February.

The federal Department of Canadian Heritage is promoting nationwide celebration projects. For example, one of the official signature projects focuses on engaging Canadians—coast to coast to coast—in reconciliation. The University of Alberta will host some projects as well; click here to check them out.

Most Canadian cities host events sporadically throughout the year. If you’re in Edmonton (as we are) make sure you check out Ice on Whyte (we will be!). It’s coming up soon to take advantage of the cooler temperatures and features ice carving and other family-friendly activities. Although Ice on Whyte is in its 14th year, this year it also boasts activities to celebrate Canada 150.

Over the next 12 weeks, we’ll keep you posted on more fun and interesting events that help understand the reasons for the BNA Act and why its successor, the 1982 Constitution, is so fundamental to living in Canada. So stay tuned!

Purposive Dancing With The Stars - Part 7

     Now I'd like to turn to another issue: that of judicial hubris. You did, after all, raise this in penultimate paragraph of your critique, although you called it "professional hubris".

Between Two Plants: SCC Edition

Dear Madam or Sir,

Thank you for tuning in to the season finale of "The Dominion".  We respectfully submit this interview with The Honourable Mr. Justice Russell S. Brown of the Supreme Court of Canada.  The inner workings and procedures of the Court were somewhat of a mystery to us, so we consider ourselves very fortunate to have had the opportunity to speak to a currently serving member of that body.  We thank Justice Brown for his support of both the Faculty of Law at the University of Alberta and for the Law and Social Media project.

 

 

See You in 2017,

The Dominion

Nobody is laughing: Satire cannot shelter misogyny

Dear Sir or Madam, 

Yesterday, we posted about Federal Court Justice Robin Camp and his 2014 comments during a sexual assault trial. Justice Camp repeatedly called the sexual assault complainant “the accused” and asked the complainant why she didn’t keep her knees together.¹ There are also three other Alberta judges currently under scrutiny for applying discredited sexist myths and stereotypes in their sexual assault rulings.²   

It’s easy to assume that overt sexism only exists amongst the old guard of judges and lawyers. It does not. The attitudes that grow into judicial misconduct begin in law school and they exist now.

The University of Alberta law students’ newspaper, the Canons of Construction, recently published an article entitled, “Desperate Drunk Girl Finds Self at Hal-LAW-ween”. The article depicts a fictional female law student who enjoys drinking and socializing with her peers and future colleagues. Law students, does this sound familiar?

The article opens, “[w]e all know that one girl who’s been single just a little bit too long,” establishing an ongoing emphasis on this woman finding her self worth through male attention. The article goes on to say how this woman lives at the bar, “all in the slim hope that she finds the one. Because everyone knows that love develops when you’re 10 tequila shots deep and that closing down the bar to swoop in on the dregs of society at the end of the night is the best way to fill that big empty void in your damaged, broken, and very single heart.”

This intelligent woman pursuing higher education is then slut-shamed. “After fearlessly hitting on pretty much all of the 1Ls, some who were clearly attached to partners, word, like herpes, spread at the party.” A woman displaying initiative by pursuing multiple single men? How dare she! Pull out your bonnet and crinolines³ people, we have an abomination on our hands!

The internal dialogue that accompanies the “epiphany of her life” is just as profound as one would expect of a highly educated woman: “What is love anyway? I think I’m getting fat and I might be developing signs of jaundice. Maybe I should learn to teach yoga. Do I have any KD left at home?”. She finally realizes that this law degree business is making her fat, thus diminishing her self worth to men. Her only solution is drop out and refocus on her honing her body rather than honing her mind.

The moral of the story for this tale’s “heroine” is in the article’s concluding paragraph: “The very next day, she quit drinking, put on a chastity belt, dropped out of law school and enrolled at a yoga academy. She finally learned that she don’t need no man to make her happy, and that praising the virtues of fair-trade, organic and environmentally sustainable armpit wax to yuppie moms in her trainee yoga instructor classes is way better than catching gonorrhea for the sixth time.”

In essence, a female law student is desperate if she doesn’t have a boyfriend, yet if she does garner that oh-so-important male attention, she’s shameful and requires a chastity belt. Her epiphany is not that she is an intelligent woman who can pursue a legal career while engaging in an active social life. The moral of her tale is that she only learns of her self worth when she abandons her career and relegates herself to a more feminine arena.

But it’s just a joke, and humour is subjective! The article is supposed to be satire! Humour does not excuse misogyny and shaming your peers.

Good satire exposes a truth through ridicule and irony, but what was the truth being exposed in this article? That women who pursue men are promiscuous? That professional women would be better staying at home, rather than socializing with their peers? Perhaps that women don’t belong in the legal profession in general, given that the “heroine” of this story found self worth only when she quit law school.

Yes, this is fiction. But it speaks to every woman in this program on some level. Every woman who has expressed romantic interest at a bar, every woman who has consumed alcohol in excess, every woman who regularly attends school social events. The solution for these women? According to this article, drop out of school. You aren’t worth it.

The problem is not whether the female in the article is fictional. The problem is that this attitude creates an unsafe environment for all women in this program. Female students should not be afraid to engage in the same behaviour as men for fear that their behaviour will be publicly ridiculed.

Your resident nasty women and men,

The Dominion 

 

[1]Jason Markusoff, Charlie Gillis, Michael Friscolanti “The Robin Camp case: Who judges judges”, Maclean’s. (14 September 2016), online: <www.macleans.ca/news/robin-camp-case-who-judges-the-judges/>.

[2] Dan McGarvey and Natasha Frakes “4 Alberta judges under scrutiny for sex assault rulings”, CBC News. (16 September 2016), online: <http://www.cbc.ca/news/canada/calgary/alberta-judges-sex-assault-trials-myths-1.3765959>.

[3] R v Ewanchuk, [1999] 1 SCR 330, 131 CCC (3d) 481.

Can Judges be Dismissed from the Bench?: The Judiciary’s Strong Security of Tenure

Judicial independence is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law.

- Mackin v. New Brunswick (2002 SCC 13)

Dear Sir or Madam,

A few months ago, Federal Court Justice Robin Camp appeared before the Canadian Judicial Council (CJC) in an inquiry to determine whether his comments in a 2014 sexual assault trial warrants his dismissal from the bench. Justice Camp presided over the trial during his tenure as a Judge in Alberta’s Provincial Court. The conduct in question included Justice Camp repeatedly calling the sexual assault complainant “the accused” and asking the complainant why she didn’t keep her knees together.[1]

These comments are abhorrent and inappropriate in any context, let alone when they are made by a Judge during a sexual assault trial. Justice Camp himself stated that his remarks were “unforgivable” and that “Canadians deserve better of their Judges”.[2] In many other employment contexts, similarly degrading comments would likely result in dismissal. However, Justice Camp still awaits the CJC’s decision.

You may be wondering why Justice Camp did not face immediate removal, even amid considerable public outcry, and why it so difficult to remove judges from the bench. Canada’s high standard for what constitutes judicial misconduct amounting to dismissal exists to protect the justice system’s independence from the government. Judicial independence is a cornerstone of Canada’s governing structure and it maintains the division of powers that is so essential to a functioning democracy. Security of tenure is one of three essential components of judicial independence, alongside financial security and administrative independence.[3] Put simply, if the elected government could easily remove judges from the bench, judges may start to consider the popularity of their decisions rather than purely examining the law.

The Supreme Court of Canada has characterized judicial independence as an unwritten constitutional principle, but there are at least four other sources for the principle in the BNA Act.[4] First, the division of powers in sections 91 and 92 necessitates the existence of an independent umpire for jurisdictional disputes.[5]  Second, the Charter gave courts a larger role in defending civil liberties against government intrusion; independence from the government is absolutely required to fulfill this requirement.[6] Third, the BNA Act’s preamble states that Canada is to have a Constitution “similar in Principle to that of the United Kingdom”, where judicial independence is also fundamental.[7] Fourth, the “judicature provisions”, sections 96-100 of the BNA Act, enshrine judicial independence. Sections 99 and 100 specifically safeguard tenure and payment, to limit the executive from successfully exerting pressure on decision makers.[8]

The BNA Act repeatedly reinforces judicial independence, so despite public outcry and frustration when judges engage in misconduct, it is so important to remember why we maintain such a high standard for removal. Also, this is not to say that judges can’t be removed. The CJC is responsible for federally appointed judges and there have been eleven public inquiries since the process was established almost fifty years ago. Only two judges have been recommended for removal, though both chose to resign before the recommendations went to Parliament for a decision.[9] Whether or not Justice Camp’s misconduct is egregious enough to overcome the high standards of judicial tenure remains to be seen.

For more information about Justice Camp, click here and here. For other examples of judges currently under scrutiny for decisions made on sexual assault cases, click here.  

Your humble and obedient servants,

The Dominion

[1] Jason Markusoff, Charlie Gillis, Michael Friscolanti “The Robin Camp case: Who judges judges”, Maclean’s. (14 September 2016), online: <www.macleans.ca/news/robin-camp-case-who-judges-the-judges/>.

[2] Ibid.

[3] “The Judiciary” (09 September 2016), Canada’s Court System (Government of Canada website), online: <http://www.justice.gc.ca/eng/csj-sjc/ccs-ajc/05.html>

[4] Justice Ian Binnie on behalf of the Supreme Court of Canada, “Judicial Independence in Canada” (Paper delivered at the World Conference on Constitutional Justice, Rio de Janiero, 16-18 January 2011) online: <http://www.venice.coe.int/WCCJ/Rio/Papers/CAN_Binnie_E.pdf>.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Portland: Hart Publishing, 2015) at 122.

[9] Robson Fletcher “Justice Robin Camp should be removed for sex assault trial mistakes, inquiry hears in closing arguments”, CBC News. (12 September 2016), online: <http://www.cbc.ca/news/canada/calgary/justice-robin-camp-inquiry-monday-closing-arguments-1.3758344>.

Supreme Court of Canada Appointments

Dear Sir or Madam,

Yesterday we  outlined the structure of Canada’s court system. Today we move on to Canada’s highest judicial authority, the Supreme Court of Canada (SCC).

Sections 4-6 of the federal Supreme Court Act specify the composition of the SCC. The Governor in Council (the governor general, on advice from the Prime Minister’s Cabinet) appoints an individual who has been a judge of a provincial superior court—the Court of Queen’s Bench of Alberta or Supreme Court of British Columbia for example—or who has been a lawyer for at least ten years standing at the bar of any province.[1] Three of the SCC judges must be from Quebec, which  is likely to ensure that the SCC bench is sufficiently experienced with Quebec’s civil law system. It is also customary to include judges from across Canada’s geographical regions: three from Ontario, one from British Columbia, one from the Prairie provinces, and one from the Maritimes.

In August this year, Prime Minister (PM) Justin Trudeau announced a new nomination process for selecting SCC judges in an attempt to ensure that the process is “transparent, inclusive, and accountable.”[2] Before the new selection process, the PM appointed SCC judges through a simpler but arguably less transparent process. Before August 2016, the Prime Minister’s Office could nominate any superior court judge or lawyer in accordance with the SCA and the Constitution Acts, 1867-1982.[3] Customarily, this included conferring with provincial Attorneys General and with the Chief Justice of the SCC. Usually, this process resulted in a bench comprised of Justices with similar political and social values to the sitting government’s views. The nominees will probably continue to be politically aligned with sitting governments, but PM Trudeau’s intention is to demonstrate to the public that the nominees are selected for more than their political views.

The new Independent Advisory Board for Supreme Court of Canada Judicial Appointments, chaired by Rt. Hon. Kim Campbell, convened to “provide non-binding, merit-based recommendations” to the PM.[4] By August 24, the Board had received 31 applications. It provided a short-list of 5 candidates to the PM, who nominated Hon. Malcolm Rowe. The Minister of Justice and Attorney General of Canada, Hon. Jody Wilson-Raybould, explained that the PM chose Rowe J. from the short-list “because of his legal and judicial acumen, public service background, ability to work in French, and ‘depth of understanding’ of Canada’s ‘diversity.’”[5] It also helped that Rowe J. fills retiring Justice Thomas Cromwell’s Atlantic region seat. As a result of this more transparent process, the public can review Justice Rowe’s application questionnaire here.

On October 25, 24 parliamentarians convened in Ottawa in a new question-and-answer session to determine Justice Rowe’s proficiency in French, his attention to diversity in Canada, and his commitment to access to justice. Inquirers included the leaders of the NDP, Green Party, and Bloc Quebecois, senators (including Hon. Murray Sinclair, first Manitoba Indigenous judge and former chair of the Indian Residential Schools Truth and Reconciliation Commission), and other members of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs. You can view the question-and-answer session here.

Section 41 of the Constitution provides the standard procedure to amend the “composition of the Supreme Court of Canada”.[6] It is the same as amending the office of the Queen or the Governor General and Lieutenants General of the provinces. In 2014, former PM Harper nominated Justice Marc Nadon from the Federal Court of Appeal, the Governor General appointed him, and he was sworn in according to the SCA.

Unfortunately, despite Nadon J.’s experience, expertise, and suitability to sit as puisne justice of the SCC, he was ineligible to be appointed.[7] The SCC decided with a 6-1 majority in Reference re Supreme Court Act, ss. 5 and 6 that the correct interpretation of ss. 5 and 6 of the SCA excludes current judges of the Federal Court of Appeal from sitting on the SCC.[8]

The Supreme Court Act does not state that a Military Court judge, a Tax Court judge, Federal Court judge, or a Federal Court of Appeal judge can be appointed to the SCC. Other sections in the act do refer to judges of the Tax Court, Federal Court, and Federal Court of Appeal,[9] so it is unlikely to be an error in drafting.

The new process for selecting SCC judges does not change the ultimate appointment process, so it is not necessary to amend the SCA or the Constitution. It merely suggests appropriate candidates to the PM and, hopefully, would prevent an incident like that in 2014 because there are more experts reviewing the candidates.

Humble regards,

The Dominion

 

[1] RSC, 1985, c S-26 [SCA].

[2] Justin Trudeau, Prime Minister of Canada, “New process for judicial appointments to the Supreme Court of Canada”, News (Ottawa: 2 August 2016), online: <pm.gc.ca/eng/news/2016/08/02/new-process-judicial-appointments-supreme-court-canada>.

[3] 30 & 31 Victoria, c 3 (UK), s 41(d) [Constitution].

[4] “The Independent Advisory Board for Supreme Court of Canada Judicial Appointments”, Office of the Commissioner for Federal Judicial Affairs Canada (2 August 2016), online: <www.fja-cmf.gc.ca/scc-csc/index-eng.html>.

[5] Tonda Maccharles, “Supreme court nominee’s sex assault ruling no concern for Kim Campbell”, The Toronto Star, online: <https://www.thestar.com/news/canada/2016/10/24/supreme-court-nominees-sex-assault-ruling-no-concern-for-kim-campbell.html>.

[6] Constitution, supra note 3.

[7] Justice Thomas Cromwell, as quoted by Laura Stone and Sean Fine, “Nadon appointment rejected on technicality, Justice Cromwell says”, The Globe and Mail (Ottawa: 14 September 2014), online: <www.theglobeandmail.com/news/politics/nadon-appointment-rejected-on-technicality-justice-cromwell-says/article31891826/>. For more information see <www.cbc.ca/news/politics/marc-nadon-s-failed-journey-to-the-supreme-court-1.2636403>.

[8] 2014 SCC 21, [2014] 1 SCR 433 at para 4.

[9] See, for example, SCA, s 30.

Which Court is it Anyway?

Dear Sir or Madam,

This week our theme is the judiciary, the structure of our courts. Today we will begin with an outline of the main levels of court in the country. These are the Superior Courts, Provincial Courts, Courts of Appeal, and Supreme Court.

The Superior Courts (known as the Court of Queen’s Bench in Alberta and, for example, the Supreme Court of British Columbia) are the “courts of inherent jurisdiction”.¹ They are the only level of court established in the BNA Act.² These courts have jurisdiction over anything not delegated to other courts by legislation. This jurisdiction includes major criminal trials, divorce, and civil suits over large sums of money.³

The BNA Act allows for the provinces to establish provincial courts underneath the Superior Court.⁴ The Superior Courts delegate much work to the provincial courts. All criminal cases start at the provincial court level, and most are resolved there. The provincial court also handles matters such as traffic violations and civil suits up to a certain amount of money.⁵

Cases heard in these two lower levels of courts can appeal decisions to the Court of Appeal. In Alberta, the Court of Appeal is made up of the Chief Justice of Alberta and thirteen justices of appeal.⁶ They sit in panels of three to hear appeals and evaluate the lower court decisions for errors.⁷ Sometimes it takes a long time for a case to be heard by the Court of Appeal, and in the meantime the lower court judge has been promoted to the Court of Appeal. When this happens that justice is not allowed to hear the case.⁸

The BNA Act also allows the federal government to establish courts, especially courts of appeal, to improve the administration of justice.⁹ This power has allowed them to establish the Federal Court and Federal Court of Appeal, which handle federal matters such as immigration claims, intellectual property (e.g.: copyright and trademark), and appeals from federal administrative boards.¹⁰

The most important court created under this power is the Supreme Court of Canada (SCC). The Supreme Court of Canada is a panel of nine judges headed by the Chief Justice of Canada.¹¹ Currently that position is held by University of Alberta Faculty of Law Alumnus the Right Honourable Beverley McLachlin, P.C. They need a minimum of five judges to sit, but often all nine will form a panel together.¹² The Supreme Court hears appeals from civil and criminal laws from across Canada.¹³ People who want their cases heard by the SCC need to “apply for leave” (which means apply for permission) to appeal to the SCC. These can be referred by the Court of Appeal, the Lieutenant Governor in Council (i.e.: the provincial legislature or federal parliament), or the SCC itself.¹⁴ In addition to appeals from lower court cases, the SCC can also be called on to comment on the constitutionality of a piece of legislation.¹⁵

Our court system can seem complex and daunting to people unfamiliar with it. Today’s post gives a brief outline of only the most active branches of the judiciary. Each of these courts has much more complexity in their roles, and this doesn’t even include specialized courts like the Tax Court, or military courts. Some of these will be explored in more detail later this week.

Your Humble and Obedient Servants,

The Dominion

 

 

¹Moin Yahya, Foundation to Law (Second Edition), Selected Course Material, (Faculty of Law, University of Alberta, 2015), at 35.

²Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 96, reprinted in RSC 1985, Appendix II, No 5.

³Supra note 1, at 34.

⁴Supra note 2, s 92(14).

⁵Supra note 1.

⁶Court of Appeal Act, RSA 2000, c C-30, s 3(1).

⁷Ibid, s 7.

⁸Ibid, s 11.

⁹Supra note 2, s 101.

¹⁰Supra note 1, at 37.

¹¹Supreme Court Act, RSC 1985, c S-26, s 4.

¹²Ibid, s 25.

¹³Ibid, s 35.

¹⁴Ibid, ss 36, 37, and 40.

¹⁵Ibid, s 53.