University of Alberta Faculty of Law Blog

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.

Are You or Have You Ever Been a Mutant?

This week, The Dominion writers demonstrate their nerdy tendencies by discussing fictional legal scenarios. Check back daily to see if your favourite fictional legal case is featured!

Last year, the blockbuster film Captain America: Civil War featured a plan to force super heroes to register with the government. Comics have used this kind of storyline for decades. But would such a legislative scheme be valid in the real world?

The first attempt to register super heroes in the Marvel Universe was the Mutant Registration Act [MRA] (also called the Mutant Control Act). This was first mentioned in the “Days of Future Past” story, in which genocidal, mutant hunting Sentinels controlled a dark future.[1] After the legislation passed a special government strike team called Freedom Force enforced it. Ironically, Freedom Force was comprised of former super criminals who had tried to assassinate the Senator who first proposed the legislation.[2] There were protests against the legislation and at some point it was either repealed or no longer enforced.[3]

This legislation is unlikely to be enforced in Canada. The Charter of Rights and Freedoms guarantees protection against discrimination based on identifiable characteristics in section 15.[4] The courts have expanded the categories that are protected by the Charter using the concept of “analogous grounds” to include things not originally enumerated, such as sexual orientation.[5] Of course, when the analogous ground includes people with the ability to read minds, control the weather, and shoot force blasts from their eyes, it is possible that a violation could be allowed using the reasonable limits clause in s. 1 of the Charter.[6] These powers can make those who possess them extremely dangerous to others. The argument is that the state has a great responsibility to keep control of those with great power.

The second version of registration was very different. Rather than lumping in everyone with the “X-gene”, with powers ranging from “control over the fabric of reality” all the way down to “covered in extra eyeballs”, the Super Hero Registration Act [SHRA] only registered individuals, no matter the source of their powers, who intended to use them. This included many mutants, but also nuclear accident victims and genius engineers.[7] One mutant hero, Firestar, would have had no choice but to register under the MRA. But under the SHRA she was allowed to retire; choosing to refrain from using her powers.[8] The act was eventually repealed at the request of Captain America.[9]

The SHRA is more likely than the MRA to stand in Canada. In fact, Marvel Universe’s Canada has similar legislation, but it did not cause the problems that it did south of the border.[10] When the dust cleared after Civil War, Iron Man ended up in charge of SHIELD, the agency charged with administering the SHRA. He used his new authority to ensure that heroes were properly trained and spread into teams throughout the United States. This project was called the Fifty States Initiative.[11]

Iron Man and the other experienced heroes were responsible for training the next generation, deciding their qualifications, and, when necessary, policing their actions. The Initiative essentially turned being a super hero into a self-regulating profession, not unlike lawyer self-regulation in the real world.[12] The potential constitutional issues would come not from Charter rights, but rather from the BNA Act itself. Self-regulating professions and other licenses are a provincial responsibility.[13] With that said, in a world with super powers it is likely that courts would allow the federal government to legislate on the matter instead of the provinces. Much like pollution and interprovincial trade, it be a problem too large for the provinces to properly handle.[14]

Comic book writers and filmmakers are not experts in constitutional law. Sometimes, a slow burning sub plot would be a much more dramatic event in the real world. Other times, the summer blockbuster event in the comics would be a completely sensible, not particularly controversial, event in the real world. At least not by constitutional standards.

 

[1]  Chris Claremont & John Byrne, “Days of Future Past,” Uncanny X-Men 141 (January 1981). 

[2] Chris Claremont & John Romita Jr, “The Spiral Path,” Uncanny X-Men 199 (November 1985).

[3] Louise Simonson and Walter Simonson, “For All the World to See”, X-Factor 33 (October 1988).

[4] Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[5] Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385.

[6] Charter, supra note 4, s 1.

[7] J Michael Straczynski & Ron Garney, “Mr Parker Goes to Washington pt 1”, Amazing Spider-Man 529 (April 2006).

[8] Paul Jenkins & Ramon Bachs, “Embedded pt 2,” Civil War Frontline 2 (August 2006).

[9] Brian Bendis & Olivier Coipel, “Siege of Asgard - The Fallen,” Siege 4 (June 2010).

[10] Michael Avon Oeming & Scott Kollins, “The Fantastic Four!”, Omega Flight 2 (May 2007).

[11] Dan Slott & Stefano Caselli, “Happy Accidents,” Avengers: The Initiative 1 (June 2007).

[12] Legal Profession Act, RSA 2000, c L-8.

[13] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(9), reprinted in RSC 1985, Appendix II, No 5.

[14] R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401, 49 DLR (4th) 161.

Poundmaker: Wisdom and Resistance on the Plains

Pitikwahanapiwiyin, or Poundmaker in English, was an important Cree leader around the time of Confederation. He resisted Treaty 6 and the reserve system but  signed Treaty 6 to follow the will of his people. As chief in the 1880s he attempted to reduce violence during the 1885 Riel Rebellion. Despite his peacemaker role, he was convicted of treason for his involvement in the Rebellion. He died shortly after.

Pitikwahanapiwiyin was born around 1842 near the Battlefords in Saskatchewan. The son of a Stoney chief and a Metis woman, he was raised with his mother’s Cree family in what is now Alberta.  In 1873 he was adopted by Isapo-Muxika (known in English as Crowfoot), a Blackfoot chief who lost his own son.¹

Pitikwahanapiwiyin was a band headman in 1876 when the Government of Canada negotiated Treaty 6 with Indigenous groups in the central prairies.² This treaty territory is a long strip across what is now central Alberta and Saskatchewan, including Edmonton. The Numbered Treaties were created after the addition of Rupert’s Land expanded Canada’s territory in 1869. These Treaties were established after 1871 in response to Indigenous appeals. Indigenous communities  sought protection from unregulated settlement and the rapid decline of buffalo herds that were central to their livelihood. By 1875 Indigenous resistance had begun to disrupt land surveying projects and threatened  telegraph line construction. The Government of Canada reluctantly agreed to negotiate treaties in order to expand and develop land in the west.³

Pitikwahanapiwiyin was an outspoken opponent of Treaty terms. He was particularly offended by the idea of a reserve system. In response to the reserve system he said, “This is our land, it isn’t a piece of pemmican to be cut off and given in little pieces back to us. It is ours and we will take what we want.” At first, Pitikwahanapiwiyin had a lot of support for his views. However, older leaders opposed him, including his uncle Mistawasis. The more experienced leaders acknowledged his concerns, but were more worried about what would happen if they did not sign treaties. The other leaders were convinced and agreed to sign.⁴

Though Pitikwahanapiwiyin  could not prevent the signing of treaties, his dissent helped negotiate better terms for his people than previous treaties.  The “famine and pestilence” clause, which promised aid from the Government of Canada in the event of those problems, was a large improvement.⁵ Pitikwahanapiwiyin eventually signed Treaty 6 despite his personal objections because the majority of his band supported it.⁶

Pitikwahanapiwiyin was selected as chief shortly after the Treaty was signed. He committed his leadership to negotiating and promoting peace. In the early 1880s reserve living conditions deteriorated in the Prairies. Pitikwahanapiwiyin hosted a Thirst Dance on his reservation in 1884 to discuss improving the situation. Approximately 2000 people attended. A disruption occurred when the North West Mounted Police pursued someone accused of assault on a nearby reserve. Pitikwahanapiwiyin was able to calm the situation and avoid an outbreak of violence.⁷

Violence erupted on the Plains the following year during the second Riel Rebellion. Pitikwahanapiwiyin intended to use the success that Riel’s followers had had at Duck Lake as leverage in negotiations with government agents. As the situation grew more tense, leadership was given to the soldiers’ lodge rather than the chief. Pitikwahanapiwiyin was able to keep the warriors from pursuing the retreating government troops after their camp was attacked in the Battle of Cutknife Hill, even though he did not have official control of the reserve .⁸

Pitikwahanapiwiyin was still tried for treason due to his role as leader of his reservation during the Rebellion, despite his continued commitment to reduce violence. He was sentenced to three years in prison but only served one before being released due to ill health. He died while visiting his adoptive father at the Blackfoot reservation in 1886.⁹

The tragedy of Pitikwahanapiwiyin illustrates the struggle that Indigenous communities face due to the encroachment of settler populations. He saw the danger that the treaties and reserve system posed and tried to mitigate the damage. He was a wise leader and negotiator trapped in an impossible situation.

¹The University of Saskatchewan Libraries, “Pitikwahanapiwiyin (Poundmaker)”, The Northwest Resistance: A dabase of materials held by the University of Saskatchewan Libraries and the University Archives, online: <http://library.usask.ca/northwest/background/pound.htm>.

²Ibid.

³Michelle Filice, “Treaty 6”, The Canadian Encyclopedia (11 Oct 2016), online: <http://www.thecanadianencyclopedia.ca/en/article/treaty-6/>.

⁴Ibid.

⁵Ibid.

⁶Supra note 1.

⁷Ibid.

⁸Ibid.

⁹Ibid.

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.

Interview: Student Legal Services' Executive Coordinator, Neil Thomson

Today, we explore a unique, local resource that facilitates access to justice.  We met with Student Legal Services of Edmonton's Executive Coordinator, Neil Thomson, to find out more about the organization, what they do, and hear about just how much work they do by the numbers.

 

 

Is Representation a Right?

It is something we grow up thinking we know: everyone has a right to a lawyer. But, especially in Canada, that right is not absolute.  Everyone has the right to contact a lawyer, but not usually the right to have representation.

We always hear about right to representation in American television dramas. This comes from the American Sixth Amendment, which grants “Assistance of counsel for...defence” in criminal cases.¹ To ensure that this right is extended to people of low socioeconomic status, the government staffs Public Defender offices with lawyers who take on any client who cannot afford to pay for representation.²

Unfortunately, like many government programs, the Public Defender offices find themselves overburdened. Lack of funding has led to staffing cuts, while caseloads continue to rise. Lawyers are frustrated, finding it increasingly difficult to provide their clients with the level of assistance they both deserve and have a right to. This contributes to the high incarceration rates in America, especially among marginalized minority communities.³

Here in Canada we have only a specific right to counsel in three instances. The most common of these comes from section 10 of the Charter of Rights and Freedoms. The Charter guarantees that, upon arrest, the detainee will have an opportunity to contact a lawyer.⁴ Police have a responsibility to assist in making that contact.⁵ However, police only need to facilitate this opportunity once. Once counsel has been meaningfully contacted police can begin interrogation and the accused has no right to recontact counsel unless there is a change in their charges.⁶

This is not to say that we have no resources for people who are in need of representation. Part of the right to counsel is the right to be advised about the existence of Legal Aid, and in most jurisdictions provided with a toll free number that can be used to contact them.⁷ In Alberta, our Legal Aid service provides representation, usually through lawyers in private practice taking Legal Aid files, for a subsidized fee.⁸ They help people who are charged with any offenses serious enough to have a likelihood of imprisonment, as well as some civil and family matters.⁹

In some jurisdictions, additional services exist to help people accused of less serious crimes and involved in minor civil disputes. Here in Edmonton, Student Legal Services of Edmonton helps people of low socioeconomic status and University of Alberta undergraduate students. This student run organization cannot give advice (being made up of students rather than lawyers), but can help people find their way through the justice system. Come back tomorrow for our interview with Neil Thompson, the Executive Coordinator of the organization, for more information about this program.

The second category of right to counsel is in youth criminal matters. This is the category which most closely resembles the American right to counsel. Section 25 of the Youth Criminal Justice Act describes a right to counsel that specifies that all youth who cannot retain counsel are eligible for Legal Aid, or the appointment of counsel in lieu of such a program.¹⁰

The third and least common type of right to counsel is a Rowbotham application. In rare cases, the accused might slip through the cracks. Their case is too complex to be handled without a lawyer, but they have still been rejected by Legal Aid. In these rare cases, the Judge can appoint a lawyer at public expense to ensure that the accused receives a fair trial.¹¹

Competent legal representation is important to a fair and justice system. It is an unfortunate reality that many of those who need representation the most are unable to obtain it on their own. Our systems attempt to bridge that gap, but could use reforms and more funding. However, they are helping people and providing valuable service to those in need. Hopefully these programs can expand in the future.

 

¹US Const amend VI.

²Oliver Laughland, “The Human Toll of America’s Public Defender Crisis”, The Guardian (7 September 2016), online: <https://www.theguardian.com/us-news/2016/sep/07/public-defender-us-criminal-justice-system>.

³Ibid.

⁴Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10(b) [Charter].

⁵R v Manninen, [1987] 1 SCR 1233, 41 DLR (4th) 301.

⁶R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310.

⁷R v Brydges, [1990] 1 SCR 190, [1990] SCJ No 8.

⁸Legal Aid Alberta, Legal Aid Alberta Rules, p 1, online: <http://www.legalaid.ab.ca/information-resources/Documents/Rules%20and%20Policies/LAA%20Rules%20Dec%207%202015.pdf>

⁹Ibid, p 4-6.

¹⁰Youth Criminal Justice Act, SC 2002, c 1, s 25(4).

¹¹Legal Aid Alberta, Rowbotham Application Information, online: <http://www.legalaid.ab.ca/information-resources/Documents/Court%20Ordered%20Counsel/Rowbotham%20Application%20Information.pdf>.

Insecurity About Security Certificates

Today is the tenth anniversary of the Supreme Court of Canada’s [SCC] decision in Charkaoui v. Canada (Citizenship and Immigration).¹ This decision centred on the Canadian government’s procedure on issuing security certificates. These certificates are used to identify non-citizens who might be a risk to public safety. The SCC forced the federal government to amend the Immigration and Refugee Protection Act [IRPA] to ensure its constitutionality.²

The legal question that  Mr. Charkaoui’s Constitutional challenge presented was how the government should balance its responsibility to protect the safety of its citizens and to remain accountable to constitutional values and democracy.³ The security certificate provisions in the IRPA tried to balance these issues by giving the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness the authority to  issue “security certificates” to detain and deport non-citizens deemed to be a danger to public safety. These certificates and the detention based on them were reviewed by a judge, but the evidence on which they were based did not have to be disclosed to the subject of the certificate. This was a major violation of habeas corpus, the idea that someone must be charged with a specific crime to be kept in custody.⁴ The SCC held that this violated sections 7, 9, and 10(c) of the Charter.⁵ Most of the violations fell under s. 7, the right to life, liberty, and security of the person.⁶

Section 7 specifies that life, liberty, and security (usually liberty) can be deprived “in accordance with the principles of fundamental justice”.⁷ The provisions violated the principle of fundamental justice of fair procedure.⁸ The individual affected was entitled to a hearing before a judge but the SCC’s concerns with the hearing were twofold. Firstly with the appearance of impartiality of the judge and secondly with the accused’s inability to raise a proper defence. Both issues stem from the secret nature of the incriminating evidence.⁹

When the judge reviewed the secret evidence, they would have to be alone with the government lawyers. No representative of the accused was allowed to be present.¹⁰ This was concerning because the judge may appear to be acting as an agent of the state and that their role in the process was investigative and defense-oriented.¹¹ Canada’s judicial system is adversarial, not inquisitorial, which aims to maintain the impartiality of judges.

One of the SCC’s suggestions was to establish specially cleared legal counsel to represent the person named in the certificate.¹² The federal government used this method to bring the legislation into compliance with the Charter. The new provisions direct the Minister of Justice to establish a list of special advocates.¹³ They have the responsibility to challenge the claim that evidence must be kept secret and to challenge the relevance, reliability, and sufficiency of the information when it is to be kept secret.¹⁴

Security certificates recognize that some things must be kept secret in order to safeguard public safety. However, that safety must not  come at the expense of the fundamental rights and freedoms guaranteed by the Charter. The special advocates system ensures that people being held or deported based on secret information have someone to represent them throughout the process, just as anyone else accused of a criminal offence is afforded that right.

 

¹2007 SCC 9, 1 SCR 350.

²SC 2001, c 27.

³Supra note 1 at para 1.

⁴Ibid at para 2.

⁵Canadian Charter of Rights and Freedoms, ss 7, 9, and 10(c), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

⁶Supra, note 1, at para 3.

⁷Supra, note 5, at s 7.

⁸Ibid at para 28.

⁹Ibid at para 31.

¹⁰Ibid at para 35.

¹¹Ibid at para 36.

¹²Ibid at para 70.

¹³Supra note 2, s 85(1).

¹⁴Ibid s 85.1(2).

Someday We'll Find It, The Rainbow Connection

It is important to identify that none of the contributors to The Dominion self-identify as members of the LGBT community. We recognize that, today, we are writing about things that we haven't personally experienced and that our ability to competently write on this issue is limited. We also recognize that the abbreviation “LGBT” is considered by many to be incomplete. We have chosen to err on the side of simplicity and familiarity. It is not our intent to offend. We apologize for any shortcomings that appear below.

 

One might assume that LGBT rights in Canada were worse the further one delves back into our history. This would be incorrect. While LGBT rights in 1867 were nowhere near what they are today, it's important to note that things actually got a lot worse before they got better.

In 1867, there were “buggery” laws on the books,¹ and this crime was punishable by death in British North America. As abhorrent as this is, these were inherited laws from Great Britain and officials on this side of the pond simply didn't see fit to impose the punishment. While there were many people sentenced to death for this “crime,” there are no records of this sentence being carried out. Instead, the convicted were pardoned or had their sentences commuted.

As unjust as this position was, in 1948 the Criminal Code was amended to label gay men as “criminal sexual psychopaths”, as well as to provide for indeterminate prison sentences.² In the 1950s and 1960s, a pseudoscientific device known as the “fruit machine” was employed to identify gay men.  These men were deemed to be ineligible for government jobs, including the Canadian Forces and the Royal Canadian Mounted Police.³ This signified a low point for LGBT rights in Canada.

In 1968, Minister of Justice John Turner introduced The Criminal Law Amendment Act, 1968-69, an omnibus bill that decriminalized homosexuality.⁴ His predecessor, Pierre Trudeau, who had introduced an earlier version of the Bill, famously commented that “there's no place for the state in the bedrooms of the nation”.

Of course, mere decriminalization was insufficient, and systemic discrimination against LGBT people was still a problem. It still is, but things have started to get better. The advent of the Canadian Charter of Rights and Freedoms⁵ in 1982 brought forth important protection against discrimination for segments of the population that were identified as minority groups.⁶ Sexual orientation was NOT included.

It was not until 1995⁷ that the Supreme Court of Canada “read-in” sexual orientation to s. 15 of the Charter. In 1998⁸ the Court went a step further and ensured that provincial human rights statutes needed to be interpreted as if sexual orientation was deemed to be a prohibited ground for discrimination. This was held to be so, regardless of the intention of the provincial governments when crafting their legislation. The next year, the Court ruled on the landmark case M. v. H.⁹ allowing for same sex marriage in Canada, later resulting in the federal Civil Marriage Act¹⁰ which codified this right.

While these measures have undoubtedly improved life for gay, lesbian, and bisexual people the battle for equality has just begun for those with non-traditional gender expressions and identities. An Act to Amend the Canadian Human Rights Act and the Criminal Code is currently before Parliament to add protections from discrimination on these grounds.¹¹

Legislation is not enough. The systemic discrimination that has resulted in unfair treatment to these minority groups are not going to disappear by the mere stroke of a pen. While good law is indeed necessary, it is not sufficient.

To those of our readers in law school, legal professions, politics, and others who occupy positions of power or are going to in the future, consider this a call to arms. If our country is going to keep advancing against intolerance, we need to help lead the charge. We must decide how we are to use the influence that will invariably be entrusted to us, and we must do so fearlessly.

Intolerance and hate have dominated for far too long. For what it's worth, we're choosing love. We hope that you'll join us.

 

¹ Consolidated Statutes of Canada 1859, c 91, s 22.
² RSC 1927, c 36.
³ Gary W Kinsman, Dieter K Buse & Mercedes Steedman, Whose National Security?: Canadian State Surveillance and the Creation of Enemies (Canada: Between the Lines, 2000).
⁴ SC 1968-69, c 38.
⁵ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11 [Charter].
⁶ Ibid at s 15.
⁷ Egan v Canada, [1995] 2 SCR 513.
⁸ Vriend v Alberta, [1998] 1 SCR 493.
⁹ [1999] 2 SCR 3.
¹⁰ SC 2005, c 33.
¹¹ Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2016.

Firearms Jurisdiction in Canada: Big Issues and Tiny Details

Last week, Federal Public Safety Minister Ralph Goodale announced an overhaul to the Canadian Firearms Advisory Committee. This federal committee examines rules regarding firearms in Canada and recommends reform. The committee will now be headed by an as yet to be identified “distinguished Canadian jurist” (whose name has not yet been released), and efforts have been made to diversify the committee. The new committee will feature representation from mental health and family violence experts, in addition to the police, farmers, hunters, and sport shooters who were already represented.¹

But why is this federal jurisdiction? Firearms are property, and property falls under provincial responsibility.² Despite provincial authority over property, this did not prevent the federal government from passing the Firearms Act in 1995.³ The purpose was to  establish licensing and registration regimes for firearms, in which non-compliance would be a criminal offense.⁴ The application of criminal law put the regulatory regime under federal constitutional authority.⁵

This assessment by the federal government was challenged by Alberta in 1996, and ended up going to the Supreme Court of Canada (SCC) in 2000.⁶ The province challenged the legislation on the grounds that firearms, as personal property, fall under provincial authority in s 92(13) of the BNA Act.⁷ The SCC did not accept Alberta’s challenge and concluded that the legislation was valid criminal law.⁸

One important element that the SCC examined was identifying a valid criminal law purpose in the legislation. The SCC found that purpose in public safety. The definition of firearms includes the ability to cause bodily harm and death.⁹ This justifies their restriction under criminal law because they are seen as inherently dangerous objects.¹⁰ The Court  also found there to be prohibitions and penalties included.¹¹

Purpose, prohibition, and penalty are not enough. Jurisdiction over some complex issues is decided by whether or not the prohibitions and penalties are regulatory or criminal in nature. In the case of the Firearms Act, there is a thin, nuanced line between the two. There is a complex regulatory scheme with a large amount of power given to the Chief Firearms Officer (CFO) and the Registrar. However, the actual offenses are clearly defined in legislation rather than being decided by the CFO and Registrar. The offenses are related to possession without a licence, while the CFO and Registrar made decisions on who can be disqualified from possessing a license.¹² The key point according to the SCC was that the legislative aim was not to regulate firearms, but to regulate who can access firearms. This subtle distinction changed the legislation from regulating property to regulating people, putting it under federal criminal jurisdiction.¹³

That distinction may be confusing to some. This shows how subtle the line can be between federal criminal law and provincial regulatory law. These kinds of decisions by the SCC can hinge on nuanced details and exemplifies why constitutional law is so important.

 

¹ Alison Crawford, “Public Safety Minister to Unveil 'Substantially Different' Firearms Advisory Committee”, CBC News (26 Jan 2017), online: <http://www.cbc.ca/news/politics/goodale-firearms-advisory-committee-1.3953521>

² Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985, Appendix II, No 5.

³ SC 1995, c 39.

⁴ Ibid, s 4.

⁵ Supra note 2, s 91(27).

⁶ Reference re Firearms Act (Canada), 2000 SCC 31, 1 S.C.R. 783, at 1.

⁷ Ibid, at 3.

⁸ Ibid, at 58.

⁹ Supra note 3, s 138(2).

¹⁰ Supra note 6, at 33.

¹¹ Ibid, at 34.

¹² Ibid, at 37.

¹³ Ibid, at 38.

Should the State Criminalize Family Choices?

Canada is known as a country of immigrants and prides itself on its multicultural heritage.  When immigrants migrate to this country they bring with them many unique beliefs, customs and traditions. Polygamy is a custom practiced overseas, but has been outlawed in Canada since the 1800’s. The practice recently made its way into mainstream media and the courts. In addition to some immigrants who bring polygamist practices from their home countries, members of a Mormon community in British Columbia have also been featured in the media. Two of their main members have recently been charged with polygamy and other criminal offences. Coverage of immigrant cases and the British Columbia charges has created a very interesting Charter question. If polygamy is part of a particular religion, do these laws violate section 2(a) of the Charter?

Background to Polygamist Laws in Canada

Polygamy has been a criminal offence in Canada since 1892 under the Criminal Code.¹ Polygamy is currently illegal under s. 293 of the Criminal Code. The law criminalizes any marital union exceeding two people, and also criminalizes celebrating or assisting these unions.² In addition, the common law has long considered marriage “as the voluntary union… of one man and one woman to the exclusion of all others.”³ The common law definition of marriage evolved with the recognition of same-sex marriage throughout Canada.⁴ However, the underlying principle of marriage being a union between two people still remains and is recognized in section 2 of the Civil Marriage Act.⁵

Practicing Polygamy

Little research exists to determine the number of polygamous unions in Canada. In Ontario, polygamist marriages that are validly entered into in a person’s home country may be granted legal recognition.⁶ While polygamy is federally outlawed, the Ontario Family Law Act has allowed for this minor exception for immigrant families under s. 1(2).⁷ The province likely implemented this legislation to allow polygamous families to remain united when coming to Canada. Without this protection, only one spouse would be granted legal marriage rights upon immigration to Canada, creating a problematic family structure for individuals who have always lived this way. Some research suggests that there are a few polygamist families who have sought immigration to Ontario for this reason. Others have had to seek immigration with only one recognized spouse, because polygamous marriages are not recognized or legally protected in other provinces.⁸

The most renowned practicing polygamist group in Canada is a community of Fundamental Mormons residing in Bountiful, British Columbia.⁹ Recently, two members of this group were charged with polygamy and human trafficking of under-aged members of the religious community.¹⁰ For the polygamy charges there is a possibility that the men may make Charter claims that Canada’s polygamy laws are unconstitutional. If this happens, changes to the Civil Marriage Act and Criminal Code may also be required.  

Charter Issues

The main question arising is whether Canada’s polygamy laws violate s. 2(a) of the Charter. Under s. 2(a) individuals are guaranteed the right to freedom of religion.¹¹ If polygamy is part of a religious tradition, it is possible for these groups to argue the Civil Marriage Act and Criminal Code are discriminatory based on their religious beliefs.  Beverly Baines, a law professor at Queen’s University believes that if the issue ever reaches the Supreme Court of Canada it will be hard to uphold the current polygamy laws.¹²

While the men from Bountiful are also charged with child trafficking, that in and of itself does not equate to polygamy.¹³ The problem with the current framework is that these men are being charged, among other acts, for their family practices. If the polygamy laws were abolished, the men would still be charged with their crimes against the children in Bountiful. Baines’ main focus is on gender equality, and hopes that women in polygamous relationships will have the chance to speak out as to whether polygamy is a harmful and abusive practice.¹⁴ If the women and children in these relationships believe the practice, excluding other criminal actions, is not abusive then the government should have no right criminalizing family choices.¹⁵ After all, at one point in time it was illegal to be in a same-sex marriage, a practice that is now widely accepted worldwide.

 

¹ Bala et al, “An International Review of Polygamy: Legal and Policy Implications for Canada” in Angela Campbell, ed, Polygamy in Canada: Legal and Social Implications for Women and Children (Ottawa: Status of Women Canada, 2005) 1 at 3.

² Criminal Code, RSC 1985, c C-46, s 293.

³ Hyde v Hyde and Woodmansee (1866), LR 1 PD 130 at 133.

⁴ Bala, supra note 1 at 3.

⁵ Civil Marriage Act, SC 2005, c 33, s 2.

⁶ Bala, supra note 1 at 3.

⁷ Family Law Act, RSO 1990, c F3, s 1(2).

⁸ Ibid.

⁹ Jason Proctor, “B.C. polygamists, accused of taking child brides to U.S., face trial”, CBC News (21 November 2016), online: <www.cbc.ca/news/canada/british-columbia/polygamy-bountiful-oler-blackmore-1.3860888>.

¹⁰ Daphne Bramham, “Polygamist parents from Bountiful, British Columbia, go on trial for child trafficking”, National Post (22 November 2016), online: <news.nationalpost.com/news/canada/polygamist-parents-from-bountiful-british-columbia-go-on-trial-for-child-trafficking>.

¹¹ Canadian Charter of Rights and Freedoms, s 2(a), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

¹² Rachel Browne, “Feminists call for decriminalization of polygamy”, Macleans (15 August 2014), online: <www.macleans.ca/news/canada/in-wake-of-bountiful-charges-feminists-call-for-decriminalization-of-polygamy/>.

¹³ Ibid.

¹⁴ Ibid.

¹⁵ Ibid.

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).

Could Trump be Trump in Canada?

Tomorrow, Donald J. Trump will be officially sworn in as the 45th President of the United States. Here in Canada, two of the candidates for the leadership of the Conservative Party have been described as “Canada’s Trump”: Kelly Leitch and Kevin O’Leary. Leitch has gained that unfavourable comparison due to her statements about “Canadian culture” which her critics call xenophobic.¹ O’Leary admits his similar resume (both men are business tycoons and reality TV stars), but is quite clear that he has drastically different social policies.² But could either of these people take up the toxic rhetoric that Trump is so known for?

American case law establishes a very narrow window to forbid hate speech. The case law comes from Brandenburg v. Ohio.³ This Supreme Court decision overturned the conviction of a Ku Klux Klan leader for spreading hate. The Court found that advocating for discrimination and hate was insufficient to justify an exception to the First Amendment protections of freedom of speech and criminal prosecution. The appropriate threshold was incitement to imminent violence. Even an act as obviously aggressive as burning a cross was considered unpunishable for the content of the speech in R.A.V. v. City of St. Paul.⁴ The closest case for our purposes would be Snyder v. Phelps, an attempt to prevent the Westboro Baptist Church from brandishing their homophobic signs.⁵ These cases demonstrate the high threshold required to ban outrageous and objectionable speech.

In Canada, we tilt the balance toward protecting people’s right to feel safe from discrimination. Our leading case on the subject is R. v. Keegstra.⁶ Mr. Keegstra was an  Alberta Social Studies teacher who taught Holocaust denial and other anti-Semitic conspiracy theories to his students. He was prosecuted under section 319(2) of the Criminal Code, which criminalizes the promotion of hatred against an identifiable group.⁷ This decision of the Supreme Court of Canada takes into account the reasons that freedom of expression is protected by s. 2(b) of the Charter.⁸

The SCC considered the spirit of s. 2(b), and decided that it was designed to foster democracy and help people further (socially appropriate) aspirations. Hate propaganda was found to be inconsistent with those principles, making it easier to justify infringement. An application of the Oakes test (the test in Canadian law for justification of infringement of a Charter right), found hate propaganda to be substantially harmful, and the limits set by s. 319(2) of the Criminal Code, in that they could not be overly impairing on the right and must be proportional to the objectives.⁹ This justified the criminalization of hate propaganda, done in accordance with s 1 of the Charter, which allows infringement of Charter rights when necessary.¹⁰

So what about Trump? It would likely be a difficult case. Trump is rarely explicit in his intention to promote hatred of minority groups, despite having that effect. After an attack by his supporters on a homeless Latino man he characterized them as passionate people who had gotten carried away, rather than repudiating their terrible actions. Even his infamous comments about Mexicans being “rapists and drug dealers” were qualified with “some, I assume, are good people”. Moreover, this comments were limited to accusing the Mexican government of sending “undesirables”. His only comments that may be be prosecutable under our laws are his promises to ban and register Muslims.¹¹

Canada and the United States both enshrine freedom of expression in our Constitutions. We both treat these rights as vitally important, but not without exception. In Canada, our exceptions are larger and more nuanced than theirs. However, even the Canadian threshold for what constitutes hate speech is fairly high. For all the awful things someone could say, very little of it would be subject to prosecution. I only hope that if the time ever comes such statements are subject to a massive loss of votes.

 

¹Thomas Walkom, “Canada could have it’s own Donald Trump”, Editorial, The Star (November 14, 2016), online: <www.thestar.com>.

²Josh Elliot, “O'Leary Committee Sees 'Clear Path to Victory' for Conservative leadership”, CTV News (12 January 2016), online: <www.ctvnews.ca/politics/o-leary-committee-sees-clear-path-to-victory-for-conservative-leadership-1.3238107>.

³(1969), 395 US 444.

⁴(1992), 505 US 377.

⁵(2011), 562 US 443.

⁶[1990] 3 SCR 697, [1990] SCJ No 131.

⁷Criminal Code, RSC 1985, C c-46, s 319(2).

⁸Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

⁹Keegstra, supra note 6.

¹⁰Charter, supra note 8, s 1.

¹¹Lydia O’Connor and Daniel Marans, “Here Are 13 Examples Of Donald Trump Being Racist”, Huffington Post (29 February 2016), online: <http://www.huffingtonpost.com/entry/donald-trump-racist-examples_us_56d47177e4b03260bf777e83>.

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!

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.