Cover

Youth and the Law

Contents

Acknowledgements

Introduction

Chapter 1 Physical Punishment of
Youth — A Crime?

Chapter 2 Violent Young Offenders:
Setting and Applying Standards

Chapter 3 Bullying:
Degrees of Harm

Chapter 4 Police Sniffer Dogs:
Schools and Public Places

Chapter 5 Youth:
Police and the Right to Be Warned

Appendix Youth Criminal Justice Act:
Section 146

Acknowledgements

First, I would like to acknowledge the Supreme Court of Canada. Over the decades, the membership of this nine-person Court has altered through retirement (mandatory at age seventy-five) or death. Increasingly, the Court has tried to hand down judgments that come ever closer to being decisions that can be read, understood, and discussed by those who want to be informed about the structure of our law, of our government, and more importantly, of our society’s values. So, I thank — most profusely — the Supreme Court of Canada.

A second link in the chain between the law and the people is the media. It is possible, of course, in our highly computerized society to read the decisions of the Supreme Court of Canada online, but that can be an arduous process. On occasion, magazines such as Maclean’s feature a particular subject for investigative reporting, in which the Supreme Court of Canada’s judgments (such as those relating to tobacco) may form a part. Newspapers such as the Toronto Star may select a story reflecting a matter of social concern, such as bullying. And, on a daily basis, radio or television may briefly report on such stories.

The net effect of media reporting, at best, ranges from episodic to minimal. Perhaps the one constant to which we frequently refer in this series is the informed editorials in Canada’s national newspaper, the Globe and Mail. Without hesitating, the Globe and Mail granted the right to reprint editorials (and there were many) on Supreme Court of Canada decisions. The approach of the Globe and Mail seems to be: Let the public be made aware. I thank them for their generosity and for maintaining consistently high standards.

Ordinarily, I would say that I take full responsibility for the contents of this book. Hopefully, however, the contents do not reflect my judgments but those of the Supreme Court of Canada. My task, as I saw it, was to discuss those judgments in a nonjudgmental and accessible way.

Introduction

“It’s the law!” What does that mean? If the law is “broken,” especially the criminal law, then there may be a penalty, such as a fine or jail time, or community service, or conditional release. But who makes the law? Is it the government? How can a legislature draw clear lines, for example, in imposing individual responsibility?

Consider a fifteen-year-old victim of school bullying. He has “had enough.” He takes his father’s gun from a locked closet, loads it, and goes to school, where he shoots and seriously wounds one of his bullies. He is apprehended and charged. But how is he to be tried and, if found guilty, sentenced? Is he to be treated as a young offender or as an adult? If convicted, will he have a record that will follow him through high school and university, and into the job market? Is it really enough to say that a court will make the decisions?

The central issue explored in Youth and the Law is how a court makes such decisions. We will find that, like most laws intended to carry forward important public policy, those relating to young offenders significantly depend upon the courts to give such policy meaning in specific applications. Public policy has not varied for decades: protect and guide the young — and, at the same time, protect society. How is a court to interpret this policy in legal decisions? After all, isn’t the only real meaning of the law how it is applied in specific cases?

The several thousand courts in Canada operate under certain principles or guidelines. A primary source of those principles is the Supreme Court of Canada. That is our jumping-off point: specific cases decided by that final arbiter, the Supreme Court of Canada. It may take five or more years for the Supreme Court to hear and decide an appeal. Yet, once the Supreme Court decides the case, it becomes the law. The majority decision of the nine justices of the Supreme Court is binding not only on the parties to the case, but on all people living in this country. The Court’s ruling is the law of the land. It binds lower courts, legislatures, citizens, and residents of Canada. Only with considerable difficulty can a legislature overturn a Supreme Court ruling.

The Court generally does not make law; rather, it interprets the law in a specific case. In doing so, the lower court’s findings are reviewed, and the Court then applies those findings to its own interpretation of the law. The parties to a case get an answer to their conflict: yes, no, or maybe. Sometimes the case is returned to the lower court for further proceedings on issues outlined but not resolved by the Court. For the most part, the parties are not interested in much else other than an answer.

The decision that is binding on the nation is how the Court explains itself — how it defines the issues and its reasoning in bringing them to conclusion. In this book, every effort has been made to present the Court’s reasoning objectively and clearly. Readers will be given citations to access the Court’s decisions online and will be left to critique judgments.

Let there be no doubt that public opinion can and does play a role in shaping law enforcement policy. Occasionally, if a Supreme Court decision is seen as moving too far from public acceptance, the government may decide that the decision should be clarified or redefined by new law. This is what happened when the Young Offenders Act was recast as the Youth Criminal Justice Act, which exposes youth offenders to adult sentences.

Still, both the Court and the legislature must operate in the context of the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the supreme law of the nation. This is partly what is meant by Canada being a nation of law. The Charter, enacted in 1982, can be seen as a firewall against popular sentiment. For example, the Charter tends to inhibit any government action that limits the rights of minority groups, such as the incarceration of Japanese-Canadians during the Second World War.

This book presents many case studies that focus on specific situations applied to the Charter. Through these decisions, we become aware of our responsibilities and our rights as citizens. And we see, as the Supreme Court must see, that process never ends. New cases, reflecting new facts, will continue to be presented, and their outcomes will be measured against the law, both constitutional and statutory.

Who Are the Judges?

A few words must be said about the judges (or justices, as Supreme Court of Canada judges are called). Who are they? How are they chosen? How do they go about coming to decisions? The answer to these questions may help us better understand the decisions that we will be examining.

In 1989, Beverley McLachlin, then chief justice of British Columbia, received a telephone call from the prime minister of Canada. He asked if she would consider a new position: that of a justice of the Supreme Court of Canada.

It was within the power of the prime minister, accepted by his Cabinet, to offer the position. The appointment of a justice of the Supreme Court of Canada did not have to go through parliamentary committee or parliamentary consent, as such — a process enormously different from that of the United States where the president nominates and the Senate, following hearing, either gives the nomination a stamp of approval or rejection. (If the Senate rejects, then the candidacy of that person comes to an end.)

Justice McLachlin thanked the prime minister, accepted his offer, and became a justice of the Supreme Court of Canada. On January 7, 2000, the prime minister offered Justice McLachlin the position of chief justice of the Supreme Court, and she accepted.

There are nine justices who make up the Supreme Court of Canada. The conditions for their appointment are few, but they are important. They are appointed through the prime minister and the Governor in Council. In this regard, the “pool” for appointment by law is comprised of superior court judges or barristers with at least ten years in practice in a province or territory.

Once named to the Supreme Court, a justice cannot be removed from office so long as the justice carries out her/his duties in accordance with the law. But, at the age of seventy-five, there is forced retirement. (However, many retired justices are called back to serve in chairing special commissions.) A serving justice can only be removed from office for bad conduct or incapacity (such as illness).

By law, the prime minister is required to appoint three justices from Quebec. By tradition, the prime minister also appoints three justices from Ontario, two from the West, and one from Atlantic Canada.

How the prime minister goes about selecting a justice for the Supreme Court, given the broad limits described, is for the prime minister to determine. In 2012, Prime Minister Stephen Harper set new guidelines. He named a panel of five members of the House of Commons: three Conservatives (the prime minister’s governing party), one New Democrat, and one Liberal. Their task was to review a list of qualified candidates put forward by the federal justice minister in consultation with the prime minister, the chief justice of the Supreme Court of Canada, the chief justice of Quebec (where the next justice was to be selected), the Attorney General of Quebec, and provincial and territorial bar associations (as well as public suggestions).

The panel was instructed to submit a list of three recommended candidates — unranked — to the prime minister and he would select one from that list. A public hearing before a special parliamentary committee would be held before the prime minister finalized the appointment.

The first justice selected through the process described above was Richard Wagner, who was a long-time trial lawyer before becoming a justice of the Quebec Court of Appeal. In an interview with the Globe and Mail, Justice Wagner said, “I might surprise you, but I liked the [hearing] process. There is nothing to hide. I think a judge should follow the directions of society, and that means to explain to citizens what we do, how we do it, and why we do it. I think it’s fair and it’s reasonable.”

A central concern, said Justice Wagner, is ensuring access to the justice system for all Canadians.

Some Facts

On the whole, it can be said that justices of the Supreme Court of Canada historically do not like to talk about themselves. But, there are some facts that may give rise to questions going to the makeup of the Court:

There have been no persons “of colour” appointed to the Supreme Court of Canada.

There have been no persons from among the “first peoples” (First Nations, Métis, and Inuit) appointed to the Supreme Court of Canada.

The fact is that white men, drawn from an elite part of the legal profession, constituted the “pool” from which justices of the Supreme Court of Canada were drawn — at least until 1982. In that year — at the time the Charter of Rights and Freedoms, an important part of the Constitution of Canada, came into effect — the prime minister named the first woman to the Supreme Court: Bertha Wilson. She had emigrated to Canada with her husband John, a Presbyterian minister in Scotland, in 1949.

Justice Wilson had received an M.A. in philosophy at the University of Aberdeen. Once in Canada, she applied for admission to the law program at Dalhousie University in Halifax. She recalled an interview with the dean of the law school, and chuckled about it later. The dean advised her to “go home and take up crocheting.” She didn’t. She entered the Dalhousie law program in 1955 and was called to the Nova Scotia Bar after graduation.

In 1959, Justice Wilson moved to Toronto where she found employment with a leading law firm and later became head of research for that firm. Her job consisted in no small measure of writing opinions for members of the firm — a task that went a long way toward preparing her for work as a judge.

Justice Wilson received an invitation in 1979 to sit as a judge on the Ontario Court of Appeal. Her immediate response was surprise — and then laughter when, as a judge whose opinions reflected women’s rights, she said, “I’ll have to talk it over with my husband.” She accepted the position on the Court of Appeal and served there until her appointment to the Supreme Court of Canada.

Justice Wilson was a Supreme Court justice from 1982 to 1991, retiring at the age of sixty-eight. There, she had an important role in interpreting the then newly-established Charter of Rights and Freedoms, including decisions relating to a woman’s right to abortion (R. v. Morgentaler [1988] 1 Supreme Court of Canada Reports 30) and a spouse’s right to claim self-defence to murder based on physical abuse by her/his spouse (called in law the battered wife syndrome) (R. v. Lavallée [1990] 1 Supreme Court of Canada Reports 852).

Since the appointment of Justice Wilson, a number of women have served as justices of the Supreme Court of Canada. In 2012, after serving as a justice for what she called ten “intense” years, Justice Marie Deschamps of Quebec resigned at the age of fifty-nine. (At that time, there were four women sitting as justices.) In an interview with CBC News a week after her resignation, Justice Deschamps was asked about “gender balance” of the Court. She answered, “I think every court should aim for half and half…. It’s important that [the Court] is balanced…. I hope that the government will maintain at least four women on the Court. Whether the next candidate is a woman or it’s the one that follows it will be for the government to decide.”

In fact, the prime minister named Justice Richard Wagner of Quebec to the Court, thus lowering the number of women justices (at least for the time) to three.

It should be noted that the chief justice at the time of Justice Deschamps’ resignation was Beverley McLachlin.

How are Judges to Decide?

May emotion play a role in decision-making? For us, in reviewing decisions of the Supreme Court of Canada (or the decisions of any court, for that matter), an important question is whether justices can decide a case largely on the facts and the law as given. Can they remove (or largely isolate) any individual bias?

There are two parts to the answer — at least as applied to the Supreme Court of Canada:

No single justice decides a case. If the Court sits as a panel, there usually are seven justices who meet, discuss, and work toward an opinion that the chief justice usually assigns to a specific justice. If there is disagreement that cannot be otherwise resolved, then the way is open to a written dissent or a concurring opinion. (Often the justices are able to work out their disagreement to form a majority or a unanimous opinion.)

A case may be one that summons enormous emotion. Such was the case of Robert Latimer, a Saskatchewan farmer charged and convicted in the “mercy” killing of his disabled daughter. Twice the case went on appeal to the Supreme Court of Canada. The second time, the appeal was from a judgment of the Saskatchewan Court of Appeal that had increased a sentence of one year to ten years.

In a decision by the Court as a whole — not one attributed to any particular justice — the Supreme Court of Canada affirmed the judgment. The role of emotion in coming to decision was minimized.

Justice Ian Binnie, on his retirement after serving fourteen years on the Court, commented on the Latimer case in an extensive interview with Kirk Makin of the Globe and Mail:

The Robert Latimer case was a hugely controversial case, but to me, the legal outcome was straightforward. You can’t have people making their own judgments as to whether their child should live or die.

In saying that, I make no moral judgment about what Latimer did. I accept his word that he did it because he thought it was best for his daughter.

But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows from the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.

So, there is no necessary correspondence between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant.

References and Further Reading

Fitzpatrick, Meagan. 2012. “Supreme Court Should Have Four Women Says Retiring Justice,” CBC.ca, August 15.

Makin, Kirk. 2011. “Justice Ian Binnie’s Exit Interview.” Globe and Mail, September 23.

_____. 2012. “Supreme Court Judge Warns of ‘Dangerous’ Flaws in the System.” Globe and Mail, December 12.

Chapter 1

Physical Punishment
of Youth — A Crime?

Over the decades, the law has shielded young offenders from the full force of the criminal justice system. As reflected in statutes and court decisions, the law has long assumed that young people lack the maturity of adults and consequently are not to be held fully responsible for their actions. We can ask, at what age is a young person deemed in need of special protection and at what age does that protection end? Public policy states that, if at all possible, parents are to raise their children. The State intervenes only to support parents or those filling the role of parents, such as grandparents or other legal guardians.

We will begin our examination of young offenders’ case studies with the subject of spanking. Criminal law is associated with punishment. Spanking is a form of corporal punishment. If we substitute the word spanking with hitting or striking, then we begin to see how it might be considered in setting public policy for young offenders. It can be used to define a “risk zone” — a danger zone in the sense that it may well bring the court to examine the lawfulness of what has been challenged.

In years gone by, it was usual for frustrated parents whose children seemed out of control to call upon the constable on the beat for assistance — to help their children conform with basic social behaviour. Modern life is more complex, but teachers and school principals still have wide discretion in shaping and enforcing rules for student conduct, including student and locker searches. Their power, however, is now subject to challenge. They may be questioned in court to prove that they acted reasonably. Students find that they have responsibilities and rights. For even as students, they are recognized as persons within the meaning of the Charter.

With most crimes, the first point of contact is the police. They investigate the incident and determine (perhaps in consultation with the Crown) whether charges will be laid. How do the police make decisions when the alleged wrongdoers are youths? How are youths to be questioned? Does the criminal process become more rigorous when the crime becomes more violent? Does the violent youthful offender lose the right to be treated as a youth in need of protection? This book will address such issues.

The range of penalties for adults violating the criminal law includes probation (often with conditions), prison, and possibly fines. All of these penalties are administered, directly or indirectly, by the State. In centuries past, the lash was part of criminal sentencing. In modern Canada, such corporal punishment is no longer used. Since individuals cannot legally assault others, the State cannot assault those who have violated its laws. Still, the State has allowed parents, teachers, or legal guardians to use force “by way of correction.” How does this square with the Charter of Rights and Freedoms, part of the Constitution of Canada that, among other rights, affords all persons life, liberty, and security of the person? Among the questions raised in this chapter are:

Does the criminal law of assault protect children as well as adults?

Who may spank a child?

What limits are there to physical force by adults against children?

The Criminal Code of Canada allows parents and teachers to use “reasonable force” to correct a child or pupil. This is an exception to the general criminal law, which prohibits anyone from striking another person without consent. The exception in section 43 of the Criminal Code provides: “Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

The Foundation Case

It was the constitutionality of this provision that was challenged by the Canadian Foundation for Children, Youth and the Law (the Foundation) on several grounds, all of which centred on the Charter. In light of the following points, the Foundation asked for a declaration that the defence to assault be set aside:

The Foundation claimed that the exception violates section 7 of the Charter, which guarantees individuals against state action that infringes on life, liberty, or security of the person contrary to the principles of fundamental justice. This is done, for example, by a law that is too vague for there to be objective rules. (See the portion of the law quoted above.)

Allowing the exception, said the Foundation, in effect gives state approval to cruel and unusual punishment in violation of section 12 of the Charter.

Children are treated differently from adults. They are not given the same protections under the law, and this is a denial of their right to equal protection within the meaning of section 15(1) of the Charter.

The trial judge and the appellate court rejected the arguments of the Foundation. The matter came before the Supreme Court of Canada on June 6, 2003, and it was decided on January 30, 2004, in Canadian Foundation for Children, Youth and the Law v. Attorney General of Canada (the Foundation case). The Court permitted a number of public and private organizations, such as the Child Welfare League of Canada and the Ontario Association of Children’s Aid Societies, to intervene in the case.

In a 6-3 vote (actually 7-2, considering the partial dissent of Justice Binnie, which approved the conclusion reached by the majority but not its reasoning), in the opinion given by Chief Justice Beverley McLachlin, the Court allowed the exception to the Criminal Code. But it listed a number of limitations on the use of the Criminal Code defence. The Court addressed such concerns as:

Should force be denied against children of certain ages?

Should the child’s conduct be a measure of the kind of force that may be imposed?

Should teachers and parents have an equal right to use force?

Three individual dissents to the majority opinion were given by Justices Louise Arbour, Marie Deschamps, and Binnie (the latter, as noted above, dissenting in part).

The Majority Decision on Vagueness

The primary issue considered by the Court majority in the Foundation case was whether section 43 was “vague or overbroad.” Specifically, the Foundation argued that section 43 permitted violation of children’s liberty and security by allowing parents and teachers the right to physically discipline them — so long as that discipline was deemed reasonable under the circumstances. The Foundation contended that discipline deemed reasonable under the circumstances is a vague concept. Thus, neither the accused nor the courts are able to have any firm fix on what is permitted and what is subject to criminal sanctions under section 43.

Chief Justice McLachlin, speaking for the Court majority, stated that a law need not provide certainty for it to be constitutional. It is enough for the law to set “an intelligible standard both for the citizens it governs and the officials who must enforce it.” That standard is achieved if the law provides fair warning to potential wrongdoers that they may be entering an area of risk. The chief justice stated:

A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed. Yet, whether a law is vague may also depend on the judicial decisions which have interpreted it. Such decisions can add specific meaning to the statute.

This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons. The doctrine of vagueness is directed generally at the evil of leaving basic policy matters to police officers, judges, and juries for resolution on an ad hoc [at the moment] and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Ad hoc discretionary decision making must be distinguished from appropriate judicial interpretation. Judicial decisions may properly add precision to a statute. Legislators can never foresee all the situations that may arise and, if they did, could not practically set them all out. It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.

It follows that section 43 of the Criminal Code will satisfy the constitutional requirement for precision if it delineates a risk zone for criminal sanction. This achieves the essential task of providing general guidance for citizens and law enforcement officers.

This case illustrates that the courts may not be able to spell out with any precision the law in any particular case. What the Supreme Court can do, and what it has done, is indicate a danger area — an area of “risk.” Those who approach it run the risk of crossing the line and having their actions deemed unconstitutional. Often the role of lawyers is to caution their clients that they run the risk of having their actions deemed unconstitutional and, with that declaration, being saddled by the Court with liability for the wrong done.

Creating a Risk Zone

To determine whether section 43 creates a risk zone, the Court majority considered the words of the provision in the context of their ordinary meaning, as well as court decisions interpreting those words.

The chief justice said that section 43 is precise as to who may access the provision: parents, teachers, and those standing in for parents in the sense of carrying all of their duties. In defence of section 43, the chief justice said that it requires that the force is used by way of correction. Further, that force must be reasonable under the circumstances. At this point, the chief justice turned to specific cases to provide further interpretation.

Correction and Education

The chief justice said of correction:

First, the person applying the force must have intended it to be for educative or corrective purposes.… Accordingly, section 43 cannot [allow] outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control, or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child.…

Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit.… A child may also be incapable of learning from the application of force because of disability or some other contextual factor. In these cases, force will not be “corrective” and will not fall within the sphere of immunity provided by section 43.

Reasonable under the Circumstances

Reasonableness, said the chief justice, is a concept long used in law in a number of different areas. It takes its meaning from particular facts and, in that regard, individuals have grown accustomed to measuring their conduct accordingly. The chief justice explained:

The law has long used reasonableness to delineate areas of risk, without incurring the dangers of vagueness. The law of negligence, that has blossomed in recent decades to govern private actions in nearly all spheres of human activity, is founded upon the presumption that individuals are capable of governing their conduct in accordance with the standard of what is reasonable.

But reasonableness as a guide to conduct is not confined to the law of negligence. The criminal law also relies on it. The Criminal Code [citing specific sections] expects that police officers will know what constitutes reasonable grounds for believing that an offence has been committed, such that an arrest can be made (section 495); that an individual will know what constitutes reasonable steps to obtain consent to sexual contact (section 273.2(b)); and that surgeons, in order to be exempted from criminal liability, will judge whether performing an operation is reasonable in all the circumstances of the case (section 45). These are merely a few examples; the criminal law is thick with the notion of reasonableness.

Again, while reasonableness is a standard that has been used to provide guidance, to signal approaching a zone of risk the Court emphasized that the factual and statutory context are important determiners as to meaning. The chief justice stated:

Reality is that the term “reasonable” gives varying degrees of guidance, depending upon the statutory and factual context. It does not insulate a law against a charge of vagueness. Nor, however, does it automatically mean that a law is void for vagueness. In each case, the question is whether the term, considered in light of principles of statutory interpretation and decided cases, delineates an area of risk and avoids the danger of arbitrary ad hoc law enforcement.

In the case of section 43, the chief justice said there were implicit limitations on the law that help shape its meaning, and she named the following:

Section 43 provides an exemption for the simple, non-consensual use of force. What it doesn’t permit is force that causes harm or raises a reasonable prospect of harm. This means that section 43 can be used only in the mildest forms of assault. The chief justice wrote:

Section 43 does not exempt from criminal sanction conduct that causes harm or raises a reasonable prospect of harm. It can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault. People must know that if their conduct raises an apprehension of bodily harm they cannot rely on section 43. Similarly, police officers and judges must know that the defence cannot be raised in such circumstances.

The line between mild discipline that does not cause harm and injuring a child in the name of discipline, the Court suggested, has been drawn in international treaties to which Canada is a party. As such, the Court cited cases requiring it to interpret Canadian statutes in a way that conforms with international treaties. The Court summarized those obligations as they relate to children: “Canada’s international commitments confirm that physical correction that either harms or degrades a child is unreasonable.”

The chief justice referred to specific treaties:

Canada is a party to the United Nations Convention on the Rights of the Child. Article 5 of the Convention requires state parties to respect the responsibilities, rights and duties of parents or … other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 19(1) requires the state party to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Finally, Art. 37(a) requires [those nations agreeing to the Convention] to ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” … This language is also found in the International Covenant on Civil and Political Rights … to which Canada is a party. Article 7 of the Covenant states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The preamble to the International Covenant on Civil and Political Rights makes it clear that its provisions apply to “all members of the human family.” From these international obligations, it follows that what is “reasonable under the circumstances” will seek to avoid harm to the child and will never include cruel, inhuman or degrading treatment.

Yet, the Court noted and emphasized that neither the Convention on the Rights of the Child nor the International Covenant on Civil and Political Rights explicitly require state parties to ban all corporal punishment of children.

A somewhat subtle approach has been taken in the interpretation of international treaties as applied to the corporal punishment of children by parents and teachers. Here the treaties have been read against section 7 of the Charter. In the process of monitoring compliance with the International Covenant on Civil and Political Rights, the Human Rights Committee of the United Nations has said that physical punishment of children in schools involves section 7’s prohibition of degrading treatment or punishment. The committee, Chief Justice McLachlin noted, has not expressed a similar opinion regarding parental use of mild corporal punishment.

Further, objective consideration of what is “reasonable under the circumstances” in the case of child discipline, the chief justice said, comes from expert evidence that gives rise to “social consensus.” Such an approach involves finding the meaning of “reasonable under the circumstances” without any subjective interpretation by judges or police. The chief justice wrote:

It is implicit in this technique that current social consensus on what is reasonable may be considered. It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable. Section 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making.

Conclusions Reached: Reasonable Under the Circumstances

The Court reached conclusions — based on interpretation and past decisions, as well as international treaties and “social consensus” — that were quite specific as to “reasonable under the circumstances” as set out in section 43. The chief justice stated these conclusions and they constitute the rules that now apply in the interpretation of section 43:

Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue.…

Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age.

Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour.

Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable. Many school boards forbid the use of corporal punishment, and some provinces and territories have legislatively prohibited its use by teachers…. This consensus is consistent with Canada’s international obligations, given the findings of the Human Rights Committee of the United Nations noted above. Section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances. Substantial societal consensus, supported by expert evidence and Canada’s treaty obligations, indicates that corporal punishment by teachers is unreasonable.

A Word about Precedent

The chief justice acknowledged a critique by Justice Arbour (see “The Opinion of Justice Arbour” that follows). There have been a number of varied, even conflicting, decisions coming from trial and appellate Canadian courts as to the meaning of “reasonable under the circumstances” under section 43. Still, the chief justice said that the new guidelines should help to establish some more specific and objective principles that should lead to uniformity. (Justice Arbour did not dispute the conclusions reached by the majority. Rather, she insisted that those conclusions should have been developed under section 7 of the Charter and, more appropriately, through Parliamentary enactment of a new law.) The chief justice stated:

It must be conceded at the outset that judicial decisions on section 43 in the past have sometimes been unclear and inconsistent, sending a muddled message as to what is and is not permitted. In many cases discussed by Arbour J., judges failed to acknowledge the [evolving] nature of the standard of reasonableness, and gave undue authority to outdated conceptions of reasonable correction.

On occasion, judges erroneously applied their own subjective views on what constitutes reasonable discipline — views as varied as different judges’ backgrounds. In addition, charges of assaultive discipline were seldom viewed as sufficiently serious to merit in-depth research and expert evidence or the appeals which might have permitted a unified national standard to emerge. However, the fact that a particular legislative term is open to varying interpretations by the courts is not fatal.… This case, and those that build on it, may permit a more uniform approach to “reasonable under the circumstances” than has prevailed in the past. Again, the issue is not whether section 43 has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus.…

Precedent itself is not always crystal clear, the chief justice seemed to say. But, at least “precedent” should set a guiding principle as to how the law should be construed.

Trumping the Best Interests
of the Child Principle

The law has overridden the principle of the best interests of the child. In the Foundation case, Chief Justice McLachlin, speaking for the Court, stated that the best interests of the child may be an important legal principle, but it can be overridden by other societal needs. The chief justice wrote:

The legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child,” while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.

YOU BE THE JUDGE

A Matter of Correction?

The Facts

Under section 43 of the Criminal Code, Janet Wye, age twenty-five, was charged with assaulting her six-year-old son, Jason. Ms. Wye had taken Jason and her three-year-old daughter, Lucy, to the neighbourhood supermarket. Time and again that day, Ms. Wye had quietly and firmly told Jason not to tease his sister. And, time and again, Jason, who understood what he had been told, had proceeded to tease Lucy by pulling her hair and laughing at the result, namely, Lucy in tears with his mother visibly upset.

At the supermarket, Jason’s teasing became more forceful. He not only pulled his sister’s hair, but he yanked some of it out by the roots. Lucy screamed. Jason laughed, and he continued laughing — even when his mother screamed at him. Purposefully, Jason started teasing Lucy. He yanked as hard as he could at some of her long hair.

At that point, his visibly angry mother energetically shook Jason. She said to him, “How would you like it if someone pulled your hair?” She then reached down, took a small clump of Jason’s hair, and pulled it out by the roots. Some blood flowed from the wound. Jason immediately stopped his teasing. Shocked, he looked at his mother and started to cry.

The store manager called the police. Ms. Wye was arrested and charged with assaulting Jason in violation of the Criminal Code. A Children’s Aid worker took charge of the children.

The Issue

Was the force Ms. Wye used against Jason intended to “correct” his behaviour and, as such, was it a defence against the assault charged?

Points to Consider

Section 43 of the Criminal Code prohibits intentional use of force against another without that person’s consent.

The force that Ms. Wye used against Jason was not minor. It was not what the law would term de minimis.

Section 43 does indeed provide a defence against assault of a child by a parent or schoolteacher if it is intended for correction and/or educational purpose.

A section 43 defence by a parent must demonstrate that the assault was reasonable under the circumstances.

The child assaulted (Jason) must be capable of benefiting from the discipline, that is, the assault.

Discussion

Ms. Wye’s defence would likely be rejected for two reasons: (1) the force she used was not imposed to educate or correct Jason’s behaviour, (2) under the circumstances, the Court would conclude that it was not “reasonable.”

To Correct and Educate

On the facts, Ms. Wye physically disciplined her child while she was angry. The chief justice, speaking for the Supreme Court of Canada in the Foundation case, stated that it is not possible for a person in a state of anger to administer physical discipline which, if it is used at all, must be for educative or corrective purposes. She wrote:

The person applying the force must have intended it to be for educative or corrective purposes.… Accordingly, section 43 cannot exculpate [allow] outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child….

Reasonable Under the Circumstances

An important element for a section 43 defence, the Court ruled, is that the physical discipline must be reasonable under the circumstances. The Foundation questioned whether this test has any objectivity, and whether what is “reasonable” is open to the trial judge’s interpretation. So it was that the Foundation cited The Queen v. K.(M.) (1992), 74 Canadian Criminal Cases, 3d series 108. There, Justice O’Sullivan of the Manitoba Court of Appeal wrote, “The discipline administered to the boy in question in these proceedings [a kick in the rear] was mild indeed compared to the discipline I received in my home.”

Reasonableness, said Chief Justice McLachlin in the Foundation case, is a broad standard. But it does have meaning. Trial judges are not free to do whatever they want. There are limits placed on its application. The chief justice wrote:

The reality is that the term reasonable gives varying degrees of guidance, depending upon the statutory and factual context. [In itself, the term] does not insulate a law against a charge of vagueness. Nor, however, does it automatically mean that a law is void for vagueness. In each case, the question is whether the term, considered in light of principles of statutory interpretation and decided cases, delineates an area of risk and avoids the danger of arbitrary ad hoc [individual] law enforcement.

Is section 43’s reliance on reasonableness, considered in this way, unconstitutionally vague? Does it indicate what conduct risks criminal sanction and provide a principled basis for enforcement? While the words on their face are broad, a number of implicit limitations add precision.

The first limitation arises from the behaviour for which section 43 provides an exemption, simple non-consensual application of force. Section 43 does not exempt from criminal sanction conduct that causes harm or raises a reasonable prospect of harm. It can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault. People must know that if their conduct raises an apprehension of bodily harm they cannot rely on section 43. Similarly, police officers and judges must know that the defence cannot be raised in such circumstances.

Applied to Ms. Wye, her section 43 defence would likely fail. She struck in anger, and this probably foreclosed an intent to be corrective. Yet more to the point, she caused bodily harm to Jason. She yanked out his hair and caused him to bleed.

A Case of Serious Misbehaviour

Penny Franklin, age twelve, understood the difference between right and wrong. However, she was the leader of a gang of seven girls who called themselves the Holy Terrors. The object of the gang was to intimidate neighbourhood girls who were the same age or younger.

Penny’s parents believed in the philosophy of “spare the rod and spoil the child.” Learning of their daughter’s involvement with the gang, they cautioned her in the strongest possible terms to stop, and they spoke with school authorities — all to no avail.

One day, Mr. and Mrs. Franklin became aware of a particularly vicious attack by the Holy Terrors on eleven-year-old Zoë. No one struck Zoë, but for more than an hour she was swarmed by the Holy Terrors and intimidated. To Penny’s parents, particularly in view of the warning they had given their daughter, this was extremely serious misbehaviour. They felt strongly that it was their duty as parents to take corrective action. Mrs. Franklin took responsibility for meting out discipline. She strapped her daughter, giving her ten strong lashes on her bottom. The punishment left bruises on the girl.

Penny’s serious misbehaviour, however, is not a factor in determining whether her mother’s use of the strap was justified. Corporal punishment, said Chief Justice McLachlin for the Court majority in the Foundation case, should be used only to correct, never to punish. She wrote, “It is improper to … focus on the gravity of a child’s wrongdoing, which invites a punitive rather than corrective focus.… The focus under section 43 is on the correction of the child, not on the gravity of the precipitating event. Obviously, force employed in the absence of any behaviour requiring correction by definition cannot be corrective.” Further, discipline cannot be inflicted if it is likely to cause harm to the child.

CHALLENGE QUESTION

Setting Standards

Q: Will the “rules” set by the Supreme Court in the Foundation case remain fixed? For example, if it is wrong to spank a teenager today, might it become acceptable at another time?

The Court ruled that objective standards should always apply. Further, central to such objective standards is that corporal discipline should always be directed toward correction and/or education.

Trial judges must decide what is reasonable under the circumstances and at the same time recognize that circumstances may change over time. The Court suggested that an approach might be to look to expert evidence, though it did not expressly state that it might come from child psychologists or social workers. Chief Justice McLachlin stated:

Determining what is reasonable under the circumstances in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline. The criminal law often uses the concept of reasonableness to accommodate evolving mores and avoid successive “fine-tuning” amendments. It is implicit in this technique that current social consensus on what is reasonable may be considered.

It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable. Section 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making.

Justice Binnie’s Partial Dissent
in the Foundation Case

Justice Binnie agreed with the Court’s result as applied to parents and those standing in for parents. He had this to say about the proper role of the appellate courts in “calibrating” the application of rules to changing societal values:

Providing a defence to a criminal prosecution in the circumstances stated in section 43 is rationally connected to the objective of limiting the intrusion of the Criminal Code into family life.

As to minimal impairment, the wording of section 43 not only permits calibration of the immunity to different circumstances and children of different ages, but it allows for adjustment over time. In this respect, the Crown’s expert, Nicholas Bala, stated:

In the past, the use of belts, straps, rulers, sticks and other similar objects to deliver a punishment was commonly accepted, both by society and the courts, as reasonable in the chastisement of children. Today, most courts hold that, in most circumstances, the use of these objects is excessive. As well, previously, courts have considered punishment causing temporary pain lasting a few days, but without permanent injury, to be reasonable. Today’s courts scrutinize the level of pain, bruises, red marks and other signs of temporary harm carefully. In most cases, when they find that a child has suffered some injury, the teacher, parent or person taking the place of a parent is convicted of assault.

In the past, as Arbour J. demonstrates in her reasons, the elasticity of section 43 has led to acquittals in some quite shocking circumstances. However, in my view, it is the function of the appellate courts to rein in overly elastic interpretations that undermine the limited purpose of section 43, which is what the interpretive guidance offered by the chief justice is designed to do, provided the courts stop short of judicial amendment [of the statutory law].

The Media’s Response

The Globe and Mail commented on the Court’s decision in the Foundation case:

In upholding the legality of mild spankings yesterday, the Supreme Court of Canada recognized that the protection of children also requires protection of their families from the State. But that was the status quo — and some judges have in the past made questionable decisions that left children unprotected from abuse. (A Manitoba appeal court judge once allowed a kick in the rear, saying that he had suffered worse as a child.) So the court wisely drew a line between the mild spanking and the abusive one.

It is not easy to define the boundary between reasonable force to correct a child’s behaviour and abusive force that harms a child. The 7-2 judgment will not, alas, provide perfect protection for all children. Many instances of corporal punishment will remain at the borderline of what is legal, and of what most Canadians would consider tolerable. Most people have seen assaultive behaviour — a twist to the wrist or the cartilage of an ear, a slap to the back of the neck, a series of hard blows to a small child’s back — engaged in by other people in public, or perhaps by themselves at home after a sleepless night. It will remain for the lower courts to define the boundary more precisely, using the Supreme Court’s guidelines. [Here follows a summary of the Court’s guidelines.]

No one should read the [Court’s] judgment as a kind of official sanction for hitting children. Rather, the ruling recognizes what Chief Justice Beverley McLachlin called the “blunt hand of the criminal law” should not be brought down on families, except as a last resort, lest it harm the children in doing so.

A couple of generations ago, it was not uncommon for parents to use belts, straps or sticks on their children. A generation ago, it was permissible to strike children hard enough to leave them in pain for a few days; that is no longer permitted. Yesterday’s ruling, by narrowing the definition of reasonable force, marks a small but important step in society’s advance (“Spanking Is Permitted, but Mind the New Rules” 2004).

Another Point of View

Globe and Mail columnist Margaret Wente also commented on the Court’s decision regarding spanking:

Anti-spankers pretend that little children are rational beings, like the rest of us, and that disciplinary measures should be designed to make them “think.” Actually, little children are more like puppies, most of which are innately loving and aim to please, but need to internalize the norms of civilized conduct. Brute force is a last resort, but sometimes a smack with a rolled-up newspaper wouldn’t hurt. In fact, the principles of training dogs and training children are more or less the same, and it strikes me that if parents were required to attend dog-training courses, we’d all be a whole lot better off. There’s nothing worse than being around a dog that’s got its owner cowed, unless it’s being around an eight-year-old who likes to scream, “You’re not the boss of me!”

In a culture that has elevated violence against children to the greatest of all human evils (and redefined violence to include just about everything), the harm that spanking does has been ridiculously exaggerated. [Some of] the happiest and most grounded kids I’ve ever met belong to families that believe in physical discipline. I know equally splendid kids whose parents never laid a finger on them. It’s not the spanks or lack of them that matter. It’s the clear expectations, the consistency, the ability to set boundaries, the time their parents spend with them, and the steady love. The best parents I know are the ones who spend great amounts of time attending — really attending — to their children. They put in the mileage, and there’s no substitute for it (Wente 2004).

CHALLENGE QUESTION

Are Children Equal
Before and Under the Law?

Q: Does section 43 of the Criminal Code offend section 15 of the Charter?

Here is the context for this question:

The Charter is part of the Constitution of Canada, and as such it is the supreme law of the land. No statute can stand if it offends the Charter.

Section 15(1) of the Charter provides for equality rights with these words: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”

A violation of section 15 of the Charter can be excused if it meets the terms of section 1 of the Charter, which provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Foundation argued that section 43 decriminalizes the offence of assault against children. As such, a message is sent that a child is less worthy of recognition or value as a human being, or as a member of Canadian society.

Chief Justice McLachlin, for the Court, rejected the argument. There is a difference between the Charter requirement of equal treatment and identical treatment. That Parliament chose section 43 reflects its desire to protect the need of children for safety and security “in an age-appropriate manner.” She wrote:

The difficulty with this argument [that of the Foundation], as we shall see, is that it equates equal treatment with identical treatment, a proposition which our jurisprudence has consistently rejected. In fact, declining to bring the blunt hand of the criminal law down on minor disciplinary contacts … reflects the resultant impact this would have on the interests of the child and on family and school relationships. Parliament’s choice not to criminalize this conduct does not devalue or discriminate against children, but responds to the reality of their lives by addressing their need for safety and security in an age-appropriate manner….

Children need to be protected from abusive treatment. They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm. In so acting, the government responds to the critical need of all children for a safe environment. Yet this is not the only need of children. Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.

Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law.

The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children; in this way, by decriminalizing only minimal force of transient or trivial impact, section 43 is sensitive to children’s need for a safe environment. But section 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. Introducing the criminal law into children’s families and educational environments in such circumstances would harm children more than help them. So Parliament has decided not to do so, preferring the approach of educating parents against physical discipline.

This decision, far from ignoring the reality of children’s lives, is grounded in their lived experience. The criminal law is the most powerful tool at Parliament’s disposal. Yet it is a blunt instrument whose power can also be destructive of family and educational relationships.…

I am satisfied that a reasonable person acting on behalf of a child, apprised of the harms of criminalization that section 43 avoids, the presence of other governmental initiatives to reduce the use of corporal punishment, and the fact that abusive and harmful conduct is still prohibited by the criminal law, would not conclude that the child’s dignity has been offended in the manner contemplated by section 15(1).

Children often feel a sense of disempowerment and vulnerability; this reality must be considered when assessing the impact of section 43 on a child’s sense of dignity. Yet, as emphasized, the force permitted is limited and must be set against the reality of a child’s mother or father being charged and pulled into the criminal justice system, with its attendant rupture of the family setting, or a teacher being detained pending bail, with the inevitable harm to the child’s crucial educative setting. Section 43 is not arbitrarily demeaning. It does not discriminate. Rather, it is firmly grounded in the actual needs and circumstances of children. I conclude that section 43 does not offend section 15(1) of the Charter.

On the point denying the application of section 15 of the Charter, Chief Justice McLachlin spoke for a majority of six. Justices Binnie and Deschamps dissented; they would have allowed children the protection of section 15. Justice Binnie would have permitted the conclusion reached by the Court majority, but only after the Crown demonstrated justification for the restraint. Justice Deschamps would have afforded children protection and she would have rejected the government’s claim of justification. Justice Arbour saw no need to deal with section 15. Her reason: section 43 offended section 7 of the Charter. We will briefly set out the reasoning of Justices Binnie and Deschamps.

Justice Binnie’s Partial Dissent on Section 43

Quoting the majority opinion, Justice Binnie said: “It may be that introducing the criminal law into children’s families and educational environments [in the context of section 43] would harm children more than help them.” But, he stated, this is a reason that goes toward justifying the action of government within the meaning of section 15 of the Charter. It does not speak to whether children are protected within the meaning of section 15.

Justice Binnie then addressed himself to whether corrective force by parents might be justified. He concluded, “To deny children the ability to have their parents, or persons standing in their parents’ place, to be successfully prosecuted for reasonable corrective force under the Criminal Code does not leave them without effective recourse. It just helps to keep the family out of the criminal courts. In my view, section 43 in relation to parents and persons standing in their place is justified on this basis.”

However, Justice Binnie could not find the same justification as applied to teachers. He wrote:

The question is whether the undoubted need to keep order in schools justifies the section 43 exemption of teachers from the assault provisions of the Criminal Code.

The Law Reform Commission of Canada recommended the repeal of the section 43 defence for school teachers, stating that the ultimate sanction should be the removal of a child from school, not corporal punishment: Law Reform Commission of Canada, Working Paper 38, Assault (1984), at p. 44. A number of countries have abolished or modified similar legislative immunities for teachers: see, e.g., section 47 of the British Education (No. 2) Act 1986 (U.K.), 1986, c. 61; section 59 of the New Zealand Crimes Act 1961 (N.Z.), 1961/43; and s. 139A of the New Zealand Education Act 1989 (N.Z.), 1989/80.

While I accept that order in the schools is a legitimate objective, I do not think that giving non-family members an immunity for the criminal assault of children “by way of correction” is a reasonable or proportionate legislative response to that problem. The attempt to save the constitutionality of section 43 by rewriting it to distinguish between parents and teachers and carving out school order from the more general subject matter of “correction” is, in my view, a job for Parliament. In short, section 43 does not minimally impair the child’s equality right, and is not a proportionate response to the problem of order in the schools.

The Dissent of Justice Deschamps

Justice Deschamps said that section 43 should be interpreted according to the intent of the Parliament at the time of the law’s enactment. As such, the constraints that the majority imposed on section 43 go too far. The Court majority, Justice Deschamps said, has inserted its views as to what the law should be rather than the clear intent of the Parliament. In this regard, she cited and approved the reasoning of Justice Arbour, which is set out (below) in “The Opinion of Justice Arbour.”

Justice Deschamps then proceeded to discuss the application of section 15 of the Charter to children, who, she said, have long been recognized as a vulnerable group in need of protection. She wrote:

Children as a group face pre-existing disadvantage in our society. They have been recognized as a vulnerable group time and again by legislatures and courts. Historically, their vulnerability was entrenched by the traditional legal treatment of children as the property or chattel of their parents or guardians. Fortunately, this attitude has changed in modern times with a recognition that children, as individuals, have rights, including the right to have their security and safety protected by their parents, families and society at large. This recognition is illustrated by several decisions of this Court (see, e.g., B. (R.) v. Children’s Aid Society of Metropolitan Toronto, (1995) 1 Supreme Court of Canada Reports 315; Winnipeg Child and Family Services v. K.L.W., (2000) 2 Supreme Court of Canada Reports 519); … by government policy and laws (for example, specific criminal law protections, family law reforms, and child protection services), and by international legal authorities.…

However, by permitting incursions on children’s bodies by their parents or teachers, section 43 appears to be a throwback to old notions of children as property. Section 43 reinforces and compounds children’s vulnerability and disadvantage by withdrawing the protection of the criminal law. Moreover, because the accused is the very person most often charged with the control and trusteeship of the child, being deprived of the legal protection to which everyone else is presumptively entitled exacerbates the already vulnerable position of children. The entitlement to protection is derived by virtue of our status as persons and the status of children as persons deserves equal recognition.…

[Section] 43 as it currently stands permits a broader range of assaults to be justified by its terms. There is a general consensus among experts that the only benefit of mild to moderate uses of force, such as spanking, is short-term compliance. Anything more serious is not only not conducive to furthering the education of children, but also potentially harmful to their development and health.… It cannot be seriously argued that children need corporal punishment to grow and learn. Indeed, their capacities and circumstances would generally point in the opposite direction — that they can learn through reason and example while feeling secure in their physical safety and bodily integrity.

By condoning assaults on children by their parents or teachers, section 43 perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided.… Section 43 creates a category of “second-class citizens” that must suffer a “consequent attenuation of [their] right to dignity and physical security.” Far from corresponding to the actual needs and circumstances of children, section 43 compounds the pre-existing disadvantage of children as a vulnerable and often-powerless group whose access to legal redress is already restricted.

The Charter infringement in this case is discriminatory at a very direct and basic level. It clearly impairs the equal rights of children to bodily integrity and security in a much more intrusive way than necessary to achieve a valid legislative objective. The provincial and policy mechanisms available do not change this effect.

The Opinion of Justice Arbour

Justice Arbour came to a conclusion, in her words, “not very different from that reached by the chief justice.” The majority reached their conclusions as to the limitations of corrective force in section 43 because they reflected what the statute, itself, requires. Justice Arbour reached her conclusions as to these limitations because they reflect what the Charter, as part of the supreme law of the land, requires. For that reason, because section 43 offends the Charter, Justice Arbour would have set aside the statute. To do so, she said, does not leave either parents or teachers defenceless in appropriate cases. She pointed to two common law defences, which are described below in “You Be the Judge: A Case of Necessity?” and “Still Another Common Law Defence: De Minimis?”

Further, and this is central to Justice Arbour’s argument, it should be Parliament that brings its laws into conformity with the Charter. It is not the Court’s role to reshape the law to meet the requirements of the Charter.

Section 43 of the Criminal Code

Section 43 has long been part of the criminal law. As such, Justice Arbour said, it stood for values allowing “reasonable” force on children. She stated:

That section 43 is rooted in an era where deploying “reasonable” violence was an accepted technique in the maintenance of hierarchies in the family and in society is of little doubt. Children remain the only group of citizens who are deprived of the protection of the criminal law in relation to the use of force.…

Whether such policy ought to be acceptable today with respect to children is the subject of ongoing debate in society about the appropriateness and effectiveness of the use of corporal punishment by way of correction. We have not been asked to take a side in that debate. However, the issue is also the subject of the constitutional challenge brought before us by the Foundation. This legal challenge is what we must address.

Section 7 of the Charter

To Justice Arbour, it is section 7 of the Charter that must be examined to determine the constitutionality of section 43. Section 7 provides: “Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The first part of the test under section 7 is whether section 43 affects the “security of the person” when the person is a child. Justice Arbour said there is no doubt on this point. The criminal law is an important means by which the State protects the liberty and security of its citizens. The operation of section 43 withdraws that security, which applies to parents and teachers, from children.

This brought Justice Arbour to the second part of the analysis of section 7: Has the security of children been denied by section 43 in accordance with the principles of fundamental justice? In this regard, she accepted the argument of the Foundation that “reasonable under the circumstances” is a standard too vague to allow for clear guidelines; judges could do as they pleased. And, in the view of Justice Arbour, that is precisely what many courts have done. There were no objective case guides (precedents).

It may be, Justice Arbour said, that “reasonableness” in other contexts does permit objective standards. For example, there is something to measure the standard of reasonableness against if the question relates to self-defence. In the face of a defined threat, what was necessary to defend oneself? But, the same may not be said of “reasonableness” applied to the physical discipline of children. Justice Arbour wrote:

This is not so in the case of corporal punishment of children, where there is no built-in [relationship] between physical punishment and bad behaviour that can be used to assess proportionality. Indeed, the chief justice concludes … that the gravity of the child’s conduct is not a “relevant contextual consideration” as it invites a punitive, rather than a corrective focus.

Corporal punishment is a controversial social issue. Conceptions of what is “reasonable” in terms of the discipline of children, whether physical or otherwise, vary widely, and often [involve] cultural and religious beliefs as well as political and ethical ones. Such conceptions are intertwined with how other controversial issues are understood, including the relationship between the State and the family and the relationship between the rights of the parent and the rights of the child.

Whether a person considers an instance of child corporal punishment “reasonable” may depend in large part on his or her own parenting style and experiences. While it may work well in other contexts, in this one the term “reasonable force” has proven not to be a workable standard. Lack of clarity is particularly problematic here because the rights of children are engaged….

Justice Arbour stated that because reasonable under the circumstances is vague, neither parents nor teachers understand the zone of risk, the area in which they might be charged under the criminal law: “A standardless sweep does not become acceptable simply because it results from the whims of judges and justices of the peace rather than the whims of law enforcement officials. Cloaking whims in judicial robes [is] not sufficient to satisfy the principles of fundamental justice.”

Justice Arbour further ruled, that because section 43 is “standardless” — that is, too vague — it cannot meet that portion of section 1 of the Charter, that might otherwise allow a violation of section 7 to stand.

International Treaties and Canada: Protection of the Child

Section 43, Justice Arbour said, had to be measured against the requirements of the Charter, and especially section 7 of that document. After all, the Charter, as the highest law in Canada, sets standards that must be met by statutes such as the Criminal Code.

A source for understanding the rights of children, as they relate to principles of fundamental justice within the meaning of section 7, are Canada’s international obligations found in treaties. There, said Justice Arbour, Canada not only has obligated itself to the United Nations Convention on the Rights of the Child, but Canada is also committed to take part in the Committee on the Rights of the Child, set up under the agreement. That committee, whose comments are not binding, said of section 43 in a summary given by Justice Arbour:

It is notable that the Committee has not recommended clarifying these laws [section 43] so much as abolishing them entirely.… The Committee’s Concluding Observations on Canada’s First Report are illustrative:

Penal legislation allowing corporal punishment of children by parents, in schools and in institutions where children may be placed [should be considered for review]. In this regard … physical punishment of children in families [should] be prohibited. In connection with the child’s right to physical integrity … and in the light of the best interests of the child, … the possibility of introducing new legislation and follow-up mechanisms to prevent violence within the family [should be considered], and … educational campaigns [should] be launched with a view to changing attitudes in society on the use of physical punishment in the family and fostering the acceptance of its legal prohibition. Committee on the Rights of the Child, Report adopted by the Committee at its 233rd meeting on 9 June 1995, Ninth Session, CRC/C/43, at para. 93.

In its most recent Concluding Observations, the Committee expressed “deep concern” that Canada had taken “no action to remove section 43 of the Criminal Code” and recommended the adoption of legislation to remove the existing authorization of the use of “reasonable force” in disciplining children and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed. (Committee on the Rights of the Child 2003, paras. 32–33)

YOU BE THE JUDGE

A Case of Necessity?

The Facts

Simon Just has been an elementary school teacher for fifteen years. He is recognized by school administrators and students as fair-minded but strict. Rules of conduct, he has frequently said, are meant to be followed. “If they are not taught here and accepted, the likelihood is that they will not be accepted later on in a child’s education.”

Simon Just is an athletic person with a black belt in karate.

One day, he heard screaming in the school hall. Two ten-year-old boys were in the midst of a fight. Both had drawn knives and they were slashing at each other. Both were bleeding.

Just rushed over. He knew both boys. He had been their teacher for three years, and he considered them “hot heads.” They had little capacity to manage their frustrations. With two swift karate chops, Just not only disabled both boys, but knocked them out. Both were rushed to the hospital. They suffered from concussions and dislocated shoulders.

The police laid charges of assault against Just, who admitted that shouting at the boys during the fight might have ended the confrontation. But he felt that this was a chance that he simply could not take. In his view, the boys had been dangerous, capable of seriously wounding him and each other with their knives.

The Issue

Did the fight present an emergency situation that justified Just’s assault?

Points to Consider

Section 43 of the Criminal Code provides: “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if force does not exceed what is reasonable under the circumstances.”

In the context of section 43, teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but force cannot be used merely as corporal punishment.

Section 8(3) of the Criminal Code allows for the common law defence of necessity. This defence recognizes that there are emergency situations where the law does not hold people accountable if they act in self-defence or to save others.

In effect, the defence of necessity is an excuse, not a justification for violating the law.

Discussion

If the reasoning of Justice Arbour in her Foundation case dissent was accepted, Simon Just might have a valid defence within the meaning of section 8(3) of the Criminal Code. He acted to protect children from seriously wounding or possibly killing each other. They were slashing at each other with knives. Both were bleeding. They were known in the school as “hot heads.” Indeed, the fight took place in the school where Just was a teacher. He saw the fight and acted instantly.

Was there a reasonable alternative to the assault, to the use of karate which caused injury? If such an alternative existed, then, under the defence of necessity, he was obligated to use it. Just seemed aware that the law did not approve of the use of force. His alternative was to yell at the boys to stop fighting. However, Just felt that he could not take the chance that the boys would not stop fighting on his command. He believed he had to act quickly to end the fight.

Once Just put before the trial court sufficient evidence to raise the issue of necessity, then the burden was on the Crown to show that the defence was invalid beyond a reasonable doubt.

More on Justice Arbour’s Reasoning

The Court majority in the Foundation case did not discuss the necessity defence. The issue before the Court, after all, was the Charter challenge to section 43 of the Criminal Code. Justice Arbour took a broader view. She did so in the context of her conclusion that the Charter required that section 43 be set aside.

The defence of necessity, she emphasized, is a long-standing common law rule incorporated into section 8(3) of the Criminal Code and recognized by the Court in Perka v. The Queen, [1984] 2 Supreme Court of Canada Reports 232. Justice Arbour wrote:

I see no reason why, if the above requirements are met, the defence of necessity would not be available to parents and teachers should they intervene to protect children from themselves or others. Other authors have also proposed the use of necessity for parents and teachers should the section 43 defence be abolished. (See, Anne McGillivray, “He’ll Learn It on His Body: Disciplining Childhood in Canadian Law,” International Journal of Children’s Rights 193, at p. 240.)

In The Queen v. Morris (1981), 61 Canadian Criminal Cases (2d series) 163 (Alberta Queen’s Bench), the defence of necessity succeeded in absolving a husband on a charge of common assault of his wife. The husband had restrained his inebriated wife when she tried to jump out of their truck. The husband honestly and reasonably believed that the intervention was necessary. The judge noted, at p. 166, that: “To have allowed his wife to get out of the truck to walk on a dark road in an intoxicated condition would have shown wanton or reckless disregard for her life or safety and could have constituted criminal negligence on his part….”

If a parent were to forcibly restrain a child in order to ensure that the child complied with a doctor’s instructions to receive a needle, section 43 would be of no assistance to excuse the use of restraint, but the parent would, in my view, have the common law defence of necessity available to him or her should a charge of assault be pursued. The common law defence of necessity has always been available to parents in appropriate circumstances and would continue to be available if the section 43 defence were struck down.

Common sense under a test of reasonableness seems to be the direction taken by Justice Arbour. For example, parents will be seen as justified in restraining an unruly child who insists on crossing the street on a red light. The parent is acting largely for the purpose of the safety of the child.

Still Another Common Law Defence:
De Minimis?

Police and prosecutors, in effect, screen all criminal charges. They can and do determine, from the start, which charges will proceed to court. Challenging their discretion not to press a charge is seldom possible. Yet, suppose a charge is brought that the accused believes is trivial. Can a defence be mounted on that basis alone?

Justice Arbour argued that in situations where there has been a “technical” violation of the law against assault, a court is free to dismiss the case (to stay proceedings) on the ground that the breach was only “trivial.” In this regard, Justice Arbour cited the legal axiom in Latin: de minimis non curat lex — or, loosely translated, “The law does not concern itself with trifles.”

Raising the de Minimis Defence

According to Justice Arbour, the cases supporting the de minimis rule in criminal cases are “unsatisfactory.” Yet the fact remains that it has been used a number of times by Canadian trial courts — especially in drug cases involving “a tiny quantity of the proscribed drug” and theft cases where the “value of the stolen property is very low.” Justice Arbour wrote:

Generally, the justifications for a de minimis excuse are: (1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases.… In part, the theory is based on a notion that the evil to be prevented by the offence section has not actually occurred. This is consistent with the dual fundamental principle of criminal justice that there is no culpability for harmless and blameless conduct….

The chief justice, speaking for the Court majority in the Foundation case, saw a role for the de minimis rule, although one that had its own problems of ambiguity. But it is one that does not infringe on the Court’s basic holding. She stated:

Finally, Arbour J. argues that parents who face criminal charges as a result of corrective force will be able to rely on the defences of necessity and de minimis. The defence of necessity, I agree, is available, but only in situations where corrective force is not in issue, like saving a child from imminent danger. As for the defence of de minimis, it is equally or more vague and difficult in application than the reasonableness defence offered by section 43.

Cruel and Unusual Treatment or Punishment?

Question: Does section 43 of the Criminal Code offend section 12 of the Charter, which guarantees the “right not to be subject to any cruel and unusual treatment or punishment”? The Foundation argued that such a violation occurs whenever parents or teachers use physical force against children of whatever age.

Answer: None of the Court Justices saw any merit to the Foundation argument. Chief Justice McLachlin, speaking for the Court majority stated that section 12 of the Charter relates to action by the State.

Parents, as such, are not agents of the State. Thus, any action on their part against children cannot be seen as action by the State. Section 12 of the Charter does not apply to the parents.

Teachers, especially, those employed by government, may be seen as employees of the State. However, the chief justice stated that section 43, as it has been interpreted and limited by the Court, cannot rise to the level of cruel and unusual punishment.

The chief justice wrote:

The conduct permitted by section 43 does not in any event rise to the level of being “cruel and unusual,” or so excessive as to outrage standards of decency.… Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency. Corrective force that might rise to the level of “cruel and unusual” remains subject to criminal prosecution.

A Poll on Spanking

Quebecers are far less likely than other Canadians to spank or slap their children. This was a finding of a Globe and Mail/CTV poll of Canadian parents conducted by Ipsos-Reid and published in a Globe and Mail article by Erin Anderssen and Anne McIlroy titled “Quebec Distinct in Nursery Too, Poll Finds” (April 10, 2004).

Nationally, 42 percent of those polled agreed with the statement that they had spanked or slapped their children for disciplinary reasons. Regionally, the results were as follows:

British Columbia 52%

Alberta 60%

Saskatchewan/Manitoba 46%

Ontario 45%

Quebec 22%

Atlantic provinces 42%

The age of the children did not seem to be a factor. Results were consistent among parents of children under five, aged six to eleven, and those twelve and over.

Nationally, the survey found that 60 percent of Canadian parents agreed with the statement that politicians and the courts are too involved in making decisions about how they parent. Regionally, the results were as follows:

British Columbia 61%

Alberta 74%

Saskatchewan/Manitoba 84%

Ontario 61%

Quebec 51%

Atlantic provinces 48%

The survey also found that most Canadian parents seem satisfied with the job they are doing as parents. A strong majority said they were doing as well (50 percent) or better (43 percent) at raising their children than their own parents did. More than 60 percent said they are more permissive with their children than their parents were with them.

The poll is considered accurate to within 3.9 percentage points, nineteen times out of twenty, although the margin of error is larger in the regional results.

References and Further Reading

* Cited by the Supreme Court of Canada

Anderssen, Erin, and Anne McIlroy. 2004. “Quebec Distinct in Nursery Too, Poll Finds.” Globe and Mail, April 10.

Bernard, Claire. 1998. Corporal Punishment as a Means of Correcting Children. Quebec: Commission des droits de la personne et des droits de la jeunesse.*

Canada. Department of Justice.1994. Reforming the General Part of the Criminal Code: A Consultation Paper. Ottawa.*

Canadian Bar Association. Criminal Recodification Task Force. 1992. Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada. Ottawa.*

Canadian Committee on Corrections. 1969. Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer.*

Committee on the Rights of the Child. 2003. Consideration of Reports Submitted by State Parties Under Article 40 of the Convention, Thirty-fourth Session, CRC/C/15/Add. 215.

Department of Justice. Reforming the General Part of the Criminal Code: A Consultation Paper. Ottawa, 1994.*

Edwards, Steven. 2003. “Slap Spankers with Criminal Code, UN Advises Canada.” National Post, October 8.

Greene, Sharon D. 1998. “The Unconstitutionality of Section 43 of the Criminal Code: Children’s Right to Be Protected from Physical Assault, Part 1.” Criminal Law Quarterly 41, no. 3: 288–317.*

Law Reform Commission of Canada. 1984. Working Paper 38, Assault. Ottawa.*

McGillivray, Anne. 1997. “He’ll Learn It on His Body: Disciplining Childhood in Canadian Law.” International Journal of Children’s Rights 5, no. 2: 193–242.*

Newell, Peter. 1989. Children Are People Too: The Case Against Physical Punishment. London: Bedford Square Press.*

Sharpe, Robert, Katherine E. Swinton, and Kent Roach. 2002. The Charter of Rights and Freedoms. 2nd ed. Toronto: Irwin Law.*

“Spanking Is Permitted, But Mind the New Rules.” 2004. Globe and Mail, January 3.

Stuart, Don. 2001. Canadian Criminal Law: A Treatise. 4th ed. Scarborough, ON: Carswell.*

Vallis, Mary. 2003. “No Country in the World Has Criminalized Spanking.” National Post, October 8.

Wente, Margaret. 2004. “Worse Things than Spanking.” Globe and Mail, January 3.

Chapter 2

Violent Young Offenders:
Setting and Applying Standards

There are two public policies concerning youth that may sometimes conflict: (1) acceptance of the young as vulnerable and (2) the need to protect the public from violent young offenders. The first policy focuses on rehabilitation of the young rather than imprisonment, favouring help rather than punishment and removal from society. The second policy centres on what is needed to protect society from the kind of behaviour seriously hurtful to others. In effect, society, as a matter of principle, would hold the young offender to the same general standard of responsibility as an adult.

In this chapter, the tension between these policies will be expressed in real-life scenarios involving violent young offenders whose victims are often other young people. We will see how Parliament has tried to set new approaches by marking certain crimes as more serious and thus, in Parliament’s view, requiring greater youth explanation — or for the accused youth to face the prospect of treatment as an adult criminal.

Drawing the lines between youth and adult treatment is no easy legislative task. It requires words and concepts that may sound like legalisms, such as the term presumptive offence. But such words are intended to help judges, especially youth court judges, establish guides that might be followed by other judges nationally — and thus avoid judges making individual law that reflect their values and bias. Recall the youth court judge quoted by Justice Arbour in the spanking case, cited in the last chapter. That judge justified the spanking by saying it was no more that he (the judge) had experienced as a youth.

Among the issues discussed in this chapter are:

What is a presumptive offence under the Youth Criminal Justice Act?

What is the purpose of a youth sentence under the criminal law?

Can young people be tried and sentenced as adults?

Under the criminal law, does the Charter of Rights and Freedoms apply to young persons?

What, if any, consent must police get before taking a statement from a young person charged with an offence?

Are the numbers of violent young offenders on the increase?

In a general sense, the actions of “violent young offenders” could include any violent behaviour of the young. It might involve a young person who steals a car or drives it in a way that endangers the safety of others, including police officers in pursuit. Applying the criminal law to such behaviour is another matter.

The criminal law can involve penalties. For adults found guilty of a criminal offence, statute may compel a court to impose fines (the proceeds of which go to the State, not necessarily to the victim) or minimum terms of imprisonment. Such penalties are not primarily directed toward rehabilitation. During the time that someone is incarcerated, society is protected from that person repeating violent behaviour. But sitting in a jail cell may do little to reform the felon.

Imprisonment in a free society affects basic rights. The common law — that is, law made by judges — has long treated such government action with great scrutiny. The courts have strictly interpreted any action by government that would deny the liberty of a person. Indeed, much of the Charter of Rights and Freedoms is directed toward protecting the individual who comes into contact with the criminal justice system, such as the police or the courts.

Over the years, an even more protective shield has been cast over young persons who have been brought into contact with the criminal law. This shield is made up of the common law and of statute that has long deemed young people as vulnerable — not being able to fully understand the difference between right and wrong, and make judgments as would adults. If young people cannot differentiate between right and wrong, should they be held liable for violating any particular criminal law?

For many years, there has been a separate system for ensuring fairness to the young person brought into contact with the criminal law. That system ranges from the contact of police with the youth in questioning and making an arrest, to an informal court trial conducted by special judges. If found guilty, a youth may be given a lesser sentence than an adult, and in that regard, a sentence that favours rehabilitation over punishment.

Youth crime and society’s perception of it have changed over the years. To some extent, that change, partly reflected in data and in dramatic incidents (some of which will be related), have influenced the enactment of new laws importantly including the Youth Criminal Justice Act (YCJA), Statutes of Canada 2002.

The YCJA, among other things, makes it possible for young persons (defined as between fourteen and eighteen) to be sentenced as adults for certain serious (and usually violent) crimes that the YCJA lists as presumptive offences. These include:

first-degree or second-degree murder;

attempt to commit murder;

manslaughter;

aggravated sexual assault; and

“an offence in the commission of which a young person causes or attempts to cause serious bodily harm.”

There is a significant difference between the length of imprisonment for an adult sentence, such as first-degree murder, and a youth sentence for the same crime. The YCJA leaves it to the youth court judge to decide whether a young person charged with a presumptive offence should be sentenced as an adult.

In this regard, the accused young person, under the YCJA, carries the burden of demonstrating to the youth court judge why an adult sentence should not be imposed. To do this, the young person must demonstrate that the youth sentence is of sufficient length to hold him/her accountable. Under the YCJA, the Crown does not have to show that the youth has lost entitlement to a youth sentence. In effect, the burden under the law shifts to the accused. This is called reverse onus.

These are among the issues raised by reverse onus and discussed in this chapter:

Does switching the burden of proof, that is, reverse onus, violate section 7 of the Charter of Rights and Freedoms? Does it deny a young person’s right not to be denied liberty “except in accordance with the principles of fundamental justice”?

Can young people who commit more serious crimes be held to more serious penalties?

May young persons subject to adult sentences also have their identities revealed?

A case that discusses and rules upon these issues is The Queen v. D.B., decided in a 5-4 decision by the Supreme Court of Canada on May 16, 2008. Justice Rosalie Abella wrote the majority decision, and Justice Marshall Rothstein the dissent.

Note, however, the incident giving rise to the offence occurred in 2003. The decision of the Supreme Court of Canada was handed down more than four years later. The course of justice often is ponderous. But more to the point in dealing with young offenders, the accused often begins an encounter with the criminal justice system as a youth and the sentence is delivered when that individual is an adult.

The Queen v. D.B.

At the time of the offence, D.B., the accused, was seventeen, a juvenile whose identity was protected under the Youth Criminal Justice Act (YCJA).

On December 13, 2003, D.B. went to a Hamilton, Ontario, shopping mall with some friends. Insults were exchanged with another group of young men, and two of them began to fight. Then D.B. turned to eighteen-year-old Jonathan Romero and said, “Me and you are going to fight right now.” Romero answered, “No.”

Romero’s arms were down at his sides when D.B. punched him on the right side of his neck and face. The punch was described as a “sucker punch.” Romero was neither prepared nor ready for it.

Romero fell to the ground from the force of the punch. D.B. did not let up. He jumped on top of Romero and hit him four times on the face and neck. Romero, having been knocked unconscious, was unable to defend himself. At that point, D.B. got up and fled back to the shopping mall.

Two of the other youths who had been fighting then stopped and, with three employees from a nearby store, tried to help Romero. An ambulance was called. When it arrived, Romero had no vital signs. He later died of his injuries.

Inside the mall, D.B. was heard to say, “You missed it. It was one punch. The guy’s not even fuckin’ moving.” He changed his clothes in a nearby restaurant and stowed the old clothes in a knapsack that he gave to someone else. He then went to a friend’s home, talking about the fight on the way. Later that evening, he went to a nightclub. He left with friends around closing time.

In the taxi, D.B. learned via a cell phone call that Romero had died. He stayed that night at a friend’s house. The next morning, police arrived at the friend’s home. D.B. attempted to flee out the back door but was caught and arrested.

D.B. pleaded guilty to manslaughter. He asked the trial judge for a youth sentence rather than that of an adult. The Crown opposed this request. However, the trial judge rejected the Crown’s request and imposed a youth sentence on D.B.

In an unreported decision, the trial judge stated:

You [D.B.] are to be the subject of an intensive rehabilitative custody and supervision order for a period of three years, and committed into a continuous period of intensive rehabilitative custody for a period of thirty months and serve the remainder of the sentence under conditional supervision in the community in accordance with section 105 of the Youth Criminal Justice Act.

In my view the maximum period of a youth sentence is necessary to achieve the desired ends of the rehabilitation programme, and for that reason I have not given credit for the one year period of pre-trial custody.

The trial court was aware of D.B.’s record through a predisposition assessment when it imposed the maximum period of a youth sentence. D.B. had frequently been involved in physical fights with his peers. And he had been suspended from school,

numerous times primarily for disruptive behaviour, verbal aggression, and disrespectful and intimidating conduct towards school staff. At the time of the offence, D.B. was bound by two separate probation orders arising out of prior convictions for possession of stolen property and robbery. Both offences involved threats and intimidation. While he was in custody awaiting disposition and sentence for manslaughter, D.B. was involved in several assaultive incidents with other inmates and staff members.

Rehabilitation versus Incarceration

The trial court judge found there was a basis for rehabilitation, which was a more desired alternative to incarceration. The trial judge stated that D.B.’s offence had to be considered “most serious” and that the act was “stupid, impulsive … borne of exuberance of youth and a misguided need for image before the offender’s peers” leading to a “tragic outcome.”

In response to the Crown’s concerns about D.B.’s maturity, character, background, and previous record, the trial judge felt that the intensive rehabilitative custody and supervision order provisions of the YCJA could address such areas. The trial judge concluded that “the need for rehabilitation of this offender and … the protection of society are better achieved through the intensive rehabilitation programme available through a youth sentence than through a more protracted period of incarceration which may result from the imposition of an adult sentence.”

Justice Abella, speaking for the majority in The Queen v. D.B., agreed. She stated:

There is no doubt that D.B. committed a serious offence with tragic consequences. It remains to determine whether the maximum allowable youth sentence he received from the trial judge should be set aside.

The purpose of sentencing under the YCJA is expressed as follows in section 38(1): “The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.”

D.B. had been previously convicted for possession of stolen property and robbery, both involving threats and intimidation, and was bound by two separate probation orders at the time of the offence. He had a history of mental health issues and behavioural problems in school.

He expressed remorse for his offence prior to sentencing and had made some positive steps while in pre-trial detention. The predisposition assessment recommended that he be treated in a therapeutic milieu, including a highly structured environment with integrated academic and social programming, and also concluded that societal as well as his personal needs could best be met by keeping D.B. in the juvenile justice correctional system rather than exposing him to more hardened criminals.

Justice Abella recited the detailed order of the trial judge set out above and concluded:

Section 72(1) of the YCJA sets out a number of matters to be considered by the youth justice court in reaching its opinion about whether a youth sentence would be sufficient. The reasons for the sentence of the trial judge reflect that he did so. His weighing of these matters to reach his opinion about sufficiency is a task that must attract deference in this court. The Crown does not suggest that he acted on an improper principle or considered extraneous matters. It essentially argues that he did the weighing wrongly. In my view, that is not enough to warrant the setting aside of his decision.

It was not a question of the trial court applying an incorrect principle of law or considering improper evidence. In that regard, Justice Abella noted that the trial judge had observed the witnesses and their demeanour, and had heard their testimony. The appellate court could look at the written record and ask whether there had been an error of law.

The major part of the decision of the Supreme Court of Canada in The Queen v. D.B. centres on the role of the Charter on the YCJA.

Youth or Adult Sentence: The Charter

As was noted before, the YCJA places the burden on the youth convicted of a presumptive offence — such as, in this matter, manslaughter — to justify why a youth sentence rather than an adult sentence should be imposed. Under the YCJA, the failure on the part of the convicted youth to carry this burden requires the trial judge to sentence that person as an adult. The judge is denied choice in the matter. This is how the Supreme Court of Canada summarized the relevant provision of the YCJA:

A young person may, however, under section 63(1) of the Act, “make an application for an order that he or she is not liable to an adult sentence.” The court is then required to consider the factors set out in section 72(1), namely: “the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant.”

The onus of satisfying the court about these matters is on the young person (section 72(2)). Consequently, if the young person is unable to persuade the court that a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour,” an adult sentence shall be imposed[emphasis added] (section 72(1)(b)). The default position, in other words, is an adult sentence.

Even the most severe youth sentence, according to the trial judge in the case of D.B., involves far less incarceration time than an adult sentence for the crime. Further, the youth sentence is directed toward rehabilitation, not punishment or protecting the public from a potentially violent offender by incarceration.

Counsel for D.B. argued that the presumptive provision of the YCJA was invalid because it violated section 7 of the Charter of Rights and Freedoms, which, as we stated before, is part of the Constitution of Canada. If a statute conflicts with the Charter, then to the extent of the conflict, the Charter sets the standard. This means that in any conflict with the Charter, either all or part of the statute will be set aside to the extent of that conflict. Both the trial court and the appellate court agreed with counsel for D.B. It was in such a context that the matter came before the Supreme Court of Canada.

The Supreme Court of Canada Decides:
The Majority Opinion

In this 5-4 decision, Justice Abella spoke for the Court majority. The Court first asked whether the presumptive provision of the YCJA was valid as measured by section 7 of the Charter, which provides, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The analysis of section 7 comes in two parts, Justice Abella said. First, was there a denial of life, liberty, or security of the person? And, second, if so, was that denial in accord with the principles of fundamental justice?

As to the first part of the analysis, there was no question and no objection stated by the Crown: the “reverse burden of proof” raises the possibility of imprisonment or the threat of imprisonment.

It was the second part of section 7 that required further discussion by Justice Abella: Did the reverse onus rule of the YCJA affect a principle of fundamental justice? Yes, said Justice Abella. Without a finding that the young are vulnerable, that they have a reduced capacity for moral judgment, and that this vulnerability constituted a principle of fundamental justice, section 7 of the Charter simply would not apply. Putting it differently, section 7 of the Charter can only apply if it affects a principle of fundamental justice.

The Court found that principle by looking at a number of sources. First, it looked to the YCJA itself. In section 3(1)(b), the YCJA makes clear what the courts have long recognized: “The criminal justice system for young persons must be separate from that of adults.” But why must there be this separation? Justice Abella stated:

Because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.

For example, Justice Abella wrote, there are numerous sentencing provisions in the YCJA to protect, presumptively, young persons from custody. Confronted with a crime committed by a young person, police must consider whether alternatives outside the court exist. Section 4 of the YCJA declares that such measures are “presumed to be adequate to hold a young person accountable … if the young person has committed a non-violent offence and has not previously been found guilty of an offence.”

Sections 38 and 39 of the YCJA also limit when a court may order custody. Before sentencing a young person to custody, the court must:

believe that no reasonable alternative or combination of alternatives exists (section 39(2));

know that the previous use of a non-custodial sentence does not preclude another non-custodial sentence (section 39(4));

recognize that custody must not be a substitute for appropriate child protection, mental health, or other social measures (section 39(5));

consider a pre-sentence report and any sentencing proposal made by the young person or the counsel present (section 39(6));

state reasons why a non-custodial sentence is inadequate (section 39(9));

consider all available sanctions other than custody first (section 38(2)(d)); and

ensure that the sentence is the least restrictive one capable of holding the young person accountable, bearing in mind the nature of the offence (section 38(2)(e)).

These provisions are core goals of the YCJA. But, it was not enough for Justice Abella to conclude that they reflected a principle of fundamental justice, namely that the young have heightened vulnerability and a reduced capacity for moral blameworthiness. She next looked to the history of the criminal law relating to the young. She referred to the English common law, academic writings, and the many laws controlling youth crime in Canada, dating from 1857. There she found an ongoing legislative recognition of diminished criminal responsibility on the part of young offenders. “Canada,” she said, “has consistently acknowledged the diminished responsibility and distinctive vulnerability of young persons in all of the YCJA’s statutory predecessors.” (See, “Challenge Question: A Matter of Principle.”)

Indeed, Justice Abella found additional support for the vulnerability of the child as a legal principle in international law. The preamble to the YCJA notes this point in its preamble. Canada became a signing party to the United Nations Convention on the Rights of the Child in 1992. Section 1 of that convention states:

[Those signing the convention] recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

That legal principle translated into a principle of fundamental justice, according to Justice Abella. She quoted from and relied upon past Supreme Court of Canada decisions as well as academic writings. For example, she noted the decision of former Chief Justice Antonio Lamer of the Supreme Court of Canada in Reference re Young Offenders Act (P.E.I.), [1991] 1 Supreme Court of Canada Reports 252, at p. 268, who said of the then controlling juvenile justice law, “What distinguishes this legislation from the Criminal Code is the fact that it creates a special regime for young persons. The essence of the young offenders legislation is a distinction based on age and on the diminished responsibility associated with this distinction.”

The result of this review of past Canadian legislation and the laws of other western nations led Justice Abella, speaking for the Court majority in The Queen v. D.B., to say that “a broad consensus reflecting society’s values and interests exists…. The principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.” And, Justice Abella added, this principle of fundamental justice is one that the courts can administer. It is manageable.

Applying the Principle of Fundamental Justice to “Reverse Onus”

Is the onus provision consistent with the principle of fundamental justice that young people are entitled to a presumption of diminished moral responsibility? As noted, ordinarily the Crown can seek an adult sentence for a young person over the age of fourteen who has been found guilty of certain indictable offences.

The young person must be notified of the Crown’s intention and, once notified, can elect to be tried by a youth court judge or, in the Ontario Superior Court of Justice, by a judge alone or with a jury following a preliminary inquiry. The onus is on the Crown. If the Crown does not persuade the court, a youth sentence will be imposed.

Again, as noted, under the YCJA, the young person charged with or found guilty of a presumptive offence, however, must apply for an order that he or she is not liable to an adult sentence so that a youth sentence can be imposed (section 63(1)). In making its decision, the court must consider whether a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour” (sections 72(1)(a) and (1)(b)). In deciding whether it would be a sufficiently long sentence, the court is to consider “the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant (section 72(1)).”

Justice Abella probed the effect of a presumptive sentence on a young person. She wrote:

In the case of presumptive offences, it is the young person who must satisfy the court of the factors justifying a youth sentence, whereas it is normally the Crown who is required to satisfy the court of any factors justifying a more severe sentence. A maximum adult sentence in the case of presumptive offences is, by definition, more severe than the maximum permitted for a youth sentence. A youth sentence for murder cannot exceed ten years; for second-degree murder, seven; and for manslaughter, three. The maximum adult sentence for these offences is life in prison.

A young person should receive, at the very least, the same procedural benefit afforded to a convicted adult on sentencing, namely, that the burden is on the Crown to demonstrate why a more severe sentence is necessary and appropriate in any given case. The onus on the young person reverses this traditional onus on the Crown and is, consequently, a breach of section 7 [of the Charter].

Effect of Reverse Onus

Justice Abella, in The Queen v. D.B., stated that an adult sentence can be imposed on a youth. But that sentence must be justified by the seriousness of the offence and the circumstances of the offender.

This means, Justice Abella said,

[that the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies. Putting the onus on the young person to prove the absence of aggravating factors in order to justify a youth sentence, rather than on the Crown to prove the aggravating factors that justify a lengthier adult sentence, reverses the onus.

In my view, both the informality of the sentencing procedure as to the admissibility of evidence and the wide discretion given to the trial judge in imposing sentence are factors militating in favour of the retention of the criminal standard of proof beyond a reasonable doubt at sentencing.

Because the sentencing process poses the ultimate jeopardy to an individual enmeshed in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.… It is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those facts beyond reasonable doubt.

YOU BE THE JUDGE

A Matter of Defence: Public Protection

The Facts

D.B.’s record both before and after he struck and killed his victim in a shopping mall fight was serious and lengthy. He had been involved in two parole violations following the fight that led to his second-degree murder conviction. As well, he had been involved in fights with other youths while incarcerated.

The Crown prosecutor argued that, on the face of that record, it should not have to bear the burden of proving D.B. should be sentenced as an adult offender and that the publication ban masking his identity should be removed. D.B., the Crown seemed to say, was a threat to society.

In its argument to the Supreme Court of Canada, the Crown seemed to have set out its argument in the alternative. That is, assume the burden of proof in terms of presumed offences under the YCJA was overturned because of section 7 of the Charter as a violation of liberty not “in accordance with the principles of fundamental justice.”

Still, the Crown stated, the “sentencing provisions [of the YCJA] served the goals of accountability, protection of the public, and public confidence in the administration of justice.” As such, they should be sustained.

The Issue

Who should have the burden of proving if D.B. should be sentenced as an adult?

Points to Consider

For our purposes, assume, as indeed was the case, that the Court had ruled the presumed offences under the YCJA in terms of burden of proof were a violation of section 7 of the Charter.

The question now is whether the Charter contains another provision that would otherwise support the Crown’s position.

In this regard, the Crown turned to section 1 of the Charter, which provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

In effect, section 1 of the Charter would allow a section 7 infringement if it were a reasonable limit set out by law as can be justified in a free and democratic society.

To meet the section 1 defence, two conditions must be met: (1) there must be a reasonable (rational) connection between the limitation on the liberty interest protected by section 7 of the Charter and the goal to be achieved — protection of the public; and (2) the limitation must be the minimum necessary to achieve the stated goal.

Discussion

Justice Abella, speaking for the Supreme Court of Canada majority in The Queen v. D.B., rejected the section 1 Charter defence raised by the Crown. She accepted that Parliament’s objectives of accountability, public safety, and public confidence indeed were proper. But, she insisted that individual Charter rights could be safeguarded while at the same time rights set out by Parliament were protected. Thus, the need continued for the Crown to carry the burden of proof in demonstrating the need for an adult sentence.

The Young Offender: Still Accountable

The young offender still remains accountable. Justice Abella stated:

This does not make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection.

Promoting the protection of the public is equally well served by putting this onus on the Crown, where it belongs. The Crown may still persuade a youth court judge that an adult sentence or the lifting of a publication ban is warranted where a serious crime has been committed. And young persons will continue to be accountable in accordance with their personal circumstances and the seriousness of the offence. But the burden of demonstrating that more serious consequences are warranted will be, as it properly is for adults, on the Crown.

YOU BE THE JUDGE

The Queen v. D.B. — Publication Ban

The Facts

D.B. was given a youth sentence. As part of this youth sentence, the YCJA provides for a publication ban, which prohibits any publication of the accused youth’s identity. That is why D.B. is referred to by initials rather than by his full and legal name. However, the burden of showing that the ban should remain is placed on the young offender.

The Issues

Who has the burden of showing why a publication ban should be removed? What must be proved to meet that burden?

Points to Consider

The publication ban is only technically part of the YCJA sentence. The reason for this is to allow an appeal of any court order permitting the youth’s identification.

The YCJA imposes on the youth a “reverse onus” burden even if the court imposes a youth sentence. That is, the youth must show entitlement to a publication ban.

The Crown prosecutor argued in The Queen v. D.B. that D.B. had the burden of showing why the publication ban should not be removed.

In section 3(1)(b)(iii) of the YCJA, the young person’s “enhanced procedural protection … including their right to privacy” is stated to be a principle to be emphasized in the application of the Act.

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice provides that “the juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declares that “in principle, no information that may lead to the identification of a juvenile offender shall be published.”

Discussion

Justice Abella, speaking for the Court majority in The Queen v. D.B., ruled that the Crown had the burden of showing why the publication ban should be removed. She linked this conclusion to the sentence’s effect on a young offender. As such, her reasoning relating to section 7 of the Charter applied. She wrote:

I see the onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban to be a violation of section 7. As discussed, the effect of the reverse onus provisions is that if a young person is unable to persuade the court that a youth sentence should be imposed, an adult sentence is imposed.

When an adult sentence is imposed, the young person loses the protection of a publication ban. But even if the young person succeeds in discharging the reverse onus and receives a youth sentence, the YCJA imposes an additional onus by requiring the young person to apply for the ban that normally accompanies a youth sentence.

In s. 3(1)(b)(iii) of the YCJA … the young person’s “enhanced procedural protection … including their right to privacy,” is stipulated to be a principle to be emphasized in the application of the Act.

Scholars agree that “publication increases a youth’s self-perception as an offender, disrupts the family’s abilities to provide support, and negatively affects interaction with peers, teachers, and the surrounding community” (Nicholas Bala, Young Offenders Law (1997), at p. 215). Professor Doob … testified about this issue before the Standing Committee on Justice: “I think you’d be hard-pressed to find a single professional who has worked in this area who would be in favour of the publication of names. From the very beginning when this was proposed in May 1998, I’d never heard anybody give a single reasoned, principled argument for doing it. Now, there are some other arguments for doing it having to do essentially with vindictiveness, but in terms of actually trying to be constructive in any way, as I said, I would certainly find it very difficult to find anybody who has done any research on this kind of issue who would support it. It just seems to me to be a gratuitous meanness.”

International instruments have also recognized the negative impact of such media attention on young people. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules,” adopted by General Assembly Resolution A/RES/40/33 on November 29, 1985) provide in rule 8 (“Protection of privacy”) that “the juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declare that “in principle, no information that may lead to the identification of a juvenile offender shall be published.”

The foregoing demonstrates that lifting a ban on publication makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe. A publication ban is part of a young person’s sentence (section 75(4)). It is therefore subject to the same presumption as the rest of his or her sentence. Losing the protection of a publication ban renders the sentence more severe. The onus should therefore be, as with the imposition of an adult sentence, on the Crown to justify the enhanced severity, rather than on the youth to justify retaining the protection to which he or she is otherwise presumed to be entitled. The reversal of this onus too is a breach of section 7.

Dissenting Opinion

Justice Rothstein and three other justices dissented from the majority in The Queen v. D.B.

First, Justice Rothstein argued that the only purpose of the appeal provisions of the YCJA relating to publication bans was to give a limited right to seek court review where one would not otherwise exist. The reality, he said, is that publication bans simply are not part of any sentence. Publishing a story about the alleged crime does not, as such, impose any kind of sentence on the defendant, though it surely may be argued that such publication may hold the defendant up to ridicule.

Further, he argued that the provision of the YCJA relating to the presumption of publication bans does not involve issues involving section 7 of the Charter. He stated:

The liberty interest protected by section 7 encompasses freedom from physical restraint and protection of an individual’s personal autonomy.… Since the presumption of publication does not cause physical restraint on young offenders nor does it prevent them from making fundamental personal choices, the interests sought to be protected in this case do not fall within the liberty interest protected by section 7.…

Where, as here, the security right in section 7 is being invoked on the basis of an impact on the individual’s psychological security, “serious state-imposed psychological stress” must be demonstrated: The Queen v. Morgentaler, [1988] 1 Supreme Court of Canada Reports 30.… The two factors which must be evaluated [are]: the psychological harm must be state imposed, meaning that the harm must result from the actions of the state, and the psychological prejudice must be serious.

I accept that publication of a young offender’s identity may increase a youth’s self-perception as an offender, disrupt the ability of a youth’s family to provide support, and negatively affect interaction with peers, teachers, and the surrounding community.… However, the difficulty in this case is not the existence of harm but rather whether that harm is state induced. In my view, it is not.

As Bastarache J. [for the Supreme Court of Canada in another matter] emphasized … it is “inappropriate to hold government accountable for harms that are brought about by third parties who are not in any sense acting as agents of the state.” He explicitly stated that psychological stress resulting from media coverage can only underlie a section 7 claim where it can be directly linked to state action.

In [this] case, there is no state action: the stigma and labelling that may arise from release of the young offender’s identity result from the actions of the media and broader society. The harm is a product of media coverage and society’s reaction to young offenders and to the crimes they commit.

Although Parliament has recognized that unwanted publicity and the public’s negative reaction may harm young offenders convicted of crimes, and has afforded the vast majority of them a degree of protection by requiring a publication ban (section 110(1) YCJA), this does not mean that the state is responsible for imposing the harm that may result without the publication ban.

Age Counts under the YCJA:
Other Jurisdictions

In Canada, only young offenders aged fourteen and older, but less than eighteen, charged with committing a “presumed” offence, may be sentenced as an adult. It is here where the reverse onus, earlier described, comes into play. Other countries, on the matter of sentencing young people as adults, have taken positions similar to that of Canada. The matter of reverse onus, however, is another matter.

France, the European Union, and the United Kingdom

A government-sponsored study in France recently recommended that judges be permitted to sentence youths as young as age twelve to detention for crime. The French minister of justice had called for an overhaul of the juvenile justice system saying that it was not equipped to deal with younger and more violent criminals.

If the proposal were adopted, it would reduce the age for such sentencing from thirteen. And, as such, it would be in line with many other countries in the European Union and the United Kingdom.

The French proposal coincided with a suggestion from a spokesperson for the French president who said that toddlers could be screened for “violent tendencies” to identify those who might commit crimes in the future. The suggestion had been made in 2008 by the French president himself and a major French public health research institute. At the time, opponents of the proposal mustered fifty thousand signatures in opposition (Sachs 2008).

The Media’s Response

The following editorial on The Queen v. D.B. appeared in the Globe and Mail on May 17, 2008:

Seldom in recent years has a constitutional decision seemed so conjured out of thin air. Yesterday the Supreme Court of Canada struck down the youth-justice law’s presumption that 14- to 17-year-olds who commit the most serious offences, such as murder, will receive adult penalties. Its legal justification was simply baffling. It can be understood only as a policy choice, usurping Parliament’s role.

On what constitutional grounds did the court decide the presumption cannot stand? Madam Justice Rosalie Abella, writing for the 5-4 majority, said it violates a “principle of fundamental justice” — a value so basic to Canadians that the legal system would fall into disrepute without it. The principle is that young people in general should be held less culpable for their crimes than adults. On that, Judge Abella was right — but the law already embodies that principle.

The Youth Criminal Justice Act is a delicate political compromise and a balancing of competing societal interests. The act’s main thrust is overwhelmingly liberal: that young people should be kept out of jail if at all possible, especially if their crimes are non-violent (arson is considered a non-violent crime, as is leading police on a 160-km-an-hour car chase). The government argued that the act took into account public safety by presuming that the few youths who commit the most serious crimes (murder, attempted murder, manslaughter, aggravated assault or three serious violent offences) would receive adult penalties. (The presumption covered those 16 and 17 in 1995, and was extended to 14-and-15-year-olds in 2003.)

That presumption can be overcome, however, by the convicted youth. And the judge is required to invite the youth to argue against the presumption. And any arguments the youth and his lawyer make are presented in the context of the youth-crime law, which stresses the importance of rehabilitation. And even some of the adult penalties have been modified for youths. For instance, a first-degree murder conviction for adults brings an automatic life sentence with no parole eligibility for 25 years. A first-degree murder conviction for 16- and 17-year-olds also brings life, but parole eligibility is set at 10 years; for 14-and 15-year-olds, it’s set at seven years. The law already establishes a separate criminal law for youth based on their lesser maturity.

As Mr. Justice Marshall Rothstein said for the minority, “The presumptive offence scheme significantly recognizes the age, reduced maturity and increased vulnerability of young persons.” (His emphasis.) It cannot then violate Canadian notions of fundamental justice.

The [Supreme] Court has confused a legitimate policy choice with a fundamental value. In the United States, more than 2,000 juveniles convicted of murder are serving life sentences without a chance at parole. That would violate core Canadian principles — even for adults. Roughly a quarter of those 2,000-plus juveniles did not commit the murder themselves but were along on a robbery or other crime that turned deadly. That would shock Canadians’ consciences. Nothing in Canadian law comes close. The youth-justice law as it stood did not offend basic values. This was a case of a court imposing its political viewpoint on the country with a constitutional sleight-of-hand. (“Sleight-of-Hand at the Supreme Court,” 2008)

Guilt and Sentencing for Murder
Under the YCJA

Medicine Hat Killings

A fourteen-year-old Alberta girl was convicted in November 2007 of the first-degree murders of her mother, father, and eight-year-old brother. The killings took place in 2006 when the girl, who cannot be named under the YCJA, was twelve years old. Records indicate that she is Canada’s youngest convicted killer.

The murders were carried out with her “boyfriend,” Jeremy Steinke, then twenty-three. Steinke was tried before a jury. He steadfastly said that the murder of the eight-year-old was committed by his then twelve-year-old girlfriend. The jury deliberated for eleven hours before returning a verdict of guilty of murder in the first-degree in connection with the deaths of the three family members.

At the girl’s trial, the Crown said that the pre-sentence report suggested that she had an “oppositional defiance disorder and conduct disorder.” The Crown prosecutor, Stephanie Cleary, said of the fourteen-year-old: “The young person does not recognize that she has committed a crime, nor does she have any insight into her condition.”

Justice Scott Brooker described the murders as “horrific.” He said that the killing of the eight-year-old was “incomprehensible.” He described the girl’s mother and father as “wonderful parents” who loved their daughter and had tried to get her into family counselling.

Justice Brooker imposed a sentence known as intensive rehabilitative custody and supervision. This is a sentence rarely used under the YCJA — one for which young offenders must be diagnosed with some form of emotional or mental disorder. The girl will serve the maximum sentence of ten years, with credit for the eighteen months already spent in custody. Under the sentence, the first four years would be spent in a psychiatric hospital rather than a youth detention centre.

For Steinke, there is an automatic life sentence for a first-degree murder conviction. As well, there can be no eligibility for parole for twenty-five years (“Teen Gets Maximum Sentence for Medicine Hat Killings” 2007; “Steinke Found Guilty of First-Degree Murder” 2008).

Regina Teen Sentenced as an Adult

Larry Moser tried to help a Regina convenience store clerk who was fighting with a group of teens outside the store over a bag of sunflower seeds on Boxing Day, 2006. A sixteen-year-old, who cannot be named because of the YCJA, took part in the fight. He had a knife and stabbed Moser with it. Moser died from the wound.

The youth was tried and convicted of second-degree murder on November 28, 2008. The judge ordered the youth to serve a life sentence within the meaning of the YCJA. Practically, this means that the youth may not be considered for parole for seven years. The judge said the youth exhibited anti-social criminal behaviour and only the sentence imposed with its state-control would protect the public. At the time of trial and sentencing, the youth was eighteen (“Regina Teen Sentenced as Adult in Good Samaritan Killing” 2008).

Gunfight in Toronto

Jane Creba, age fifteen, was shot to death on December 26, 2005. She was an innocent bystander, part of a crowd of Boxing Day shoppers in downtown Toronto. She was the victim of a gunfight between two groups, consisting in part of youths. The stray bullet that caused her death struck her in the back. Four men and two women were wounded in the crossfire.

Two youths and seven adult suspects were arrested, including J.S.R., who was seventeen at the time of the shooting. (J.S.R. was then six weeks from his eighteenth birthday — and, thus, nearly an adult. By the conclusion of trial and before sentencing, he was twenty-one.) At the scene of the gunfight, police found seven shell casings fired from the gun that killed Creba. J.S.R. was not charged with firing the pistol that killed Creba, but he was part of the gangs in conflict.

J.S.R. was arrested only forty minutes after the shooting. Police found a pistol in his possession that had been discharged and was later found responsible for wounding two bystanders (though not Creba). J.S.R., from the time of his arrest, said that the weapon police found had been handed to him after the shooting by the actual gunman, who J.S.R. named. It appeared that J.S.R. had been “cooperative” in the police investigation.

J.S.R. was the first of the nine arrested to go to trial. On December 7, 2008, the jury returned verdicts of guilty of second-degree murder in the death of Creba, as well as five weapons charges and two of six counts of aggravated assault. The courtroom was silent when the jury foreperson rose to announce the verdict. J.S.R. showed no emotion, other than his eyes initially fluttering. The trials of the remaining defendants were to take place later.

On December 11, 2008, the Crown stated that it wanted an adult sentence for J.S.R. If he were sentenced as an adult, he would be given life in prison with no eligibility for parole for seven years for the second-degree murder conviction. If J.S.R. were sentenced as a youth, he would receive a sentence of seven years, no more than four of which would normally be served in custody.

In the course of J.S.R.’s trial, the judge reduced the charge from second-degree murder to manslaughter. However, on appeal to the Ontario Court of Appeal, the more serious charge was reinstated. The appellate court ruled that a jury could find that J.S.R. could have participated in a “frenzied shootout.” He could have “substantially contributed” to Creba’s death by engaging in a gunfight. The reasoning seemed to be that if J.S.R. had not fired the gun, then the gun that had been fired and killed Creba likely would not have been fired.

Shortly before the gunfight, video cameras spotted J.S.R. as part of an aggressive group of young men moving about the Eaton Centre in downtown Toronto, close to where the gunfight took place. They had already “committed at least two … crimes of violence in full public view.” The attacks were edited out of the tapes shown to the jurors in the J.S.R. trial. J.S.R. already had been subject to a court order prohibiting him from even being on Yonge Street — the street, as it turned out, on which Creba had been shot.

J.S.R.’s sentencing was handed down by Ontario Justice Ian Nordheimer on April 24, 2009. J.S.R. was then twenty-one. It took Justice Nordheimer about an hour to read his sentencing judgment. Within the framework of the YCJA, Justice Nordheimer sentenced J.S.R. as an adult. In doing this, the judge stripped away J.S.R.’s anonymity. His identity was revealed to the public: Jorell Simpson-Rowe. His record of conviction was archived as open to the public.

While the YCJA rules out “denunciation” as an element of sentencing a youth, Justice Nordheimer said meaningful penalties are necessary in “society’s interests.” He noted what pre-sentence reports referred to as Simpson-Rowe’s hellish upbringing. Still, said the judge, Simpson-Rowe was capable of distinguishing right from wrong. The judge said:

In essence, as found by the jury, Mr. Simpson-Rowe opened fire with a semi-automatic pistol handgun on a crowded downtown street full of innocent citizens who were simply enjoying one of the rituals of the holiday season — Boxing Day sales.

The residents of this city are entitled to expect, indeed, they are entitled to insist, that they be able to go about such ordinary activities in relative safety and not be faced with the type of inexcusable violence that was unleashed by Mr. Simpson-Rowe and his associates.

The effect of Justice Nordheimer’s sentence on Simpson-Rowe is that he will serve another three years and eight months in prison. He will be twenty-four when eligible for parole. (This may not be the end of the story. Lawyers for Simpson-Rowe announced that they will appeal the verdict — a matter that may take more than a few years.) (Appleby 2009b; Blatchford 2008; “Crown Seeks Adult Penalty in Creba Case” 2008; DiManno 2009; “Man, 20, Guilty of 2nd-Degree Murder in Jane Creba Shooting” 2008.)

CHALLENGE QUESTION

What Do Current Statistics Prove?

Q: On the same day as the Supreme Court of Canada handed down its decision in The Queen v. D.B., Statistics Canada issued a report on youth crime in 2006. The report stated that youth crime in homicides had reached a historic high of fifty-four, an increase of 3 percent over 2005. Aside from an increase in youth homicides, what, if anything, is reflected in the quoted statistic? Does it indicate an increased level of crimes of violence by the young?

This question was suggested in a Globe and Mail article by Timothy Appleby (Appleby 2008a). He briefly cited the Court’s holding in The Queen v. D.B., then reported the statistic quoted above.

Appleby asked for, received, and set out the following comments from experts — both police officers and youth advocates.

Constable Scott Mills, Toronto’s Crime Stoppers officer for schools, stated, “I deal with kids every day and they have told me personally, directly, many times: ‘I’ll [commit the crime] because the consequences are minimal.…’ So there has to be a deterrent, and as a street cop I can tell you this: I don’t think the legislators or the judges were expecting fourteen- and fifteen-year-olds to be doing armed robberies and murders on the level they are today.”

Bernard Richard, a New Brunswick provincial advocate for children and youth, stated, “The research [of Statistics Canada and that which the Supreme Court cited in The Queen v. D.B.] is pretty solid — that as much as possible we should divert youth away from custodial sentences.… In the five years since the YCJA replaced the Young Offenders Act, the number of juveniles behind bars has dropped by a third.”

The Statistics Canada report was taken from nationwide police reports. The data showed that youth crime was down 6 percent from a decade earlier, and down 25 percent from a 1991 peak. The youth crime rate was 6,885 for every 100,000 young people. Homicides committed by the young represented .05 percent of youth crimes. Still, the fifty-four homicides reached their highest peak since such data was first collected in 1961. The fifty-four killings involved seventy-two boys and twelve girls. Knives were used in 44 percent of the killings and firearms in 17 percent.

Appleby stated, “The Statscan report noted that in more than half of 2006’s youth homicides, multiple perpetrators were involved. That compares with only 15 percent of the homicides in which adults were accused.… Peer pressure is a major factor in youth violence in the view of Constable Mills.” (See the discussion on bullying in chapter 3.)

Another Report on Youth Violence

The Statistics Canada data on youth violence cited above was gathered from police forces throughout Canada. It suggests a low level of violence by or against teens. However, another 2008 study, sponsored by Ontario Premier Dalton McGuinty, seemed to indicate otherwise.

Roy McMurtry and Alvin Curling headed the study. McMurty was the former Ontario attorney general and Curling was chief justice of Ontario, former speaker of the Ontario Legislative Assembly, and the first African-Canadian to hold a cabinet-level position.

The study was ordered in 2007 following the shooting death of a fifteen-year-old African-Canadian student in his Toronto school. Shortly after the killing, police arrested and charged two seventeen-year-olds with the murder. The killing apparently arose out of a fight. There did not appear to be any direct link to racism.

Still, the report stated, “We were taken aback by the extent to which racism is alive and well and wreaking its deeply harmful effects on Ontarians and on the very fabric of this Province.”

Among the report’s recommendations were: (1) that the province continue to press the federal government for a ban on handguns and (2) that community neighbourhood hubs be built for young people. This second approach envisions getting schools to assume a larger role in community youth development. The cost was estimated at $100 million (Alphonso 2008).

Help did come to the school where the teenager had been shot. Acting principal Jim Spyropoulos said, “The [school board] has been amazing.… We talk a lot about wraparound supports [for students]. You want to talk about wraparound? [The school] has got wraparound love — from facilities, from employee services.”

The school was provided with two additional full-time hall monitors (for a total of four) and another vice-principal (for a total of three). Money came to beef up the library, and a new construction shop was approved. “We’re fortunate that the people who are in the [new] roles have a really good grasp on the school and on the community,” Spyropoulos said of the monitors and vice-principals (Rushowy 2007).

“Presumption” Under the YCJA—
Burden of Proof

Who has the burden of proving presumption under the YCJA? Under the YCJA, as a principle, young persons are presumed to have diminished moral responsibility (culpability). But, what does this presumption mean?

Another way of giving meaning to presumption is to state that the Crown continues to carry the burden of proof. Justice Abella wrote:

Like all presumptions, it is rebuttable. Under the presumptive offences sentencing scheme, it is the young person himself or herself who is required to prove that the presumption should not be rebutted, rather than the Crown who is required to show why it should be. The constitutional implications of this reversal of the onus create the legal knot we are asked to untie. To do so, we must first determine whether the principle of a presumption of diminished culpability is one of fundamental justice within the meaning of section7 of the Charter.

CHALLENGE QUESTION

A Matter of Principle

Justice Abella reviewed the history of Canadian criminal law relating to young offenders. She noted that, on occasion, Parliament changed and made more restrictive both the liability and periods of custody imprisonment for young offenders. For example, she wrote of the then Young Offenders Act (YOA):

Initially, section 16 of the YOA permitted the transfer to adult court of youths charged with the most serious offences. The Crown, in applying for such a transfer, bore the burden of demonstrating that it was appropriate. In The Queen v. M. (S.H.), [1989] 2 Supreme Court of Canada Reports 446, this Court held that this was not a “heavy onus.” Nor did the Crown have to demonstrate “exceptional” circumstances to make its case for transfer. Nonetheless, the Court noted “that is not to say that the transfer of a case from Youth Court to ordinary court is not a matter of the utmost seriousness.”

The test for transfer was whether the judge was “of the opinion that, in the interest of society and having regard to the needs of the young person, the young person should be proceeded against in ordinary court.” A number of factors were to be considered before transferring the young person, including the seriousness and circumstances of the offence, the young person’s situation, and whether he or she already had a record.

In 1992, the federal government amended the YOA to lengthen the maximum sentence in youth court for murder from three years to five years less a day. It also amended the transfer provisions to stipulate that the “protection to the public” was the paramount consideration. The period of parole ineligibility was, however, reduced for young persons convicted of first and second-degree murder in adult court so that once incarcerated in adult facilities, they could be released sooner than their adult counterparts.

In 1995, the YOA was amended by the addition of section 16(1.01) to require explicitly that 16- or 17-year-olds charged with murder, attempted murder, manslaughter or aggravated sexual assault be tried as adults in ordinary court, unless the young person or the Crown applied to have the matter proceed in youth court. The constitutionality of this provision was never tested in this Court.

Q: If Parliament was able to change the law relating to penalties for young offenders, including violent young offenders, how can it be said that their diminished responsibility has some overriding legal principle that has held true over the years?

The answer, in part, may come from the definition of principle, which includes the element of basic truth or assumption. In this regard, Justice Abella, before reciting the then new penalties, especially for violent youth crimes, noted the purpose of the YOA. She referred to section 3(1) of that act:

It is hereby recognized and declared that

(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions [violations] …

(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance.

Justice Abella, again speaking for the majority of the Supreme Court of Canada, found in the current law, in section 3(1) of the YCJA, a carry-forward of that legislative purpose:

The following principles apply in this Act:

(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

Justice Abella wrote that “section 3(2), moreover, states that the YCJA ‘shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).’” She added, “The preamble [of the YCJA] recognizes society’s ‘responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood; encourages guidance and support; and seeks effective rehabilitation and reintegration.’”

In summary, the facts seem to be that Parliament, at one and the same time, chose to make the penalties, especially for violent serious crimes of young offenders, subject to greater penalties while also keeping as a central purpose of the law the principle of diminished culpability of young offenders.

Police Presence in High Schools

In September 2008, a new program began in Toronto. A total of thirty police officers were assigned to thirty different high schools across the city (twenty-two in the Toronto District School Board and eight in the Toronto Catholic District School Board). Some critics predicted the worst. One public school trustee said, “To have them walking the halls and wearing guns in high schools, where guns are a problem, is mind-blowing to me.”

But the critics, it seems, were wrong. At the high schools with a full-time police presence, attendance is up and suspensions and criminal charges are down.

Staff Sergeant Sharon Davis, who coordinates police officers in the School Resource Officer program, discussed the importance of the drop in criminal charges. She said, “Anybody who ends up needing to be arrested — that’s a failure. Once young people enter the criminal justice system, all studies show that their chances of success in life — finishing school, having a good job — are diminished.”

The success of the program has been in large part due to the good relationships that have been established between the police officers and the students. Officers have made an effort to get to know the students and become a part of the school communities.

The guiding principle has been that dealing with minor problems by means of warnings and no-nonsense advice can be more productive than dragging young people “into the jaws of the justice system.”

Numerous other Canadian cities and jurisdictions have comparable programs (Appleby 2009a).

The Public’s Response

When the police program in Toronto high schools was reported in the Globe and Mail, a number of people posted comments on the newspaper’s website. Most expressed support for the program, but others expressed serious concerns. A sampling of opinions follows:

“I am all for this. I am a high school teacher and the Calgary Board of Education had an officer in each of their high schools when I taught with them several years ago.… Students were often in the constable’s office, chatting, getting advice, etc. I saw a marked change in how the students perceived the police and their role.”

“If I were a student going to one of these schools, I would be happy knowing that there was someone to help and possibly protect me.”

“What has happened to our society that we require police officers in school?”

“Perhaps security guards at half the cost or more would make this a more effective program. Seemingly, it is primarily security that the police presence provides.”

“This program shows students that cops are just regular folks and can have a positive impact on lives.… No one is expecting that this program will suddenly make crime disappear from schools, but if it steers some folks away from bad choices and makes others feel safer coming to school, which early results suggest are the outcomes, then it’s an excellent program.”

“This should be seen as a temporary add-on but far more focus should be put into finding solutions to the cause of the issue of ‘dangerous’ schools. Hopefully these officers are first taking many courses prior to providing advice to kids. Placing individuals in positions of authority does not [guarantee] that they have all the answers for these kids (or correct ones).”

“When I went to high school 10–15 years ago, we had many, many violent incidents occurring. We were on the news three times in my grade 9 year! The following year we had a new principal who came in, expelled all the troublemakers and brought in a police officer to walk the halls once or twice a week. Not to mention the other police who would occasionally drive through our parking lot talking to students.… Our school cleaned itself up within a year, essentially ridding itself of a gang problem. The fact that police were there when this occurred cannot be coincidence.”

“Hopefully by being proactive rather than reactive, the police presence may help some kids who would go bad from doing so and, in any case, provide a safer classroom.”

“This [program] makes a big difference to kids when the only time they usually see police is in squad cars or getting out to arrest someone.”

“If the Toronto school board were serious about reducing violence in schools, it would spend more money on special education, psychologists and social workers.”

A police officer is a presence. How that person is viewed depends not only on how he or she sees their duty but also on how students, teachers, administrators, and parents view the police officer.

Youth or Adult Sentence for a Young Killer

On September 21, 2006, twenty-three-year-old Michael Oatway was sitting in the back of an Ottawa-Carleton bus, listening to music on his iPod. Suddenly, he was surrounded by S.M. and three friends. S.M. (not further identified because he was seventeen at the time) demanded, at knifepoint, that Oatway give him his iPod. Oatway refused, and was fatally stabbed.

S.M. was found guilty of first-degree murder on November 28, 2008, following a three-week trial. Following the verdict, prosecutors said they would be seeking an adult sentence for S.M.

Under the YCJA, if S.M. were sentenced as a youth, the maximum penalty for first-degree murder would carry a ten-year sentence, although an offender can only spend a maximum of six years in custody, with the remainder of the sentence to be served in open custody, meaning a halfway house or the offender’s own home. If sentenced as an adult under the YCJA, S.M. would serve ten years in jail (minus the time spent in pre-trial custody).

There is a very important difference between the two sentences, however. If charged as a youth, S.M.’s name would never be made public, and five years after the end of his sentence, the conviction would disappear from his record. If sentenced as an adult, the conviction would stay with him forever. He would remain on parole for the rest of his life, and his name would probably be made public.

The Sentencing Hearing

S.M.’s sentencing hearing began on January 28, 2009. As a result of the Supreme Court’s decision in The Queen v. D.B., the burden of proving that he warranted an adult sentence rested with the prosecution.

The prosecutor called four of Oatway’s relatives to deliver emotional victim impact statements. Then the parole officer discussed S.M.’s difficult childhood; his unsuccessful efforts to straighten out his life; and his manipulative, aggressive nature.

S.M.’s Sentence

On February 12, 2009, Justice Robert Maranger of Ontario Superior Court ruled that S.M. should be sentenced as an adult and that the seriousness of the crime warranted the lifting of the publication ban on his identity.

S.M., now identified as Shawn McKenzie, was sentenced to ten years in jail. He would be able to apply for parole in seven-and-a-half years, however, because of the two-and-a-half years spent in custody following his arrest. (With actual adult sentences, the minimum is twenty-five years behind bars before eligibility for parole.) He will remain on parole forever, and the conviction will remain on his record.

The judge took into account McKenzie’s difficult childhood and positive attributes, but added:

I can say that I found it troublesome that throughout the proceeding, he did not show any sign of remorse or regret for his actions. He did not even express remorse or regret when the victim impact statements were read in open court at the sentencing hearing.

It could be simply false pride, as described by his counsel, or frankly, it could be the emotional detachment of a very cold-blooded individual.

What may have tipped the scales for Judge Maranger opting for an adult sentence was the testimony of probation officer Andre Sarazin, who told the court that as a professional and private citizen, he would be more comfortable if McKenzie were supervised for a longer period of time.

The judge concluded, “I am not reasonably assured that Shawn McKenzie can be rehabilitated and reintegrated safely into society through a youth court sentence.”

Solutions to Youth Violence

Some criminologists who study youth crime believe that: (1) the worst offenders often come from the poorest families in the worst neighbourhoods; (2) they often have neglectful or absent parenting; and (3) the solution, if there is one, must come early, in the form of prevention programs.

Elliott Leyton, an anthropologist who has studied youth crime, believes that the solution to youth crime “lies in the reduction of unemployment, the increase in social programs and the use of punishment rather than prison.” He expresses concern, however, about “the generation of vipers … already created, those juveniles and young adults, some on probation, who have little if any feeling for others and are perfectly willing to slaughter the innocent.” And, he asks, “Why is the entire system focused so heavily on the needs and rights of violent men and women?”

Leyton sums up what a smart society and justice system would do: “Radically improve social conditions and economic opportunities. Ruthlessly repress violence” (Blatchford 2009a; 2009b; 2009e; Seymour 2008; “Teen Sentenced as Adult in Michael Oatway Murder” 2009).

An Adult Sentence for
a “Puppet Master” Killer

On New Year’s Day, 2008, fourteen-year-old Stefanie Rengel opened the front door of her Toronto home and faced a killer. She was stabbed six times and bled to death shortly after in the arms of a stranger who saw her staggering along the sidewalk.

Within hours, police arrested a seventeen-year-old male (identified as D.B.) and a fifteen-year-old girl (identified as M.T.) and charged them with first-degree murder. (Their identities were protected under provisions of the YCJA.) D.B. was alleged to have been the person who attacked Rengel. M.T., though not alleged to have been at the scene of the crime, was alleged to have been the “mastermind” behind the killing.

At M.T.’s trial, the court heard that she was obsessively jealous of Rengel, whom she had never met but regarded as a rival. For over eight months, through conversations, text messages, Facebook ramblings, and Internet chats, she used sexual blackmail to pressure D.B. to kill Rengel.

The jury considered thousands of pages of text messages between M.T. and D.B., including conversations that apparently detailed their plans for the murder. M.T., in explicit terms, threatened to cut off sexual relations with D.B. unless he killed Rengel. She warned him that she would break off with him completely. In one message, she had told him: “I want her dead.… We’ve been through this.” Later, she added: “If it takes more than a week, then we’re jus gonna be friends.”

The Jury Decides

The jury watched two videotaped statements given by M.T. to police just hours after being arrested. In both, she seemed emotionless. She acknowledged that, though D.B. was more violent, she was the one more committed to Rengel’s death. She was asked by police, “He wouldn’t have thought of killing her had you not been so upset about what you perceived as her interference in your relationship, right?” She answered simply, “Yes.”

Prosecutors relied on a well-established legal principle: Counselling others to kill makes a person guilty of murder. On March 20, 2009, the jury found M.T. guilty of first-degree murder. It was then up to the judge to determine whether M.T. would be sentenced as a youth or an adult.

The Media’s Response

Following the jury’s decision, the Globe and Mail published the following editorial:

Sentencing a 15-year-old girl to an adult penalty, even for first-degree murder, is a major step for Canadian justice. The adult penalty is a mandatory life term. But it is the right step in the case of the Toronto girl known as M.T., convicted last week and awaiting sentence for her role in the stabbing death of 14-year-old Stefanie Rengel.

Canada’s courts tend to look assiduously, as they should, for any hope of rehabilitation in the young. But the adult penalty for those 17 and under has a special parole clause. At age 15, M.T. would be eligible for parole after five to seven years, at the trial judge’s discretion. This is a built-in form of leniency, a promise that those who deserve a chance at rehabilitation can get that chance while they are still young. It is not really an adult penalty, but a hybrid of the adult and youth penalties. And it fits these circumstances.

The killing of Stefanie Rengel was not a crime of passion, a “mistake” in judgment which might be blamed on youthful immaturity. Its cold-bloodedness chills the spine. For months, over countless emails, text messages and cellphone conversations, M.T. urged her 17-year-old boyfriend to kill Ms. Rengel, a girl she had never even met, on the apparent basis of a grudge she had developed against her. (The boyfriend is about to be tried for first-degree murder.) When he said he might be recognized, she told him to cut leotards and put them over his face. When the boy missed an earlier deadline for the killing, she withdrew sexual favours. When it was done, she re-enacted the killing with the boyfriend. Later, she protested to police that she and the boyfriend had talked of mundane things, in addition to the killing, as if that made her less of a killer.

None of this takes the onus off the boy who allegedly stabbed Ms. Rengel six times on New Year’s Day, 2008, leaving her to bleed to death in agony, with only a kind passerby to comfort her. But it does mean that M.T., who was nearly 16, is a serious threat to public safety.

Will that threat be diminished by the time six years is past, the maximum term in custody (followed by four years supervised in the community), if she is sentenced as a youth? Will she be safe to release? It’s impossible to predict at this point. No presentencing hearing has been held, and so it is not publicly known what sort of home life she has had, and what mental difficulties she might have experienced. But it is hard to see how her personal background would help the court predict the danger she poses. In these circumstances, the community’s protection should be paramount.

With a life penalty, M.T. would have to demonstrate to a parole board that she is an acceptable risk for release. Perhaps in five to seven years — let’s hope it’s at least six — she will not be ready. But perhaps in 10 or 12 she will be. Perhaps, too, she needs the threat of life behind bars to force her to deal with whatever made her wish to kill in cold blood. Who is helped by treating her as a youth? Not her. Not society.

A life penalty has three other benefits: She will have to report to parole authorities for life, rather than be unsupervised after 10 years; the crime will not be erased from her record (if she ever winds up in adult court again) if she is crime-free for five years after a youth sentence would end; and finally, the penalty will be commensurate with the terrible crime she committed. To steal a young teenage girl’s life from her for no other reason than some twisted self-gratification is monstrous, and requires a strong response that demonstrates the value this society puts on life (“Cold Blood and Adult Penalties” 2009).

The Judge’s Decision

On July 28, 2009, after a three-week jury trial and a one-week sentencing hearing in which two psychiatrists testified about their examinations of her, M.T. was sentenced by Justice Ian Nordheimer as an adult for manipulating her boyfriend into killing Stefanie Rengel. She lost her anonymity and was identified as Melissa Tordorovic.

Psychiatrists indicated that Todorovic’s personality would not be fully developed until she was in her mid-twenties. Until then, they were reluctant to make a diagnosis. And, absent a diagnosis, let alone treatment, her future dangerousness was unknowable and unpredictable. The judge said that the sum of psychiatric evidence was that there was “some risk of a repetition of this conduct. While the precise degree of risk is unknown, the nature and extent of Melissa’s role in this incident is cause for concern.”

Justice Nordheimer said that “the puppet master is more culpable than the puppet.”

The Sentencing of D.B.

On September 17, 2009, Stefanie Rengel’s actual killer was sentenced. The youth had pleaded guilty to first-degree murder in April 2009.

D.B. was four days short of his eighteenth birthday when he stabbed Rengel on January 1, 2008. The timing was crucial. An adult committing the same crime would receive an automatic life sentence with no parole for twenty-five years. “He bought himself 15 years right off the top,” noted crown attorney Robin Flumerfelt, who emphasized the planning that had gone into the murder. “This had been planned and deliberated for months,” said Flumerfelt. “It was not an impulsive act. It was a calculated scheme.”

Stefanie Rengel’s thirteen-year-old brother, Ian, made a victim impact statement at the hearing. He said, “Being four days shy of eighteen shouldn’t mean automatically knocking fifteen years off the sentence for first-degree murder. My sister Stefanie didn’t even get to live fifteen years.”

Judge Ian Nordheimer sentenced D.B. as an adult. He has now been identified as David Bagshaw, and his photograph has been released (Blatchford 2009c; 2009d; 2009f; “Cold Blood and Adult Penalties” 2009; “Evil Must Be Taken Into Account” 2009; Small 2009; “Teen Guilty of 1st-Degree Murder in Death of Stefanie Rengel, 14” 2009).

References and Further Reading

* Cited by the Supreme Court of Canada.

Alphonso, Caroline. 2008. “Youth Violence Tied to Racism, Report Says.” Globe and Mail, November 14.

Anand, Sanjeev S. 1999. “Catalyst for Change: The History of Canadian Juvenile Justice Reform.” 24 Queen’s Law Journal 515.*

Appleby, Timothy. 2008a. “Youth Homicides Up 3 Per Cent in 2006.” Globe and Mail, May 17.

_____. 2008b. “Report Seeks $100-million for Youth Programs.” Globe and Mail, November 14.

_____. 2009a. “Police Presence in High Schools Makes the Grade.” Globe and Mail, February 5.

_____. 2009b. “Sentenced to Life, Gunman in Creba Slaying Unmasked.” Globe and Mail, April 25.

Bala, Nicholas. 1990. “Dealing with Violent Young Offenders: Transfer to Adult Court and Bill C-58.” 9 Canadian Journal of Family Law 11.*

_____. 1994. “The 1995 Young Offenders Act Amendments: Compromise or Confusion?” 26 Ottawa Law Review 643.

_____. 1997. Young Offenders Law. Concord, ON: Irwin Law.*

_____. 2003. Youth Criminal Justice Law. Toronto: Irwin Law.*

Bala, Nicholas, and Mary-Anne Kirvan. 2000. “The Statute: Its Principles and Provisions and Their Interpretation by the Courts.” In Juvenile Crime and Delinquency: A Turn of the Century Reader, edited by Ruth M. Mann, 45. Toronto: Canadian Scholars’ Press.*

Blatchford, Christie. 2008. “Creba Jury Delivers Stunning Guilty Verdict.” Globe and Mail, December 8.

_____. 2009a. “How to Sentence Evil: As a Youth, or an Adult?” Globe and Mail, January 29.

_____. 2009b. “iPod Killer Gets Adult Sentence for Murder on Ottawa City Bus.” Globe and Mail, February 13.

_____. 2009c. “No Remorse, No Mercy for Teenage ‘Puppet Master’.” Globe and Mail, July 29.

_____. 2009d. “Rengel Killer Gets Life for ‘Truly Evil’ Crime.” Globe and Mail, September 28.

_____. 2009e. “A System Focused Too Heavily on the Rights of the Violent.” Globe and Mail, January 30.

_____. 2009f. “Yes, These are Teenagers, But Murder Isn’t a Phase.” Globe and Mail, July 27.

“Cold Blood and Adult Penalties.” 2009. Globe and Mail, March 24.

“Crown Seeks Adult Penalty in Creba Case.” 2008. Globe and Mail, December 11.

Department of Justice. A Strategy for the Renewal of Youth Justice. Ottawa, 1998.*

DiManno, Rosie. 2009. “Creba Killer Gets Life — and a Name.” Toronto Star, April 25.

Doob, Anthony, and Carla Cesaroni. 2004. Responding to Youth Crime in Canada. Toronto: University of Toronto Press.*

Doob, Anthony N., and Michael Tonry. 2004. “Varieties of Youth Justice.” In Youth Crime and Youth Justice: Comparative and Cross-National Perspectives. Chicago: University of Chicago Press.*

Doob, Anthony, Voula Marinos, and Kimberly N. Varma. 1995. Youth Crime and the Youth Justice System in Canada: A Research Perspective. Toronto: Centre of Criminology, University of Toronto.*

“Evil Must Be Taken Into Account.” 2009. Globe and Mail, July 29.

“Man, 20, Guilty of 2nd-Degree Murder in Jane Creba Shooting.” 2008. CBC.ca, December 8.

Manson, Allan. 2001. The Law of Sentencing. Toronto: Irwin Law.*

“Regina Teen Sentenced as Adult in Good Samaritan Killing.” 2008. Globe and Mail, November 28.

Rushowy, Kristin. 2007. “Last Spring’s Slaying of Jordan Manners, 15, Was Catalyst for Change at Troubled High School.” Toronto Star, December 26.

Sachs, Susan. 2008. “Report on Young Offenders Spurs Controversy in France.” Globe and Mail, December 15.

Seymour, Andrew. 2008. “Man Found Guilty of First-Degree Murder in Oatway Killing.” Ottawa Citizen, November 28.

“Sleight-of-Hand at the Supreme Court.” 2008. Globe and Mail, May 17.

Small, Peter. 2009. “‘No Sex Until Deed Done,’ Rengel Trial Told.” Toronto Star, March 20.

Sprott, Jane B. 1996. “Understanding Public Views of Youth Crime and the Youth Justice System.” 38 Canadian Journal of Criminology 271.*

_____. 1998. “Understanding Public Opposition to a Separate Youth Justice System.” 44 Crime and Delinquency 399.*

“Steinke Found Guilty of First-Degree Murder.” 2008. Globe and Mail, December 5.

“Teen Gets Maximum Sentence for Medicine Hat Killings.” 2007. CBC.ca, November 8.

“Teen Guilty of 1st-Degree Murder in Death of Stefanie Rengel, 14.” 2009. CBC.ca, March 20.

“Teen Sentenced as Adult in Michael Oatway Murder.” 2009. CTV.ca, February 12.

Chapter 3

Bullying:
Degrees of Harm

Bullying is unwanted, aggressive behaviour that involves an imbalance of power between the bully and victim. It is an attempt to inflict intentional harm on another and it may occur repeatedly. Often that attempt is carried out in a series of acts, such as harassment on the Internet (cyberbullying). Often, the acts of harassment are carried out by a group formed for that purpose. The end goal, as noted, is to inflict harm — to see the target hurt.

Bullying often takes place at school as a manifestation of problems germinating both outside and inside the school. A large number of youth are bullied: estimates indicate that one in five Canadian children are victims of bullying, and one in twelve students find themselves harassed on an ongoing basis. (http://www.child-abuse-effects.com/child-abuse-statistics.html)

Most young bullies are never brought before the criminal justice system. Some become known to parents and school authorities, who implement their own sense of what “justice” requires — such as an open assembly discussion or even school expulsion. Also, more family doctors (and pediatricians) are becoming involved in preventive bully action plans.

The school system itself has on occasion been implicated in bullying behaviour — such as at sporting events where some players see an open invitation to punish the opposition. The line between what society will permit and what the criminal law will condemn can be crossed. We will discuss one high school sporting event that resulted in the death of a player. The central question then became: What was the role of the criminal law where the act, resulting in death, took place on a playing field during a school event?

Other laws have been enacted that are designed to curb young offender behaviour, such as Ontario’s Parental Responsibility Act. This act states that under certain circumstances, parents of young offenders who (often as part of a group) have damaged or destroyed property may be taken to small claims court and held accountable up to $6,000. We will set out similar laws in other jurisdictions and the measure of their effectiveness in combating youth crime.

Among the questions raised in this chapter are:

Is there always a rational explanation for bullying?

How do students respond to bullying among classmates?

What is the responsibility of parents for their children’s delinquency?

Should cyberbullying be a criminal offence?

The Murder of Reena Virk

On November 14, 1997, Reena Virk, age fourteen, was lured to a quiet park in Victoria, British Columbia, where she was swarmed, brutally beaten, and killed by a group of seven girls and one boy, aged between fourteen and sixteen. Her body was found a week later submerged in water under a bridge. The cause of death, according to the pathologist, was not drowning. Rather, it was the beating and the injuries she had sustained, which the pathologist testified, were similar to “those which would result from a car being driven over a body.”

The autopsy was able to determine that Virk had been kicked in the head eighteen times and beaten about the body so severely that tissue was crushed between the abdomen and the backbone. The attack itself came in two stages. First was a severe beating from which Virk tried to flee. She was caught and dragged underneath a bridge. There, the second phase of the attack took place. Her forehead was burned with a cigarette. Attempts were made to cut her hair. Her head was held in the water, and there was evidence that one of the group delivered a karate chop to Virk’s windpipe.

Reasons for the Attack

It was clear that some of the attackers were angry with Virk. One teen claimed that Virk had spread rumours about her. Another said that Virk had sex with her boyfriend. But, for all the investigation and the trials that later occurred, there was no single reason for the swarming. It is questionable that Virk willingly would have gone to meet the other teens if she had reason to fear for her safety.

The Leaders of the Attack and Their Trials

According to the evidence, fifteen-year-olds Kelly Ellard and Warren Glowatski led the attack. Both were bound over to adult court for trial. Neither had any long-term relationship with Virk; based on the evidence, their relationship with Virk could be called brief, at most. Glowatski was tried first, and he was found guilty of second-degree murder. He was given a life sentence with the possibility of parole no earlier than seven years thereafter.

Glowatski had been abandoned by his father, and his mother was an alcoholic. He lived with a friend and was described as “mean,” especially when he was drunk. Glowatski described himself as a gang member. He was called upon to testify at Ellard’s trial, but he refused to do so. His reason: His sentence was under appeal. And perhaps more to the point, he feared for his own life if he testified.

Ellard was seventeen at the time of her first trial, which concluded two years after the fatal attack on Virk, and was found guilty of second-degree murder. She was given a prison sentence in April 2000 that made her eligible for parole in five years. At the time of sentencing, the trial Justice Nancy Morrison said:

Kelly, you are young and intelligent and you have a wonderful family.… They believe in you and I can only say that you should never let them down.… You owe it to Reena Virk to live a life that is exemplary and you owe it to yourself.… Kelly has an overwhelming love of animals. She is gentle and caring with them. She is a gentle and shy person. She has never been in trouble, before or since.… She may have a chance to become a worthwhile and productive citizen.

Ellard had no history of trouble with the police or the youth court. Yet the evidence of her role in the attack on Virk included this testimony: It was Ellard who crushed a lit cigarette into Virk’s forehead and punched her head at least twenty-five times. Another witness said that Ellard pushed Virk’s head into a tree and pulled her into the water and held her there (Simmons 2000).

The first trial was not the end for Ellard. Her conviction was appealed. Her defence counsel argued that the Crown’s cross-examination had been unfair, and the British Columbia Court of Appeal agreed. A new trial was ordered and it was held in 2004. The jury was deadlocked. Media reports indicated that, but for a single juror, Ellard would have been found guilty. This resulted in a third trial. The jury deliberated for five days and brought back a decision that would have sentenced Ellard to life in prison with no chance of parole until she had served seven years.

There then came another appeal from Ellard’s defence lawyers, who argued that the trial judge failed to instruct the jury properly, and that certain evidence was not given proper weight. By a 2-1 vote, the British Columbia Court of Appeal agreed, and a fourth trial was ordered. This time, however, the Crown appealed.

By an 8-1 vote, the Supreme Court of Canada restored Ellard’s conviction. Speaking for the majority, Justice Rosalie Abella said that even if the trial judge was in error, there was no reasonable possibility that it would have affected the verdict of guilty (Makin 2009).

Ellard, initially housed in a youth detention facility, has been involved in inmate assaults while incarcerated, including a group attack on a vulnerable person. At no time has she expressed any regrets to the Virk family. Having already served seven years, and now in an adult prison, she soon will be eligible for parole. In this regard, the parole officials are not required to release her. They will review her prison record, among other matters. It will be possible for her to be held in prison for several more years.

Glowatski, in the meantime, served his seven years mandatory prison term. He apologized to the Virk family and, by 2009, was on parole working in the Vancouver area.

In 2009, the Virk family, who witnessed the Ellard trials, apparently were getting on with their lives. As a way of dealing with grief, Virk’s father wrote a book about his daughter’s early years (Virk 2008). He said he wanted to “set the record straight.” Following the murder, the Virks often spoke in elementary and high schools sharing their daughter’s story. Mrs. Virk said, “Our main message is: When someone is being bullied, or you’re being bullied, speak out about it because if one person had made a phone call … things could have been very different. Kids learn from that story” (Armstrong and Makin 2009.)

The Virks’ emphasis seemed to be on preventive action — what individuals could do to stop more serious harm from occurring. It seemed that the judicial system was not central to the means for obtaining justice. Virk’s father said, after a fourth trial was ordered of Kelly Ellard (and before the Supreme Court of Canada set aside that order and restored her conviction), “I think we want to wash our hands of this now and live our life.… No more do I want to place any trust in this system.… It has become like a sad joke” (Mickleburgh 2009).

Other Trials and Sentences in the Case

The remaining six teens were tried and either found or pleaded guilty in individual youth court trials where they were charged with assault causing bodily harm. Their identities were shielded under the then Young Offenders Act. But the sentences handed down by the youth court judge were: one year, nine months, six months, one year probation, and one stayed and one conditional sentence.

There was a history of violence among the six teens. Their identity is referred to by letters, since publication of their names was prohibited:

A., age fifteen, pleaded guilty to a charge of assault causing bodily harm to another girl at the same time as sentencing in the Virk trial. At the time of the second assault, A. was taking a mandatory anger management course at her school. The reason: She had punched a fellow student. A. saw herself as a friend of Ellard and Glowatski. While Glowatski was in jail, A. accepted collect calls from him.

B., age fifteen, saw herself as A.’s best friend. B. said she was drunk the night Virk was murdered. The trial judge gave B. a choice of house arrest — if she agreed to have no contact with A. The alternative was close custody, that is, institutionalization. B. chose close custody.

C., age fifteen, thought Virk had spread rumours about her. C. lived in a group home. The trial judge said that C. had “all the elements, quite frankly, of sociopathic conduct.” C. showed no remorse.

D., age fifteen, lived in the same group home as C. She had a lengthy record of assaults, theft, and breaches of probation. She was angry at Virk for allegedly having sexual relations with her boyfriend.

E., age fourteen, had tried to set Virk’s hair on fire.

F., age fifteen, knew Virk. Apparently, she attempted to have the beating stopped. F. did this at a point when she felt Virk had “had enough.”

(Moore 2000a)

Fighting Back: Students to the Rescue

Ninth-graders from Ontario’s Keswick High School were in a heated game of speed ball in the school gym when one of the players, angry and unprovoked, shouted at his opposite number, Jack Kang: “You fucking Chinese.” He then punched him in the mouth. Jack, of Korean descent and holder of a black belt in tae kwon do, responded with a punch that broke his assailant’s nose. (Jack’s father was a master of tae kwon do, and Jack himself taught children at his father’s studio.)

The assailant, bloodied, dropped to his knees. Jack tried to comfort him. Both boys apologized, but that was not the end of the matter. Police school resources officers laid an assault charge against Jack the morning after the fray. They did so without interviewing witnesses, though they were aware of the racial slur — a matter that they simply put aside.

Police visited the home of Jack’s assailant. Both the boy and his father said they didn’t want to press charges because they didn’t want to “ruin anyone’s life.” (Both boys were honour students with 90 percent averages.) Still, charges were laid. Further, the school principal suspended Jack and, in a letter, stated that he would recommend his expulsion from all schools in the region.

A meeting was arranged. Jack and his classmate were present. Apologies again were made and they shook hands. The principal cancelled his suspension order and expunged the suspension notice from Jack’s record. He also withdrew the recommendation that Jack be expelled from any regional high school, stating that the letter had been sent in error.

Student Response

Students at Keswick High School were aware of the incident and the discipline meted out. They responded by staging a walkout — four hundred students marched from the school protesting the criminal charge against Jack.

The student response got the attention of the media and, through it, the chief of police, Armand La Barge. He ordered another investigation under the direction of a senior hate crimes police unit. Thirty-five witnesses were interviewed. At a large media gathering called by La Barge, he stated that the initial investigation was not “as detailed as it could have or should have been.” He recommended to the Crown that the charge against Jack be dropped. It was an action that the police themselves, in law, could not take.

The Crown agreed with him, and in open court, the charge against Jack was dropped. At one point, Jack’s father, uneasy about the incident, thought of leaving the community. After the response of the students, and the reaction of the police and school, he decided to stay. He accepted the good wishes of the mayor who personally welcomed Jack’s family to the community.

Jack’s immediate community, at least in terms of the incident, was his school. His classmates were aware of the incident. They assessed the facts and acted quickly, and their action brought a peaceful and effective resolution. Jack and his classmate cannot be said to be friends. But it can be said that they are able to get along with each other (Friesen 2009a, 2009b; Swainson 2009).

Rugby: Bullying and Manslaughter

The rugby game on May 2007 between two Mississauga, Ontario, high schools was heated. Manny Castillo, age fifteen, was the captain of his team from Lorne Park Secondary School. There was real competition between Castillo and a player from the opposing school — a major junior hockey player with an Ontario Hockey League team who had ambitions for professional status. Words were exchanged.

At one point, Castillo’s opponent picked him up, flipped him, and drove him head-first into the ground. A referee testified that the opponent boasted that he had pile-driven Castillo as hard as he could. Castillo lay motionless on the ground. He died in hospital a few days later from head and spinal injuries.

Charged and Tried

Castillo’s opponent, whose identity could not be revealed under the Youth Criminal Justice Act, was charged and tried for manslaughter. Defence lawyers argued (1) self-defence, as Castillo had a choke-hold that the accused simply tried to break, and (2) that Castillo assumed the risk of injury when he became part of the game.

Ontario Justice Bruce Duncan heard the evidence and rejected the defences. He found the accused guilty of manslaughter. Players, he said, must obey the law and the codes for the conduct of games, including such contact sports as rugby. The response of the accused was in retaliation for the briefly held head-lock. Reading from a twenty-eight-page decision, Justice Duncan stated:

The playing field is not a criminal law free-zone. The laws of the land apply in the same way as they do elsewhere.… There was no justification in self-defence. Accordingly, the defendant committed an assault, an unlawful act. That unlawful act caused death. The defendant is therefore guilty of manslaughter.

The force applied by the defendant was not within the rules of the game.… Dangerous play inside or outside the rules is not acceptable.… The defendant intentionally applied force that was outside the rules of the game or any standard by which the game is played. Manny did not explicitly consent to that force, and I am satisfied beyond any doubt that no such consent can be implied.

Sentenced

The Crown sought a two- to three-year sentence, opting not to seek an adult sentence. The defence sought a one-year probation.

On July 6, 2009, the Mississauga youth was sentenced to one year’s probation, anger management counselling, and one hundred hours of community service. Castillo’s father did not comment on the sentence but handed out copies of the victim impact statement he had delivered that morning in the hope that its message about organized sports would be communicated to the public. In the statement, he said, “I hope that organized sports, especially organized sports in schools, puts a no tolerance policy in place for violence and aggression in sports” (Cheney 2009; Mitchell 2009; Peat 2009; “Teen Guilty of Manslaughter in Rugby Death” 2009).

CHALLENGE QUESTION

The Effect of a Manslaughter Conviction on a School Sport

Q: Does the manslaughter conviction influence how rugby is to be played at the school level?

The rugby case was one of the Crown against a single person charged with violating the Criminal Code. The accused was found guilty. That was the end of the matter so far as the Crown’s case under the Criminal Code was concerned. But schools, players, and parents were left asking how the conviction would affect the sport at the school.

Kieran Crowley, Rugby Canada head coach, said he had never heard of a death in rugby play prior to the incident involving Manny Castillo. Indeed, Doug Crosse, spokesperson for Rugby Canada, added that the manslaughter conviction would “confirm a lot of incorrect suspicions about the game.” (The suggestion seemed to be that rugby might be seen as a game without rules.)

On the other hand, the verdict was seen by some as a way of realigning what should be the mark of acceptable athletic behaviour. Clayton Ruby, a lawyer recognized as a civil rights expert, said of the manslaughter conviction, “Some athletes have a skewed perception of acceptable behaviour. They think violence is part of sports, and these guys get away with it on a regular basis. A case like this serves notice” (Cheney 2009).

New Rules and Their Enforcement

Educational authorities who allow school athletic competitions and set the rules for play and their enforcement are apparently reviewing the conviction handed down by Justice Duncan. Al Wolch, a former coach and, at the time of his quoted comments, a superintendent with the Toronto District School Board, said the decision of Justice Duncan will result in “significant” policy review concerning school athletics:

We see incidents and injuries all the time — undercuts in basketball, kids running others to the boards in hockey and other episodes in football.… We have to look at educating better, but we also have to understand the people coaching are volunteers. Both have to go hand in hand or we may be better off not having certain sports.… We’re always reviewing regulations. As you look at danger, you need to make sure coaches, responsible for these students, are qualified in theory as well as the technical and practical side (Grossman 2009).

In fact, the coaches and referees are much like the “police” on the field. The coaches can influence how the game is played, and the referees can enforce rules to prevent certain kinds of violence.

The Doctor and Unasked Questions

It was a routine physical for the fifth-grade boy. The doctor was one the boy had known, and trusted, for several years. Toward the end of the examination, the doctor casually asked the boy his favourite subject. The answer: science. His patient had even won a prize at a science fair and was to go on and compete in a multischool fair.

But the boy was unhappy. He was being teased, jostled, and even occasionally beaten up by other students because of his success at the science fair. This was not a one-time event, but an ongoing pattern that could only be called bullying. The boy’s mother wondered whether life wouldn’t be easier if her son “just let the science thing drop.”

The doctor had a sense of personal outrage. After all, he was a person of science, and he had worked hard to practice as a medical doctor.

Prescription

The doctor encouraged the boy’s mother to call her son’s teacher and complain. And, he encouraged the boy to continue his love of science.

On reflection, the doctor noted what he did not say to his patient or to the boy’s mother:

And here are three things I now know I should have done: I didn’t tell the mother that bullying can be prevented and that it’s up to the school. I didn’t call the principal or suggest that the mother do so. And, I didn’t give even a moment’s thought to the bullies, and what their lifetime prognosis might be.… Research has described long-term risks — not just to victims, who are more likely than their peers to experience depression and suicidal thoughts, but to the bullies themselves, who are less likely to finish school or hold down a job.

So what should I ask at a checkup? How’s school, who are your friends, what do you usually do at recess? (Klass 2009)

What the doctor suggested, as a part of routine examination, was greater medical involvement — of talking not only with his young patient’s parents, but also with their teachers and principal. In effect, the doctor becomes part of a program to change the culture of a school. The doctor attempts to put in motion the kind of ongoing inquiry to get the facts of bullying and then to address those facts not simply in terms of the victim, but also, and perhaps more importantly, activating the bystanders who in the past simply watched the harassment and walked on [emphasis added].

CHALLENGE QUESTION

A Doctor’s Time

Q: In the average appointment time of fifteen minutes, how can a doctor examine a patient, ask the questions relevant to bullying, and follow up if a problem is spotted?

Pediatricians and family doctors — indeed most physicians — have busy practices. Most physicians make a living as a result of the number of patients they see. Their time is limited. As a practical matter, it is difficult for a doctor to give any one patient more than a fixed amount of time.

Many medical schools specifically train doctors to be attuned to their patient’s health through observation — questions as well as tests. Indeed, one hurdle the medical student must jump in Toronto (as in other medical centres) is to diagnose a test patient within fifteen minutes. Many medical students fail the test. Others identify accurately the problem within five minutes.

Five minutes would hardly suffice if the doctors were in practice. There would be tasks of prescribing, perhaps seeking specialist help, and asking the patient to return to see how the treatment is progressing. Identifying a bullying problem is not the same as developing a specific response and then following up to see that the problem has been resolved.

In June 2009, the American Academy of Pediatrics updated and expanded its policy on bullying. It suggested doctor involvement with, among others, parents and schools. It also developed readable brochures addressing specific aspects of bullying that doctors could place in their waiting rooms.

The following, taken from an introductory brochure, is a warning and a challenge, especially to parents who come with their children for a pediatrician check-up:

While bullying has received increased media attention, there are still many misperceptions of this problem and its solutions.

Bullying is different than fighting or teasing. It is repetitive, negative actions by one person or persons against chosen victims.

There are three groups of children involved: bullies, victims, and bystanders.

Bullying prevention is a highly researched and well-proven area of violence prevention. The social dynamics of bullying are similar in most settings — bullies begin the school year by picking on a large number of children. Those children whose emotional responses gratify the bullies become the chosen victims for the year. Victims are smaller and weaker (boys) or more socially isolated (girls) than the bullies. Since harassment rarely occurs overtly in the classroom, teachers may be slow to recognize the dynamics of bullying or to prevent it. Thus, parents should be counseled to discuss bullying prevention with school guidance counselors or administrators. While victims may be more likely to seek medical attention, long-term studies demonstrate that the poorest outcomes are among bullies themselves. Children labeled by their peers as aggressors or bullies at age 8 are more likely to end up incarcerated and are less likely to be steadily employed and in stable long-term romantic relationships by the time they reach age 30. Consequently, bullying prevention programs have a long-term benefit for both bullies and victims.

How to Use This Tool

Since parents and children are concerned about bullying, leave this brochure in the waiting room.

Ask the parents: ‘Is your child picked on in school?’ When you discover a child is being picked on, discuss the specific strategies with parents. Parents should be advised to discuss bullying with the school guidance counselor and/or principal.

This brochure is particularly useful as a handout for school and community groups.

When faced with a child who has an unusual new onset of school phobia or attention problems, gently probe about being picked on or teased before, during, or after school. This child may have difficulty focusing on class work, be reluctant to attend school, or have a variety of psychosomatic conditions.

Victims often internalize the criticism of bullies and feel that they deserve the teasing and may be ashamed.

When the school has alerted parents that their child is aggressive or a bully, insist that the child receive counseling and that the parents take the issue seriously.

When giving this brochure to their parents, note that bullies, especially male bullies, are at a high risk for poor long-term outcomes unless the bullying is stopped at a young age.

The reason why certain students become victims is not always as clear as the Academy might suggest. Sometimes it is simply a matter of happenstance. Sometimes they are chosen simply because they are, for example, new to the school. But this much is certain: they are unable to defend themselves from the taunts of others.

A central questions remains: How can schools establish an anti-bullying environment? A roving school police officer, like a constable on patrol (cop), might lessen the urge for violent behaviour. But, as we shall see, it will do little to thwart such harassment as cyberbullying. In a major article in Pediatrics, the journal of the American Academy of Pediatrics, the authors spoke of the role of teachers as an anti-bullying force:

Teachers play a key role in preventing and intervening with bullying at school, yet they receive little if any help or training in how to effectively deal with such problems. They lack information, and they are reluctant to intervene when they witness bullying. Although teachers have the benefit of understanding the social context of bullying, they do not necessarily know how to best use this knowledge to intervene. In school settings, bullying and victimization are often considered as personal problems of individual youth rather than problems requiring a collective response. Therefore, it is essential: (1) to educate teachers about ways in which schools can alter social norms toward bullying; (2) to assist them to intervene effectively with incidents of bullying; and (3) to work together with clinicians to deal with the symptoms of bullying and victimization (Juvonen 2003).

CHALLENGE QUESTION

Parental Responsibility

Q: What responsibilities should the law impose on parents in guiding and supervising their children?

Recognizing that citizens can influence the kind of laws enacted, what should be the public policies made into law affecting parents in their child-raising responsibilities?

In 2000, a new Ontario law expanded parental responsibility for property damage done by their children (those under eighteen). Under the law, it is assumed that such property damage was intentional — unless the child’s parents can prove otherwise. The parent must also show that he or she made “reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.” The victim’s remedy is through an action in small claims court with an upper limit of recovery of $6,000. To initiate such a suit, court fees of between $50 to $100 must be paid.

Manitoba has a parental responsibility law, but it is not one that sets up a presumption that the damage done by the child was intentional. And it should be noted that Ontario has had a law that declares that in “damage to property or for personal injury or death caused by the fault or neglect of a child who is a minor … the onus [burden] of establishing that the parent exercised reasonable supervision and control over the child rests with the parent” [emphasis added].

Of the law, the Globe and Mail concluded, editorially:

The parent must show that he or she made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage. And, what are reasonable efforts? The law offers hints: attending courses to prove parenting skills, and seeking professional assistance for the child designed to discourage activity of the kind that resulted in the loss or damage.… Does this mean the usual advice and remonstrations of parenthood will count for little if parents haven’t been to courses or sought professional assistance? …

The Ontario government clearly hopes to kill two birds with one stone: to make it easier and faster for victims of malicious damage to receive compensation, and to force willfully negligent parents of young terrors to more actively monitor and address their children’s misbehaviour. But the wording of the new law appears to put a greater, vaguer and unfair onus on all parents of children who damage property, and to encourage judicial inconsistency as the already overburdened courts try to figure out where to draw the new dividing line of liability (“Who’s a Bad Parent, Then?” 2000).

The reality of parental control was noted by Anthony Doob, Centre of Criminology, University of Toronto, and Jennifer Jenkins, Department of Human Development and Applied Psychology, University of Toronto:

Canadian survey evidence from a representative sample of 10-year-olds and 11-year-olds suggests that it is a minority of parents who know about the misbehaviour of their children. In one study, only 30 percent knew their children had been questioned by police. As for children who reported that they had skipped school, only 20 percent of the parents knew this. Adolescents work hard at keeping their parents ignorant of certain aspects of their lives (Doob and Jenkins 2000).

Other Approaches: The United States

Truancy Control

Public school officials and prosecutors in a number of states are working together to fight truancy by holding parents criminally responsible through a fine and/or jail. The problem of truancy is often seen as acute. In 1998, for example, 63,000 of Detroit’s 180,000 public school students missed more than a month of classes. Parents of sixty-seven of the worst offenders were called in by officials and warned that they could be jailed if they did not get their children to school. In February 1999, six mothers in Springfield, Illinois, were charged with a misdemeanour for improperly allowing their children to miss school. They were liable for $500 fines and thirty days in jail (Meredith 1999).

Criminal Responsibility

Oregon enacted a law in 1995 allowing parents to be held criminally liable for the delinquency of their children. This could mean fines, jail time, or mandatory parenting courses. The law resulted from experience with an ordinance of Silverton, Oregon, where a curfew for young people had been in effect. The Silverton police chief, Randy Lunsford, said of the ordinance, “I don’t think we’re telling people how to parent. We’re just giving them a tool to become better parents, trying to get at some of the parental apathy and neglect” (Egan 1995).

Crime Data on Young Offenders

The individual stories of violent youth crime can be alarming. The Reena Virk story was one that remained in the media for the better part of a decade. But, there are other stories that go beyond the young preying on each other.

Residents of a Montreal North community, long seen as safe, were jolted when a sixty-seven-year-old woman was assaulted at a bus shelter late on a May night in 2009. She was attacked by three boys aged fifteen to sixteen. They beat here savagely — all apparently only for the purpose of taking her purse. Two of the three assailants were later captured by police. They faced possible aggravated assault charges.

Many residents of the area were frightened. They questioned whether they should change their pattern of living — whether it was safe to go out at night (Marotte 2009).

Yet, youth crime is not on the rise — at least according to 2006 Statistics Canada data. The homicide rate for those twelve to seventeen was three per 100,000 in 2006. This broke down to eighty-four young people charged in fifty-four killings. Statistics Canada noted homicides were responsible for just .05 percent of overall youth crime and less than one percent of all violent crimes in which a weapon was present in 2006.

This is not to say that youth crime is at minimal levels. It is only to say that, relative to years past, youth crime has not shown any significant increase. Putting aside traffic offences, about 180,000 young people were involved in some Criminal Code violation in 2006. Youth violent crime increased 30 percent from 1991. About 80 percent of such crimes involved common assault, the least serious of that kind of offence.

Does the data warrant laws that toughen the criminal sentencing provisions for youth? Nicholas Bala, professor of Youth Justice Law at Queen’s University, said youth crime must be taken seriously. He added, however, that there are other approaches that might be more effective, such as improving access to mental health programs and youth employment programs. Professor Bala said that, “these kinds of programs are actually changing the lives of young people” (Bala 2009).

The overall rate of youth crime was down 6 percent compared to a decade earlier and 25 percent since the peak year of 1991. The rate climbed 3 percent between 2005 and 2006 (Lawrence 2008).

YOU BE THE JUDGE

A Matter of Sentencing: Deterrence?

The Facts

John, age sixteen, had been found guilty of aggravated assault. He had been tried before a judge alone. The facts seemed clear. John had been a gang member since he was twelve.

To be initiated as a gang member, John had to rough up two seniors. It didn’t matter that they gave him whatever valuables they had without resistance; they had to be beaten up. No mercy was to be shown. That was the gang’s mandate for membership.

John met the gang’s requirements. In a period of three years, he had assaulted and seriously injured seven seniors. His net cash return was slightly more than $85, but from his point of view, the minimal return didn’t matter. He had done what was expected of him. He rose in the ranks of the gang. He was held up as a “model” for incoming gang recruits.

Police eventually caught up with John. His seventh victim, a ninety-year-old retired teacher, was able to describe him as her assailant. At John’s trial, a number of his fellow gang members turned out in support.

At the time of sentencing, the judge stated:

I have a range of sentencing I can impose for your crimes.… But, I must centre the fact that you are a gang member and that your crimes were designed to further your gang’s activities.… I think it necessary to consider the need to impose a sentence that falls at the more severe end of the sentencing scale.… Your sentence hopefully will serve to deter others, including your gang, and yourself from ever committing such crimes in the future.

The Issue

Can deterrence be a factor in sentencing?

Points to Consider

John was deemed a youth within the meaning of the Youth Criminal Justice Act (YCJA).

However, he was tried before a judge alone. He could have elected for trial by jury.

Nothing in the YCJA refers to deterrence as a consideration in sentencing, though the provisions for sentencing are substantial.

The Crown argued that (1) the judge had an inherent right to consider deterrence in sentencing and, (2) in any event, deterrence should be implied as a consideration in sentencing.

Throughout his trial, and at sentencing, John did not indicate any remorse for the crimes he committed.

Discussion

The youth court judge was wrong. In a unanimous decision, the Supreme Court of Canada ruled that deterrence cannot be considered as an element in sentencing under the Youth Criminal Justice Act (YCJA). The decision, written by Justice Louise Charron, was based exclusively on an interpretation of the YCJA.

That is, the Court attempted to determine the meaning of the YCJA as applied to the question of deterrence. The Court did not try to determine whether deterrence was a worthwhile goal in youth sentencing. It made this determination both in terms of general deterrence and specific (or individual) deterrence. It did not matter whether the youth court sought to use deterrence as applied to the community, or deterrence as it might relate to the accused — preventing him from committing crime again.

Justice Charron stated, in part, that:

Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called “specific deterrence,” when directed at others, “general deterrence.” The focus of these appeals is on the latter.

General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.

While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not. Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidence that it actually works in preventing crime. Those who advocate its retention are equally firm in their position and, in support, point to society’s reliance on some form of general deterrence to guide young people in making responsible choices on various matters, for example, about smoking, using alcohol and drugs and driving a motor vehicle.

The question whether general deterrence works or not is not the issue before this Court. Whether the principles for youth sentencing should include deterrence was a matter of considerable debate in the passing of this new legislation. Ultimately, the repeal or retention of deterrence as a principle of sentencing for young persons is a policy choice for Parliament to make. This Court’s role on these appeals is to interpret the relevant provisions of the YCJA so as to determine what choice Parliament in fact made.

The YCJA introduced a new sentencing regime. As I will explain, it sets out a detailed and complete code for sentencing young persons under which terms it is not open to the youth sentencing judge to impose a punishment for the purpose of warning, not the young person, but others against engaging in criminal conduct. Hence, general deterrence is not a principle of youth sentencing under the present regime.

Specific Deterrence

Justice Charron continued, addressing the matter of specific, or individual, deterrence:

The YCJA also does not speak of specific deterrence. Rather, Parliament has sought to promote the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done.

Undoubtedly, the sentence may have the effect of deterring the young person and others from committing crimes. But, by policy choice, I conclude that Parliament has not included deterrence as a basis for imposing a sanction under the YCJA.

Justice Charron seemed to draw a line between the YCJA goal of rehabilitation of the young offender and specific deterrence. It is rehabilitation that the YCJA is directed toward, not specific deterrence.

Cyberbullying: Wounding from Afar

A high school sophomore had a crush on a boy who showed no interest in her. Angrily, she turned to the Internet and sent an email to her friend. It contained a racist comment about the boy. The friend forwarded the message to the boy, who forwarded it to his friends.

The sophomore felt she had done no more than confide in a friend. But her email was instantly conveyed to much of the student body, and its contents became a subject for talk, gossip, and ridicule. She and her parents felt they were under pressure, and she left the school.

A parent, who was also a lawyer, said, “If she had said those offensive things to her friend on the phone, I have a feeling the friend wouldn’t have called [the boy] and repeated what she said, and even if she had, I doubt it would have had the same effect” (Harmon 2004).

Spewing Hate

At an elite boys’ private school, a grade 10 student set up a chat board, open only to his classmates and grade 10 students at two other private schools, one of them a girls’ private school.

However, it was not long before the chat board was hijacked by other students who started their own cyber rooms on the site with names such as “The Reichstag” and “Gas Chamber.” Photos were posted of Nazi rallies and of Nazis torturing Jews. The Holocaust was glorified. (Yet, it should be noted that the site sent other messages that had no hate content.)

A student from the girls’ private school became aware of the website. She and three of her classmates looked at it and posted a note to the server asking that the hate-filled content be removed. The response: The girl who initiated the complaint was called a “hook-nosed parasite” who “should be thrown into an oven with the rest of them” (Teotonio, 2004).

Investigation suggested that students running the hate site were not actually animated by anti-Semitism. (Indeed, one of the hate site managers was Jewish.) Rather, it might have been, as another student suggested, that the hate dispensers thought it was “funny to outdo one another by making grossly politically incorrect statements” (Alphonso and Friesen, 2005).

Bullying Outside School: Action and Reaction

The messages described were not sent from school computers. The boys were students, but the questioned computer activity was done at home. Still, the schools, their student bodies, and the faculties got involved. (Indeed, the popular media reported the story.) The boys’ school principal said, “I think in this particular case, given the severity of what we were dealing with, rather than hide behind the attitude of ‘well, we’re going to leave this to parents and it’s their issue’ … we just felt that there was a moral and an ethical reason to get involved in this.”

The female students went to their parents, and to their principal who praised them — and did so in front of an assembly of students. (They also went to the computer server, reported the incident, and asked that the site be closed. Within hours the site was closed.) The girls’ school principal said to her students in one of several assemblies,

We want girls to have a voice.… We encourage you to take a stand and not be afraid to make a difference.… Four girls at [this school] also decided that they would not be bystanders last week, and we are proud of their courage in coming forward to do something about unacceptable material on a student-created website.…

When you hear of a fellow student being deliberately excluded, ridiculed or called names, or when you hear unkind rumours about someone, it is not a joke.… Each of you can play your part to make sure that, as a community, we do not tolerate bullying of any kind (Black, 2005).

The boys’ school principal also acted quickly. He expelled three boys for either posting offensive photos or for the hate reply sent to the girls. He suspended four other students for not stopping what they saw happening. The suspensions were from two to four days. The expulsions were for the remainder of the school year. Any attempt on the part of those expelled to return, the principal said, would be subject to school review.

The Toronto Star wrote that the incident had a broader lesson in terms of prejudice and tolerance. Editorially, it stated:

Of course, some might argue, kids will be kids. That sometimes means acting impulsively and foolishly. But that does not mean that students who posted the images and messages should be let off lightly for their abhorrent expressions of hate. While the students, one of whom is Jewish, apparently did not commit the odious acts on school property, the schools have dealt with the incident swiftly and appropriately.

[The boys’ school] has expelled the boy who posted the photos and the two boys who responded to [the girls’] complaints. Both schools have also held assemblies to educate students about anti-Semitism. That sends a message to all students at these schools that anti-Semitism will not be tolerated. It is the right message.

The incident also reminds us that Canadians must remain vigilant against expressions of hate.… Tolerance must be nurtured both at home and at school. Children must learn the troubling histories of the Holocaust, the slave trade, the internment of Japanese Canadians during World War II and other human-rights atrocities. More important, we all must be ready to stand up to bigotry and racism, wherever it confronts us (“Standing Up to Hatred,” 2005).

The Criminal Law and Cyberbullying

Cyberbullying has not been made a criminal offence. Current laws do not provide police with all the tools needed to investigate online harassment. Such was the position taken in 2008 by the Canadian Teachers Federation (CTF). Emily Noble, CTF president, stated:

We feel there’s not enough teeth in the Criminal Code right now for cyberbullying.… A lot of people get on the electronic medium and think they can send whatever emails they want and they’re anonymous. The reality is we need to take responsibility and care for each other. We all have to treat each other with respect.

The internet is the new playground. So let’s get some ground rules in terms of how we treat each other. Teachers would like to know they’ve got some backup, and they’ve got some support from parents, the community and decision-makers (Mahoney, 2008).

Applying the criminal law to web harassment, however, has some difficulties, especially as it relates to those under the age of eighteen. Contrary to what cyberbullies may believe, tracing their identities is possible. The difficulty comes from their youthful status under the criminal law. The Youth Criminal Justice Act might treat the intimidation or threatening of another as an offence. But the young offender’s identity, for the most part, would be protected.

A Media Awareness Network Survey in 2005 found that 34 percent of Canadian students had been bullied, and 27 percent of those bullied were threatened over the Internet:

The anonymity of online communications means kids feel freer to do things online they would never do in the real world. Awareness Network research from 2005 shows that 60 percent of students pretend to be someone else when they are online. Of those, 17 percent do so because they want to “act mean to people and get away with it.” Even if they can be identified online, young people can accuse someone else of using their screen name. They don’t have to own their actions, and if a person can’t be identified with an action, fear of punishment is diminished (“Challenging Cyber Bullying.” www.bewebaware.ca/english/cyberbullying.html).

The problem may not be the need for new laws so much better police training to enforce existing laws. Such seems to be the message of Prime Minister Stephen Harper who said: “I think we’ve got to stop using the term bullying to describe some of these things. Bullying to me has a kind of connotation of kids misbehaving. What we are dealing with in some of these circumstances is simply criminal activity. It is youth criminal activity. It is sexual criminal activity. And it is often internet criminal activity” (Taber and Walton, 2013).

The reach of the law over cyberbullying could include existing offences such as sexual assault, child pornography (even when produced and shared by other minors), the sexual exploitation of children, criminal harassment (no matter what the medium), uttering threats, and intimidation.

Nick Bala, a Queen’s University law professor and expert on youth crime, says that “investigations often founder for lack of computer acumen. Police need the expertise not only to identify the individual who posted a message or photo, but those who reposted and distributed it (Makin and White, 2013).”

“Kick a Ginger Day”: Just a Joke?

In November 2008, some Facebook groups picked up the idea of “Kick a Ginger Day” to target red-haired children. Lacking any objective cause, the reason seemed to be for fun. (It may be that the “idea,” if such it may be called, came from an episode of South Park, a popular animated television show in which a character speaks to his classmates about the evils of “ginger kids.” They are called “nasty” and “born with a disease.”)

But, Kick a Ginger Day was not so much fun for the recipients. The activity spread throughout North America. In Prince George, British Columbia, a red-head was kicked eighteen times before being allowed to go on his way. In Flin Flon, Manitoba, an elementary school principal met with a worried mother concerned about the safety of her red-headed son. In Ottawa, a mother let her thirteen-year-old red-headed son stay home because he was afraid of what a day in school might bring from his class mates (Windgrove 2008).

Neo-Nazi Attacks: A German Penalty

Germany has experienced a number of violent attacks — including murders — against foreigners, many from Africa. The attacks seemed to have dated from November 25, 1990, when rightists killed an Angolan. On August 30, 2000, Judge Albrecht Hennig was responsible for sentencing three young neo-Nazis who had beaten to death Alberto Adriano, age thirty-nine, a meat packer from Mozambique. They did this because of the colour of the victim’s skin.

One of the three was an adult, the other two, sixteen years old, were sentenced as juveniles. The adult was given a life term, the most severe penalty under German law. The youths were given detention terms of nine years each, one year less than the maximum allowed under German law.

Judge Hennig stated, “[The attack] was the latest in a long series of attacks to which we must put an end.… We need the engagement of civil society.… We need a repeat of what the people in the east of our country did in the peaceful revolution of ten years ago, an involvement in the fight for what is right” (Cohen 2000a; 2000b).

References and Further Reading

* Cited by the Supreme Court of Canada.

Alphonso, Caroline, and Joe Friesen. 2005. “Jewish Pupil among Three Expelled.” Globe and Mail, May 3.

American Academy of Pediatrics. “Bullying: It’s Not OK.” http://www.aap.org/connectedkids/samples/bullying.htm

Appleby, Timothy. 2000. “Making Sure Myles Didn’t Die in Vain.” Globe and Mail, September 2.

Armstrong, Jane, and Kirk Makin. 2009. “The Reena Virk Murder.” Globe and Mail, June 13.

Bala, Nicholas. 2003. “Understanding Sentencing Under the Youth Criminal Justice Act.” 41 Alberta Law Review 395.

Barriere, Darlene. “Bullying.” Child Abuse Effects. http://www.child-abuse-effects.com/bullying.html.

Beaulieu, Lucien.1988. “From ‘Challenges and Choices’ to ‘A Climate for Change.’” In Y.O.A. Dispositions: Challenges and Choices, a Report of the Conference on the Young Offenders Act in Ontario. Presented by the Ontario Social Development Council. Toronto: Ontario Social Development Council.*

Black, Debra. 2005. “Racist Incident Offers Lessons.” Toronto Star, May 3.

Brown, Dana. 2009. “School Suspensions Over ‘Kick a Ginger’ Anger Parents.” Toronto Star, November 24.

Canadian Department of Justice. YCJA Explained. http://www.justice.gc.ca.*

_____. 1999. Youth Criminal Justice Act: A New Law —A New Approach. Canadian Department of Justice: Ottawa.

“Canada Tougher on Crime than U.S.” 2000. National Post, May 8.

Cheney, Peter. 2009. “Family, Friends Weep as Athlete Found Guilty of Manslaughter.” Globe and Mail, May 29.

“Clark Unveils Tories’ Tough Stand on Crime.” 2000. Globe and Mail, September 1.

Cohen, Roger. 2000a. “Neo-Nazis Show No Remorse at Trial, and a German Widow Is Overcome.” New York Times, August 23.

_____. 2000b. “3 Neo-Nazis Guilty of Immigrant’s Murder.” New York Times, August 31.

Cusson, Maurice. 1983. Why Delinquency? Translated by Dorothy R. Crelinsten. Toronto: University of Toronto Press.*

“Cyberbullying Should Be a Criminal Offence: Teachers.” 2008. CBC.ca, July 12.

Doob, Anthony, and Jennifer Jenkins. 2000. “Loaded Dice in the Parenting Game.” Globe and Mail, August 16.

Egan, Timothy. 1995. “If Juveniles Break Law, Town Is Charging the Parents, Too.” New York Times, May 31.

Friesen, Joe. 2009a. “As Assault Charge Dropped, Jack Was Facing Another Test.” Globe and Mail, May 14.

_____. 2009b. “Chief Urges No Charge in Schoolyard Punch-up.” Globe and Mail, May 7.

Gadd, Jane. 2000. “Making Parents Pay Won’t Work, Critics Say.” Globe and Mail, August 16.

“Getting Out of Prison.” 2008. CBC.ca, March.

Gray, Jeff. 2005. “School Probes Student Involvement in Anti-Semitic Internet Chat Room.” Globe and Mail, May 2.

Grossman, David. 2009. “Rugby Case Stirs Debate for Schools.” Toronto Star, May 29.

Harmon, Amy. 2004. “Internet Gives Teenage Bullies Weapons to Wound from Afar.” New York Times, August 26.

Juvonen, Jaana, Sandra Graham, and Mark A. Schuster. 2003. “Bullying Among Young Adolescents: The Strong, the Weak, and the Troubled.” Pediatrics 112 (December): 1231–37.

Klass, Perri. 2009. “At Last, Facing Down Bullies (and Their Enablers).” New York Times, June 6.

Lawrence, Daina. 2008. “StatsCan Reports Rise in Violent Youth Crime.” Toronto Star, May 16.

Mahoney, Jill. 2008. “Criminalize Cyberbullying, Teachers’ Proposal Urges.” Globe and Mail, July 12.

Makin, Kirk. 2009. “Supreme Court Restores Ellard Conviction in Virk Case.” Globe and Mail, June 12.

Makin, Kirk and Patrick White. 2013. “Parsons Case Provokes Larger Debate About the Law and Policing of Cyberbullying.” Globe and Mail, April 13.

Marotte, Bernard. 2009. “Teens Held in Savage Beating of Woman, 67.” Globe and Mail, May 19.

Martin, Sandra. “Murder in Victoria: Why Did Reena Virk Die?” Chatelaine, May 1998.

Meredith, Robyn. 1999. “Truants’ Parents Face Crackdown Across the U.S.” New York Times, December 6.

Mickleburgh, Rod. 2009. “Reena Virk’s Family Stunned as 4th Trial Ordered for Ellard.” Globe and Mail, September 6.

Mitchell, Bob. 2009. “Teen Guilty in Rugby Death.” Toronto Star, May 28.

Moore, Dene. 2000a. “Girls Who Beat Virk Had Long Histories of Violence.” Canadian Press, April 1.

_____. 2000b. “Testimony Virk Jury Didn’t Hear.” Canadian Press, March 29.

Peat, Don. 2009. “Probation in Rugby Death.” Toronto Sun, July 6.

Roberts, Julian V., and Nicholas Bala. 2003. “Understanding Sentencing Under the Youth Criminal Justice Act.” Alberta Law Review 41: 395–423.*

Simmons, Steve. 2000. “Teen Sentencing a Judicial Disgrace.” Toronto Sun, April 24.

“Standing Up to Hatred.” 2005. Toronto Star, May 4.

Swainson, Gail. 2009. “Charges Dropped in Racial Slur School Fight.” Toronto Star, May 13.

Taber, Jane and Dawn Walton. 2013. “Bullying Can Be a Crime, PM Says as Halifax Vigil Honours Rehtaeh Parsons.” Globe and Mail, April 11.

“Teen Guilty of Manslaughter in Rugby Death.” 2009. Globe and Mail, May 28.

Teotonio, Isabel. 2005. “Anti-Semitism on Website Has Elite Schools in Uproar.” Toronto Star, May 2.

Virk, Manjit. 2008. Reena: A Father’s Story. Vancouver: Heritage House.

“Who’s a Bad Parent, Then?” 2000. Globe and Mail, August 17.

Windgrove, Josh. 2008. “Kick a Ginger Prank Gets Police Seeing Red.” Globe and Mail, November 21.

Wingert, Pat, and John Lauerman. 2000. “Parents Behaving Badly.” Newsweek, July 24.

Zimring, Franklin E. 1981. “Kids, Groups and Crime: Some Implications of a Well-known Secret.” 72 Journal of Criminal Law and Criminology 72, no. 3: 867–85.*

Chapter 4

Police Sniffer Dogs:
Schools and Public Places

A locker search might be carried out on a tip from another student; a random baggage search might be based on police-generated profiles. These searches can be aided by electronic devices or trained sniffer dogs. If, for example, illegal drugs are found, they no doubt will be seized, and there is the strong possibility that charges will be laid. If the illicit substance is found in a school, there is the added possibility of discipline, including suspension or expulsion.

Searches, however, whether of the person or the person’s belongings, whether youth or adult, are an invasion of that person’s constitutional rights. This invasion can be justified under the law, but there are conditions that must be met for such an invasion to be accepted and for the illegal item (drugs or weapons) to be used in support of any charge or penalty.

Among the questions raised in this chapter are:

Is the police use of sniffer dogs to find illegal drugs a “search”?

What is the importance of where the dogs are used?

If the police dog signals illegal drugs, may police conduct a search?

Does the Charter of Rights and Freedoms set standards for the use of police sniffer dogs?

Police have long used dogs as investigating “tools.” Their noses have a sense of smell far more sensitive than those of humans. They have been used to find suspects where the only identification is a piece of clothing believed to have been worn by that person. They have also been trained to locate illegal drugs that, in turn, provide police with leads both to ferret out illegal drugs and arrest those engaged in trafficking.

This chapter focuses on two cases decided by the Supreme Court of Canada on the same day: April 25, 2008. In both cases, a Court majority (six of nine Justices) agreed that the evidence of illegal drugs found by police as a result of dog sniffing could not be used at trial.

The cases are The Queen v. A.M. and The Queen v. Kang-Brown. In both cases, the Attorneys General of Ontario, Quebec, and British Columbia were granted the right to intervene and argue before the Court. Others permitted to intervene in The Queen v. A.M. were the Canadian Foundation for Children, Youth and the Law, and the St. Clair Catholic School Board (where the police use of sniffer dogs took place at the invitation of one of its high school principals).

The cases present real difficulties as to the legal lessons we are to take away from the decisions. Bear in mind that the rulings of the Supreme Court of Canada are the law of the land. But when we say “rulings,” we mean the reasoning that led the Court to its decision. It is the reasoning in support of a decision that makes a Supreme Court of Canada decision a precedent — that is, binding on the Court and lower courts.

In each of the two cases discussed in this chapter, there was a total of four decisions. The Court was polarized. Still, on some of the key issues, a majority of the justices did agree. To that extent, their reasoning and decision can be taken as precedent. However, we will also discuss the limitations that the justices imposed on themselves as to the scope of the conclusions reached.

All the justices seemed to agree that the issues were to be resolved not by any statute — for Parliament had not enacted any law to deal with the issues in dispute. Rather, the issues were to be resolved by “judge-made law,” as it had been developed and applied by the Court itself. This, in turn, meant that the facts in any case were important. Any significant variation in facts could change the reasoning from one case to another. This had special meaning for the subject of searches.

The investigatory techniques might be the same as applied to adults and young persons. But, should the rules relating to the use of those techniques, as applied for example to sniffer dogs, be different for luggage searches at a bus station as contrasted to bag searches at a high school?

What we will do is describe the issues raised by the justices and how they dealt with them. Then, we will more clearly see where Court majorities exist and thus precedent has been set, and where there remain issues to be decided in future cases.

Here are the central issues raised and discussed in the two Supreme Court of Canada decisions:

Against what standard are searches to be measured to determine their lawfulness?

When can it be said that a search has taken place?

Under what circumstances will a search be ruled “unreasonable”?

Even if a search is unreasonable, is it possible to use the resulting evidence in a criminal trial?

The Queen v. A.M. will frame our discussion in this chapter. That case, along with The Queen v. Kang-Brown, will be discussed under the Charter of Rights and Freedoms, part of the Constitution of Canada. We will begin our discussion with the relevant Charter provisions and with the issues raised under them. This will be followed by a summary of the facts, the first part of which will deal with the nature of sniffer dogs. The Queen v. Kang-Brown will be developed in “You Be the Judge,” challenge questions, and queries.

A Standard:
The Charter of Rights and Freedoms

Section 8 of the Charter

Under the Charter of Rights and Freedoms, the primary provision relating to search or seizure is section 8. It consists of a few words that, on their face, seem quite simple: “Everyone has the right to be secure against unreasonable search or seizure.”

The meaning of those words, however, has caused much conflict. The courts have been called upon to define what is an unreasonable search or seizure. In the cases discussed in this chapter, for example, have dogs conducted a search by sniffing the air and reacting, having been trained to detect unlawful drugs? If the answer is yes, then the first step has been taken in requiring the police to obtain judicial permission for a search.

The words of section 8 of the Charter do not answer these questions. Up to this point, the courts have given meaning to the words of the Charter section. This task of interpretation derives from the courts’ historic functions. It is the common law. The courts — and finally, and most importantly, the Supreme Court of Canada — look to past decisions and, generally slowly, case by case, graft meaning onto the words. Seldom is this done with any one sweep of a generalized decision.

And, certainly this is true of The Queen v. A.M. and The Queen v. Kang-Brown. One case involved a sniffing police dog that was walked round a school gym where students had placed their backpacks. The other related to police stopping a bus passenger and using a sniffer dog to walk alongside his luggage.

If there were any common approach to decisions involving search or seizure, it would be in factual detail insisted on by the courts in applying the language of section 8. Put differently, out of the facts the courts derive the meaning of the law.

Section 9 of the Charter

Section 9 of the Charter states, “Everyone has the right not to be arbitrarily detained or imprisoned.”

Often when we think of searches or seizures, there is the image of police forcibly detaining an individual, while searching the person or that individual’s property. In The Queen v. A.M., police did not use such force. Students had piled their backpacks in the gym. Police, at the invitation of the school principal, walked a sniffer dog around the backpacks. It was in that setting that police found drugs.

In The Queen v. Kang-Brown, police spotted the profile of a suspicious person, one who might be a drug carrier. They walked a sniffer dog around his luggage where they later discovered a stash of unlawful drugs. Section 9 provides the standard to determine whether the use of trained police dogs in such a context amounts to a “seizure of personal property.” At best, it is a generalized standard.

Section 24 of the Charter

Section 24 of the Charter states:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

24(2) Where in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Assume that there has been an unlawful search or seizure. What is the result? Bear in mind that the question is raised in the context of a criminal proceeding. Often, the question is raised when the Crown seeks to introduce evidence coming from the search and seizure. In the cases examined in this chapter, the evidence is the illegal drugs that police found in the student backpack or the luggage of the accused.

If the judge excluded the evidence because police obtained it in violation of the Charter, then frequently the Crown’s case against the accused collapses.

Section 24 of the Charter specifically deals with evidence that police obtain in violation of the Charter. That provision does not deny the Crown the right to introduce the evidence and have a judge and/or jury consider it in reaching a verdict. Rather, the unlawfully obtained evidence cannot be used when “the admission of it in the [court] proceedings would bring the administration of justice into disrepute.”

Again, the words of the section are general. They don’t guide the court as to when the administration of justice would be brought into disrepute. Is the answer to be found in the seriousness of the police violation, or is it to be discovered in the real danger of the crime that has been prevented?

The courts must give meaning to the language of the Charter provision. The scope of the Court’s decision — how broadly it will cast its reasoning — is, however, another matter. In The Queen v. A.M., Justice LeBel, speaking for himself and two other justices, wrote, “Courts make and change the law.… Much of what is recognized as ‘law’ is actually, in one form or another, judge-made law.… The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power.”

CHALLENGE QUESTION

A Role for Parliament

Q: Is the Supreme Court better able than Parliament to define when and how police are to use sniffer dogs?

The Supreme Court can have a shared role with Parliament in defining when and how sniffer dogs are to be used by police. Justice Deschamps spoke of this, and her comments were not challenged by other members of the Court in either The Queen v. Kang-Brown or The Queen v. A.M. She said,

Many decisions must be made about when and how dogs ought to be used in law enforcement, and both the public and the police are entitled to know how these animals can and will be used in Canada.

This direction is best provided by Parliament, which is able to create a wholistic and harmonious scheme for the use of sniffer dogs in this country. Courts, on the other hand, are ill equipped to deal with the multitude of issues arising from the use of sniffer dogs.

Not only are judges restricted to considering the issues and factual scenarios placed directly before them by specific parties (and therefore unable to create a wholistic scheme regulating the use of dogs generally). They also do not have access to the expertise necessary to determine what type of training sniffer dogs should receive or what degree of accuracy they should have in order to be deemed “reliable.”

Courts are also poorly positioned to determine when dogs should be used on bags as opposed to persons, when a warrant ought to be obtained prior to use of the dogs, and what form notice must take when sniffer dogs are used in a generalized way.

All of these important decisions are best left to Parliament, which can study the various aspects of sniffer dog use and craft policies suited for the Canadian context, in which Charter rights must be carefully balanced against the need for effective law enforcement.

Unfortunately, Parliament has remained silent on the use of sniffer dogs, and the courts must therefore evaluate police use of this tool, absent any statutory direction from this country’s policy makers.

Parliament remains free to enact legislation even after the Court has stated its view. The Court’s decision (or holding) relates to its reasoning and the principles embodied in that reasoning. This leaves it to the legislature to set out the details that would implement the standards. For example, the legislature could set criteria necessary for the qualification of a police dog as a sniffer. And, the legislature could say that the failure to use a properly qualified police sniffer dog would result in the evidence uncovered by the dog being treated as inadmissible.

The Comparative Skills of Sniffer Dogs

Not all sniffer dogs are equally skilled at detecting illegal drugs. Justice Deschamps, in a concurring opinion joined by Chief Justice McLachlin, gave the Court a majority in ruling the search unlawful in The Queen v. A.M. She emphasized the differences between sniffer dogs and the need for police to demonstrate the sniffing skill of any particular dog whose alert is used as a basis for a search. Justice Deschamps stated:

The evidence in this case is that the sniffer dog Chief has an enviable record of accuracy. Of course dogs, being living creatures, exhibit individual capacities that vary from animal to animal. While a false positive may be rare for Chief, it is not thus with all dogs. The importance of proper tests and records of particular dogs will be an important element in establishing the reasonableness of a particular sniffer-dog search.

The Crown attaches considerable importance to what it says are statistics relevant to the detection rate, that is to say the successful location of drugs in a search conducted pursuant to a dog sniff (true positives), but an important concern for the Court is the number of false positives. From the police perspective, a dog that fails to detect half of the narcotics present is still better than no detection at all. From the perspective of the general population, a dog that falsely alerts half of the time raises serious concerns about the invasion of the privacy of innocent people [emphasis added].

She went on to quote from a dissent of U.S. Supreme Court Justice Souter, who questioned the accuracy of sniffer dogs. There, Justice Souter wrote, citing reported dog sniffing cases, “The infallible dog, however, is a creature of legal fiction.… Their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency [money] by cocaine.”

Justice Deschamps continued:

Broadly based studies demonstrate an enormous variation in sniffer dog performances, with some dogs giving false positives more than 50 percent of the time. Canadian police data seem not to be available, but in 2006, the [Australian] New South Wales Ombudsman issued a report containing extensive empirical data on the use of sniffer dogs by police since the introduction of the Police Powers Act. During the review period, 17 different drug detection dogs made 10,211 indications during general drug detection operations. The Ombudsman reported:

“Almost all persons indicated by a drug detection dog were subsequently searched by police. This is in accordance with police policy which states that an indication by a drug detection dog gives police reasonable suspicion to search a person.

“Prohibited drugs were only located in 26 percent of the searches following an indication. That is, almost three-quarters of all indications did not result in the location of prohibited drugs [emphasis added].

“The rate of finding drugs varied from dog to dog, ranging from 7 percent (of all indications) to 56 percent. (NSW Ombudsman, Review of the Police Powers (Drug Detections Dogs) Act 2001 (2006), at p. ii.)”

Justice Deschamps added:

Moreover, the sniff does not disclose the presence of drugs. It discloses the presence of an odour that indicates either the drugs are present or may have been present but are no longer present, or that the dog is simply wrong. Odour attaches to circulating currency and coins. In the sniffer dog business, there are many variables.

I mention these conflicting reports because it is important not to treat the capacity and accuracy of sniffer dogs as interchangeable from one dog to the next. Dogs are not mechanical or chemical devices.

The police claim that they have available dogs like Chief who have a high accuracy rate and a low percentage of false positives. If the lawfulness of a search is challenged, the outcome may depend on evidence before the court in each case about the individual dog and its established reliability. Neither the police nor other government authorities are justified in relying on the “myth of the infallible dog.” Proper police manuals require a handler to record a dog’s (or the team’s) performance. This is (or should be) accepted as an essential part of a handler’s work (see S. Bryson, Police Dog Tactics (2nd ed. 2000); R. S. Eden, K9 Officer’s Manual (1993)), to be adduced as part of the evidentiary basis laid before the trial court at which sniffer dog evidence is sought to be introduced.

The Queen v. A.M. : The Facts

In 2000, the principal of St. Patrick’s High School in Sarnia, Ontario, extended an invitation to the Youth Bureau of Sarnia Police Services: If the police ever had sniffer dogs available to bring into the school to search for drugs, they were welcome to do so.

Apparently, on a few occasions before the case of The Queen v. A.M., police took advantage of the invitation. They used sniffer dogs to check the school parking lot, hallways, and other areas that the principal suggested. The record in this case does not indicate the results of the sniffer checks. However, Sarnia police used sniffer dog searches in at least 140 instances in schools. Further, the use of sniffer dogs in high schools apparently is widely practised in Ontario and other provinces.

The school had a zero-tolerance policy for possession and use of drugs and alcohol, a policy that the school communicated to the students and their parents. Violating this policy resulted in suspension or expulsion of the offending students.

On November 7, 2002, three police officers decided to go to the school with a sniffer dog. The principal granted them permission to go through the school.

At trial, the police officers admitted that they had no information that drugs were then present in the school. The officers acknowledged that they had no grounds to obtain a search warrant. And the principal acknowledged that he had no information about drugs in the school at that time, although he said, “It’s pretty safe to assume that they could be there.”

In cross-examination, the principal was questioned. “But you never, armed with specific information, had called [the police] and said this is what I know, therefore I think a search should be conducted.” He answered, “No.”

Constable Callander of the Sarnia police gave similar evidence. He was asked: “You did not have any direct awareness as to the existence of drugs and where that might be, and there was no indication that safety of people/students were at risk. You were not armed with any of that kind of information.” He answered, “No.”

The principal had heard occasional reports from parents or neighbours about “kids in our school who are doing drugs,” but nothing specific to the November 7, 2002, time period.

To facilitate the police search, the principal used the school’s public address system to tell everyone that the police were on the premises and that students should stay in their classrooms until the police had conducted their search. The effect of this announcement was that no student could leave his or her classroom for the duration of the police investigation.

The police, not the school authorities, took charge of the investigation. The principal testified that he had no involvement beyond giving permission and telling the students to remain in their classrooms. There was no discussion with him as to how the search was to be conducted.

The police search included the gymnasium. A police officer, a canine handler, was accompanied by his sniffer dog, Chief, trained to detect heroin, marijuana, hashish, crack cocaine, and cocaine.

There were no students in the school gymnasium but some backpacks were lying next to the wall. Chief alerted to one of the backpacks by biting at it — as he had been trained to do. The police handler gave the backpack indicated to Constable Callander, who physically searched through its contents.

The constable confirmed Chief’s identification of drugs, including five bags of marijuana; a tin box containing a further five bags of marijuana; a bag containing approximately ten magic mushrooms (psilocybin); and a bag containing a pipe, a lighter, rolling papers, and a roach clip. A.M.’s wallet, containing his identification, was in the backpack. A.M. was charged with possession of marijuana for the purpose of trafficking and possession of psilocybin.

Findings of the Lower Courts

Both the Ontario Youth Justice Court and the Ontario Court of Appeal ruled the searches unreasonable, with the result that the evidence seized was excluded and the charges against A.M. were dismissed. The youth court judge did not find any “bad faith” on the part of the police or the school principal. Still, the youth court judge said that the rights of every student at the school were violated on the day of the search. They were confined to their classroom while the dog sniffed.

In effect, the youth court judge stated that two searches were conducted on the day in question. The first search was the sniffer dog search, which resulted in the dog alerting police to A.M.’s backpack in the school gym. The second was physically searching the questioned backpack, a search that yielded the drugs.

A unanimous Court of Appeal affirmed the youth court judge’s decision. To the Court of Appeal, the central questions were:

Did the police conduct amount to a search?

If so, was the search unreasonable within the meaning of section 8 of the Charter?

(The relevant Charter provisions have been described earlier in “A Standard: The Charter of Rights and Freedoms.” Still, it may be useful to repeat the language of section 8: “Everyone has the right to be secure against unreasonable search and seizure.”)

CHALLENGE QUESTION

The Role of School Authorities

Q: Would the search have been unreasonable within section 8 of the Charter had the principal ordered the search — and not the police as in the case of The Queen v. A.M. — and had the police brought the suspicious backpack to the principal and had the principal turned over its illegal contents to the police?

A somewhat similar case involving a school-initiated search — The Queen v. M. (M.R.), [1998] 3 Supreme Court of Canada Reports 393 — was noted several times in The Queen v. A.M. This was an 8–1 decision of the Supreme Court. We will set out the facts and the Court’s reasoning and conclusions.

The Queen v. M. (M.R.), in a decision handed down by Justice Peter Cory, allowed a vice-principal to search a thirteen-year-old junior high school student, M.R., in the presence of police. They found a small quantity of marijuana. It was turned over to the police, and M.R. was charged. Several students had earlier informed the vice-principal that M.R. possessed drugs and that he intended to sell them to other students. That night, the school held a dance, for which the vice-principal was responsible.

These were the facts, as stated by Justice Cory:

When [the vice-principal] saw [the student] arrive at the dance, he called the RCMP to request that an officer attend at the school. He then approached [the student] and his friend and asked them to come to his office. He asked each of the students if they were in possession of drugs and advised them that he was going to search them.

The RCMP officer … then arrived, dressed in plain clothes. He spoke briefly with [the vice-principal] outside the room, then entered, identified himself to the two boys and sat down. He did not say anything while [the vice-principal] spoke to the students and searched them.

[The student under suspicion] turned out his pockets and, at the request of [the vice-principal], pulled up his pant legs. The vice-principal noticed a bulge in [the student’s] sock and removed a cellophane bag. He gave the bag to [the RCMP officer] who identified the contents as marijuana. [The officer] then advised [the student] that he was under arrest for possession of marijuana and read to him the police caution and his right to counsel. [The officer] also advised him that he had the right to contact a parent or adult. [The student] attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. [The officer] and [the student] then went to [the student’s] locker and searched it, but nothing was found there.

At trial, the judge concluded that the search had violated [the student’s] rights under the Charter and excluded the evidence found in the search. The Crown did not offer any further evidence, and the charge against [the student] was dismissed. The Court of Appeal allowed the Crown’s appeal and ordered a new trial. Thereafter, leave to appeal to this Court (the Supreme Court of Canada) was granted.

For the Court, Justice Cory stated:

The vice-principal conducted the search. The police constable had no role in this regard. He was passive.

The vice-principal had reasonable grounds for suspicion that the student had drugs. The student informants had given reliable information in the past.

The school had a clear policy against unlawful drugs on the premises.

The school administrators, including the vice-principal as well as the teachers, were mandated by law to ensure good order, discipline, and safety of students.

Students had to understand that their rights to privacy had to be confined within the limits of what it takes to run an orderly and safe school.

The search was reasonable and respectful of the student. It took place within the vice-principal’s office. The principal gave the student the opportunity to produce the unlawful drugs.

Justice Cory indicated that if the police officer had conducted the search, the Court may have applied a different and higher standard.

The case of The Queen v. M. (M.R.) was different from The Queen v. A.M., where the police initiated and carried out the search. The principal was merely there at the bidding of the police. Further, and perhaps more importantly, in The Queen v. A.M. there was, on the facts, no reasonable basis for believing that any student had on his/her person unlawful drugs. At most, the principal suspected that he might find such drugs.

On the facts in this challenge question, the search would likely be deemed unlawful because there was no basis for a reasonable suspicion that students had carried unlawful drugs into the school. Even with a lower standard for school administrators for conducting a search, the administration must have a reasonable basis for suspicion that unlawful drugs are present.

The Queen v. A.M. :
The Supreme Court of Canada Decides

The Supreme Court of Canada consists of nine justices. A majority (five justices) is enough to constitute a decision binding on the lower courts. In the case of The Queen v. A.M., the Court’s decision was fragmented: parts of it brought majority holdings and parts of it brought no majority. To the extent there was no majority ruling, the issues there reflected are not settled. (Of course, if only eight justices took part in a decision, and they split 4–4, then the decision of the lower court would remain in effect. At times, the Court will decide cases in panels of seven justices. Then a majority consists of four justices.)

We will begin with two issues that the Court majority did resolve:

Does section 8 of the Charter protect students while in school?

Was there a search within the meaning of section 8 of the Charter?

Seven justices ruled that there was such a search and, in that regard, that students were protected by section 8 of the Charter. Justice LeBel stated this, speaking for himself and Justices Morris Fish, Abella, and Charron, and reflecting the conclusions as to this aspect of the case in the concurring opinion of Justice Binnie and Chief Justice McLachlin.

(Note that Justice Bastarache also agreed that there was a search, and that it was one that violated section 8 of the Charter. However, as we pointed out elsewhere, he would have allowed the evidence to be admitted at the trial of A.M. Justices Deschamps and Rothstein dissented from the majority view. They argued that A.M. could not claim rights under section 8 of the Charter because, on the facts, he had no reasonable expectation of privacy, a condition necessary for applying section 8 of the Charter. See, “Dissent from the Majority: A Lawful Search,” in this chapter.)

Justice LeBel stated:

I have read the reasons of my colleague Binnie J. I agree that the appeal should be dismissed.… Students are entitled to privacy even in a school environment.… Entering a schoolyard does not amount to crossing the border of a foreign state. Students ought to be able to attend school without undue interference from the state, but subject, always, to normal school discipline.

As found by the Court of Appeal and by Binnie J., a search was conducted. The authority for that search was nowhere to be found in the statute law or at common law. This is not a case, for example, where the police would have entered the school under the authority of a search warrant and used sniffer dogs to assist in effecting a more focused search. Nor was the dog-sniffer search conducted by the school authorities on proper grounds as set out in M. (M.R.). [Discussed in “Challenge Question: The Role of School Authorities.”]

Our Court should not attempt to craft a legal framework of general application for the use of sniffer dogs in schools. As a result, the evidence was properly excluded under section 24(2) of the Canadian Charter of Rights and Freedoms. I would dismiss the appeal.

(See “You Be the Judge: Bus Station Stakeout.” The reasoning in the case discussed in the exercise was incorporated into the reasoning of Justice LeBel.)

What Kind of Search?

In effect, the Court majority found no reasonable basis for a suspicion of wrongdoing that would have legitimized the search under section 8 of the Charter:

If there were grounds for reasonable suspicion that an unlawful act had been committed, or, in this case, that a student had been or was trafficking in prohibited drugs, a search by a sniffer dog likely would have been permitted. But, even in reaching this conclusion, it would be necessary to ask — what kind of search? Here the search did not involve the students, as such. That is, they were not forced to a physical search. Indeed, they were not even in the area where the search was conducted [emphasis added].

The concurring opinion of Justice Binnie and Chief Justice McLachlin was:

If the sniff is conducted on the basis of reasonable suspicion [emphasis added] and discloses the presence of illegal drugs on the person or in a backpack or other place of concealment, the police may, in my view, confirm the accuracy of that information with a physical search, again without prior judicial authorization.… But, of course, all such searches by the dogs or the police are subject to after-the-fact judicial review if it is alleged (as here) that no grounds of reasonable suspicion existed, or that the search was otherwise carried out in an unreasonable manner.

Here the after-the-fact judicial review [resulted] when the prosecution attempted to rely on the evidence obtained in the search. The exceptional authority given to the police to use sniffer dogs on the basis of reasonable suspicion and without prior judicial authorization will, if abused, lead to important consequences under section 24(2) of the Charter which provides that where a court concludes … “that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded (from consideration) if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [See “You Be The Judge: The Scales of Justice” in this chapter.]

The exclusion (of the evidence from consideration) remedy was granted in this case and, in my opinion, rightly so.

I accept the youth court judge’s finding of fact that this was a random speculative search [emphasis added]. What was done here may have been seen by the police as an efficient use of their resources, and by the principal of the school as an efficient way to advance a zero-tolerance policy. But these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school, as the youth court judge and the Court of Appeal pointed out. The Charter weighs other values, including privacy, against an appetite for police efficiency. A hunch is not enough to warrant a search of citizens or their belongings by police dogs.

Privacy: A Protected Interest

Justice Binnie and the chief justice said that section 8 of the Charter is designed to protect the privacy interests of individuals. And, again, this interest includes students. They wrote:

Section 8, like the rest of the Charter, must be interpreted purposively, that is to say, to further the interests it was intended to protect. While these interests may go beyond privacy, they go at least that far.… A privacy interest worthy of protection is one the citizen subjectively believes ought to be respected by the government and that society is prepared to recognize as reasonable.… In each case, an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.

These are the considerations that brought the Court to this conclusion:

“The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state…. Students are as deserving of constitutional protection as adults — although their age, vulnerability, and presence in a school environment all factor into the totality of the circumstances.”

The Court’s “focus must be on the impact on the subject of the search or the seizure [here, all the students at the school], and not simply on its rationality in furthering some valid government objective. The impact includes disruption, inconvenience and potential embarrassment for innocent individuals subjected to the dog sniff or other intrusive police attention.”

Obviously, the Court must know the purpose of the police search in determining its validity. “If the police in this case had been called to investigate the potential presence of guns or explosives at the school using dogs trained for that purpose, the public interest in dealing quickly and efficiently with such a threat to public safety, even if speculative, would have been greater and more urgent than routine crime prevention. Generally speaking, the legal balance would have come down on the side of the use of sniffer dogs to get to the bottom of a possible threat to the lives or immediate safety and well-being of the students and staff.”

“The Court must consider the significance of the information obtained as a result of the [search]. Of course, much police work does consist of assembling different ‘scraps’ of information, some of it apparently meaningless, into a significant picture. This fact does not necessarily generate constitutional protection for the ‘meaningless scraps’ that form part of the mosaic unless there is something else in the context that drives that result. In the present case, [this consideration] is inapplicable. The information [here] is highly meaningful. We are not dealing with ‘scraps.’ The dogs pointed the police to the sniffer dog’s equivalent of a smoking gun.”

Finally, the courts “have to deal with what is presented to them as reality.” It is true that a sniffer dog may alert police to information about the crime under investigation. And, having said this, the Court made it clear that the subject of such investigatory tools is not finally resolved by this case. Other facts may bring other results.

Applying Facts

Justice Binnie and the chief justice applied the following principles to the arguments that the Crown raised:

It is true that the students knew that the school setting was closely supervised and regulated. Indeed, A.M.’s school principal had made clear the board of education and school policy of zero-tolerance of unlawful drugs.

In carrying forward that policy, wasn’t it logical to allow sniffer dog police searches? Isn’t this a legitimate incursion on the rights of students? The answer from Justice Binnie and the chief justice was this: There was a general expectation of privacy that did not end because of a generalized fear of drugs. The threat had to be more immediate; it had to be based on a real suspicion.

Yet doesn’t A.M. in effect ask that his privacy interest be one of protecting “contraband”? The dog’s sniff relates only to illegal drugs. Justice Binnie and the chief justice quoted with approval a dissent of then U.S. Supreme Court Justice Brennan when faced with a similar prosecution argument:

Under the Court’s analysis in these cases, law enforcement officers could release a trained cocaine-sensitive dog — to paraphrase the California Court of Appeal, a “canine cocaine connoisseur” — to roam the streets at random, alerting the officers to people carrying cocaine…. Or, if a device were developed that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine, there would be no Fourth Amendment [U.S. Constitution] bar [against unlawful search and seizure — similar to section 8 of the Charter], under the Court’s approach, to the police setting up such a device on a street corner and scanning all passersby.

In fact, the Court’s analysis is so unbounded that if a device were developed that could detect, from the outside of a building, the presence of cocaine inside, there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present. In short, under the interpretation of the Fourth Amendment … first applied in this case, these surveillance techniques would not constitute searches and therefore could be freely pursued whenever and wherever law enforcement officers desire. Hence, at some point in the future, if the Court stands by the theory it has adopted today, search warrants, probable cause, and even “reasonable suspicion” may very well become notions of the past.

The means, said Justice Binnie and the chief justice, do not justify the end. The focus of any search must be on the person, place, or thing searched. A suspicionless search should not be rendered acceptable by after-the-fact discovery of unlawful drugs. Justice Binnie wrote for himself and the chief justice:

I therefore do not agree with the Crown’s argument that A.M.’s reasonable privacy interest in the contents of his backpack extended only to what was lawful and excluded what was unlawful. On the contrary, I expect A.M. would not have cared if the police had found a polished apple for the teacher in his backpack. He would very much care about discovery of illicit drugs. In past cases, we have accepted a legitimate privacy interest in a home despite the presence therein of drug[s] (The Queen v. Evans, [1996] 1 Supreme Court of Canada Reports 8) … and an automobile despite the discovery of incriminating evidence (The Queen v. Mellenthin, [1992] 3 Supreme Court of Canada Reports 615).…There is no reason why a student’s privacy interest in his backpack should not be deemed similarly respected despite the presence of contraband.

An argument could be made that the police dog was merely sniffing air, something that all of us breathe. It was an action that everyone does. How can it be said that such action was a search? Justice Binnie and the chief justice seemed to reject the argument out-of-hand. Justice Binnie stated:

Dogs have a capacity not available to human beings. The better analogy is to a machine or device for detecting odours (such as a smoke alarm), although dogs, being living creatures, are more variable than machines in their performance.

The dog “sniffing” cannot be treated as an isolated phenomenon and detached from the broader police conduct. I do not think it is plausible for the Crown to argue at one and the same time that the sniffer-dog utility lies in quick accurate identification of illicit drugs concealed inside a backpack, but that the result is not a search.

The Importance of Facts

Justice Binnie and Chief Justice McLachlin were trying to develop guidelines that the Court could apply in any case. But the nature of the problem of investigative devices applied to crime is a rapidly developing field. The technology of today may be replaced by another technology tomorrow.

Justice Binnie and the chief justice emphasized the need to be open to review any new technology in the context of section 8 of the Charter. They acknowledged, for example, the potential use of honeybees and sensors to scan crowds on the lookout for possible wrongdoing (Kerr and McGill 2007, cited by Justice Binnie).

Justice Binnie wrote,

The [Charter’s] section 8 jurisprudence will continue to evolve as snooping technology advances. This flexibility is essentially what the totality of the circumstances approach is designed to achieve. On these occasions, critics usually refer to “Orwellian dimensions” and 1984 [a famous book by George Orwell suggesting a future where privacy would be a right long gone], but the fact is that 1984 came and went without George Orwell’s fears being entirely realized, although he saw earlier than most the direction in which things might be heading. The Court can insist on proper evidence of what the police or government are up to and how, if at all, the information the police seek to collect can be used.… Whatever evolution occurs in the future will have to be dealt with by the courts step by step. Concerns should be addressed with as they truly arise.

YOU BE THE JUDGE

The Scales of Justice

The Facts

The facts are taken from The Queen v. A.M. In effect, a high school was locked down. Students were ordered to stay in their classrooms for a period of about two hours while police, at the invitation of the school principal, conducted a sniffer dog search for unlawful drugs.

The dog sniffed such drugs — and alerted police — in the school gym where a number of students had placed their backpacks. The police opened the backpack in question and found and seized marijuana and “magic” mushrooms. The identity of the student owner of the backpack was determined and he was charged.

The youth court determined, and the Supreme Court of Canada agreed, that the search was unlawful within the meaning of the Charter of Rights and Freedoms. However, the Crown argued that, in any event, the evidence resulting from that search should be allowed at trial.

The Issues

Under what circumstances, if any, may unlawfully seized evidence be presented by the Crown in a criminal trial? Who is in the best position to make that decision?

Points to Consider

The Charter of Rights and Freedoms is part of the Constitution of Canada and, as such, it is the highest law of the land.

Section 24(2) of the Charter allows a court to hear evidence from unlawful searches that would otherwise be excluded in a criminal trial. But this can be done only if such admission would not “bring the administration of justice into disrepute.”

These are the relevant provisions of the Charter:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Ontario Education Act calls for police to be used only “when necessary, or if the well- being of the student is at risk.”

Drug use and trafficking among and by youth is considered a serious societal problem.

Discussion

The Court majority in The Queen v. A.M., having ruled the sniff search unlawful, sustained the trial court refusal to receive the results of that search (the unlawful drugs) in evidence. Justice Binnie, with whom Chief Justice McLachlin concurred, stated that (1) drugs in schools are a serious problem, but (2) the trial court judge (youth court) saw the parties and heard the evidence. That judge was in a better position to balance the rights of A.M. against those of the need to protect society.

Justice Binnie noted that the trial court’s decision should be upheld on appeal unless it was based on a wrong principle or exercised in an unreasonable manner. The trial court is seen as reflecting community values.

Justice Binnie then went on to quote the youth court judge who stated:

This search was unreasonable from the outset. It is completely contrary to the requirements of the law with respect to the search in a school setting. To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure. It is effectively saying that persons in the same situation as A.M. have no rights. Such a finding would, to my mind, bring the administration of justice into disrepute.

Creating a Balance

At this point, Justice Binnie reviewed the findings of the youth court judge:

The evidence was essential to the Crown’s case. Without it, the case could be and was dismissed. Further, having regard to the school setting, the youth court judge said, “the breach must be seen on the less serious end of the scale.” Involved was no crime of violence, and the drugs involved might be seen as less pernicious than those such as cocaine or heroin. No bad faith could be attributed to the police or school authorities. All of these factors, said the youth court judge, tended to favour admission of the evidence despite the Charter breaches.

However, the youth court judge continued, weighed against admission was the fact that the use of dogs for a “general sweep” in this case appears to be the standard practice of the OPP [Ontario Provincial Police] and the municipal police forces in Ontario. The searches did not respect the rules set out four years previously by this Court in The Queen v. M. (M.R.). Nor did they comply with the school board’s own policies enacted under the Ontario Education Act, which call for police to be used only “when necessary, or if the well-being of the student is at risk.” The police in this matter acknowledged that they had participated in sniffer dog searches of schools on approximately 140 previous occasions.

The failure to respect the right of the students may therefore be described as systemic — that is, reflective of the way the system, as a whole, operated. In the end, weighing the good with the bad, the youth court judge concluded that “the Charter must not be seen as something to be swept away in the interests of expediency. While this case centres around the rights of A.M., the rights of every student in the school were violated that day as they were all subject to an unreasonable search.”

Justice Binnie concluded:

Like the Ontario Court of Appeal, I would not interfere with the balance of competing values struck by the youth court judge or his exclusion of the evidence. Youth court judges carry out special responsibilities for young people in trouble with the law. They have a greater awareness than appellate judges do of the effect that admission or exclusion of this evidence would have on the reputation of the administration of justice in the community with which they deal on a daily basis. The trial judge’s analysis was brief but perceptive. I would not interfere.

A Dissenting View

Justice Bastarache agreed with the Court majority that the sniffer search was unlawful. He dissented, however, on the application of section 24(2) of the Charter. He would have allowed the evidence resulting from the unlawful search to be received. It seemed to him that (1) trafficking in prohibited drugs was a serious matter in itself. An aggravating factor was that the offence took place within a school. (2) The principal and police conducted the search in the good faith belief that they were acting in a lawful manner. To Justice Bastarache, the illegality of the search was inadvertent.

Justice Bastarache stated:

Although this search was not performed on the basis of a reasonable suspicion that drugs would be found, it was conducted in good faith. The search was non-intrusive in nature [for example, none of the students were subject to a physical search] and occurred in an environment where the [personal] expectation of privacy was diminished. The evidence obtained was non-conscriptive [obtained not by force but found in a student’s stored backpack] in nature and does not affect the fairness of the trial. As a result, it is my view that excluding this evidence would bring the administration of justice into disrepute and that the trial judge erred by failing to admit it at trial.

Dissent from the Majority: A Lawful Search

Justices Deschamps and Rothstein dissented from the majority view. They argued that A.M. could not claim rights under section 8 of the Charter because, on the facts, he had no reasonable expectation of privacy — a condition necessary for applying section 8 of the Charter.

To the dissenting justices, the question was not whether there was a search by the sniffer police dog. The Crown had argued, among other points, that the dog was simply sniffing air. It had not physically forced open, nor in any way impinged on, any backpack.

Justice Deschamps stated:

A.M.’s backpack was closed and was in a pile with others in the small gymnasium of St. Patrick’s High School when the police officers entered the room with their sniffer dog. It is significant that the odours emanating from the backpack could not be detected by the police using their own senses and that the police necessarily relied on the use of the dog to identify, among the several backpacks in the gymnasium, which, if any, contained controlled substances.

The dog’s positive indication on sniffing A.M.’s backpack enabled the police to ascertain what was inside the backpack with a reasonably high degree of accuracy. Accordingly, I have no difficulty in finding that the use of the dog in this case amounted to a search from an empirical perspective. However, what A.M. had to establish was that the use of the dog amounted to a “search” from a constitutional perspective such that it implicated a reasonable expectation of privacy that engaged the protection of section 8.

A Reasonable Expectation of Privacy

Justice Deschamps emphasized that A.M. was not wearing the backpack at the time of the search. It was in a pile of other student backpacks. It would be a different case, she said, if A.M. had been wearing the backpack at the time of the search. Still, the question remained as to whether A.M. had a reasonable expectation of privacy — that his backpack would be left alone.

For the dissent, Justice Deschamps argued that A.M. had neither a subjective nor objective reasonable expectation of privacy. The justice wrote:

Students and parents were aware of the drug problem and the school’s zero-tolerance drug policy and of the fact that sniffer dogs might be used. Dogs had in fact been used on prior occasions to determine whether narcotics were present at the school.…

Nor can it be said, Justice Deschamps continued, that A.M. could have had any objective expectation of privacy. She wrote:

The place where the search occurred was a school with a known problem of drug use by students, both on and off school property.…

The police were there with the permission (and at the request) of the school’s principal in furtherance of disciplinary goals being pursued by the school in order to confront a systematic drug problem. The dogs were used to search the premises, not the students….

Justice Deschamps added:

The use of a sniffer dog as an investigative technique did not intrude unreasonably on A.M.’s privacy interest, since his informational privacy interest was extremely limited in the school environment. Therefore, in my view, in light of [all] of the circumstances, A.M. did not have a reasonable expectation of privacy that engaged section 8.

Since I am of the view that A.M. did not have a reasonable expectation of privacy that engaged section 8 of the Charter, it is not necessary to determine whether the search was reasonable.

Furthermore, since A.M. did not have a reasonable expectation of privacy in respect of his backpack that was sufficient to engage section 8 of the Charter, and since the police were lawfully present at the school with the principal’s permission and were acting [as is] their duty to investigate and prevent crime, no individualized grounds were required for the police to employ their sniffer dog as they did in this case.

The Media’s Response

Within hours of the release of the decision in The Queen v. A.M., the Globe and Mail featured a lengthy editorial comment, a portion of which follows:

When a high-school principal in Sarnia, Ont., turned his school over to the police for a good portion of the day to let a drug-sniffing dog roam, he sent a terrible message to his students about what a democracy should permit the state to do in pursuit of its goals. The students were locked in their classrooms for up to two hours while the dog and the police did their work, intruding at random on the students’ personal property. For part of the day, that zero-tolerance school must have felt like a police state.

It is good that the Supreme Court of Canada ruled this 2002 search illegal yesterday, and refused to allow evidence of 10 bags of marijuana and 10 magic mushrooms found in a backpack in the [school] gymnasium to be used against the student who owned it. But, the Court, like Canadians generally, was torn over the appropriate standard for police as they go about their work of detecting crime and protecting communities. To a surprising extent, the Court is at sea.…

Charter rights are not guarantees of ideal justice, because they exist in the real world. A random drug search is of small use if the price is to render students rights-less. But holding police to an abstract standard of perfection as they try to protect us against imminent danger would give the Charter a bad name (“At Sea, but Keeping a Balance” 2008).

YOU BE THE JUDGE

Bus Station Stakeout

The Facts

On January 25, 2002, at about 11:00 a.m., three RCMP officers in plain clothes were staking out the Calgary Greyhound bus terminal. The team was watching passengers leave the overnight bus from Vancouver.

This was part of the RCMP “Jetway” program, which monitors the travelling public in an effort to identify and arrest drug couriers and other individuals participating in criminal activities. This was the only purpose of the stakeout.

The officers were not investigating the possibility of terrorist activity, explosives, or other threats to public safety. Their sniffer dog, Chevy, was not trained for anything other than narcotics detection.

RCMP Sergeant MacPhee testified that his training in the Jetway program taught him to watch for an “elongated stare,” a locked eye contact for a period of a few seconds. One passenger gave him such a stare. Sergeant MacPhee noted that the man had moved to the underbelly of the bus, but did not look at the bags that were being unloaded. Instead, he went around the bus in a direction different from the other passengers and stopped approximately three to five metres behind Sergeant MacPhee. The officer said this conduct aroused his suspicion.

The passenger was carrying a bag (like a gym bag) that had no Greyhound or other identifying tags on it. It had two handles rather than a shoulder strap, and he was carrying it on his shoulder. On entering the terminal, he walked toward the washroom. About five metres before the washroom door, he stopped, turned around and looked back at Sergeant MacPhee, who was about eight metres behind him. Sergeant MacPhee described this as “rubber-necking.”

When the passenger came out of the washroom, he again made eye contact with Sergeant MacPhee as he moved toward the exit doors. Sergeant MacPhee went over and introduced himself as follows: “Good morning, sir. I’m a police officer out here at the bus terminal. You’re not in any sort of trouble and you’re free to go at any time. We just talk to people as they’re travelling.”

Sergeant MacPhee commented on the weather and asked to see the passenger’s bus ticket (which he had apparently left on the bus), and asked for identification (which the man produced). Sergeant MacPhee made a note of his name and date of birth, and asked how long he would be in Calgary. The passenger seemed to Sergeant MacPhee to be getting “increasingly antsy” in the officer’s presence.

At this point, Sergeant MacPhee asked to see the contents of the passenger’s bag. The man paused, then put his bag down on the floor and started to open it. Sergeant MacPhee said, “Thanks, sir. You’re certainly not obliged to show me, but thanks.”

Sergeant MacPhee then started to kneel down and take hold of the bag himself, saying: “Just an officer safety thing here, do you mind?” Before he could touch the bag, the passenger said “What are you doing?” and pulled the bag back.

At that point, the passenger was very agitated. Sergeant MacPhee signalled to another officer, Sergeant (then Corporal) Bouey, who was accompanied by Chevy, a police sniffer dog, as noted. They approached, and Chevy sat down, indicating to his handler the presence of drugs in the bag. Sergeant MacPhee then told the passenger that he was under arrest for the possession and/or trafficking of a controlled substance and advised him of his rights.

Following the arrest, the passenger’s bag was searched by Constable Ritchie, and was found to contain two zip lock baggies filled with approximately half a kilogram of cocaine. The accused also produced, from his pocket, a Starbucks mint container containing a small amount of heroin. He was charged with possession of cocaine for the purposes of trafficking and possession of heroin.

The trial judge ruled that the accused was neither arbitrarily detained nor unlawfully searched, and he entered a conviction. The majority of the Court of Appeal agreed and dismissed his appeal.

The Issue

Was there a lawful basis for police search of the accused’s luggage?

Points to Consider

Section 8 of the Charter of Rights and Freedoms, part of the Constitution of Canada, provides, “Everyone has the right to be secure against unreasonable search or seizure.”

Based on the reasoning of the Supreme Court of Canada in The Queen v. A.M., the sniffer dog’s alert in front of the luggage of the accused was a search.

The offences with which the accused was charged were serious. However, if the search were unlawful, the breach of his section 8 Charter rights also would have been serious.

The accused had a “reasonable expectation of privacy” in the luggage that he carried, which was protected by the Charter.

There is no statute that defines authority for a lawful canine search.

Discussion

The facts in this case were taken from The Queen v. Kang-Brown, a decision handed down by the Supreme Court of Canada on the same day as The Queen v. A.M. The Court reflected the same split as in The Queen v. A.M. A majority of the Court agreed with the conclusion that the sniff and the luggage search were unlawful and that the seriousness of the breach of section 8 of the Charter required that the evidence arising from the search should be excluded under section 24(2) of the Charter.

Important Differences

There were, however, important differences between the two cases. In The Queen v. A.M., the search took place in a high school. This setting, Justice LeBel emphasized, requires different criteria, a different standard for measuring the lawfulness of searches. Educational institutions, such as high schools, have a duty to care for the security and well-being of students. This duty is made explicit by statute. The difficulty with the search in The Queen v. A.M. was that the search was initiated and conducted by the police, who simply took advantage of an earlier general invitation from the school principal.

A different result might have ensued (1) if the principal had received more specific and current information of drug trafficking in the school close to the time the search was made, and (2) if the principal had ordered and/or conducted the search — even in the presence of the police as backup. If these conditions had been met, then the standard for measuring the lawfulness of the search would have been reasonable suspicion of unlawful drug trafficking. (3) Further, if there were a threat of violence (guns, explosives), the police would have been able to conduct a search, even without the permission of a principal. On the facts in both cases, there was no use of sniffer dogs to alert for explosives. The dogs were trained only to alert for certain drugs.

In The Queen v. Kang-Brown, the search and the arrest that followed took place in a bus depot. Justice LeBel, for himself and Justices Fish, Abella, and Charron, said the higher standard for conducting a search, namely, reasonable and probable cause, should have been used. It was on the legal standard for conducting a search that Justice LeBel and his three colleagues differed with Justice Binnie and the chief justice, who formed the basic majority for the Court’s conclusion. To this extent, then, it can be said that there was no Court majority as to the legal standard to be applied in searches in non-school areas.

Our discussion here centres on the opinion of Justice LeBel, who spoke for the largest grouping of the Justices, though they did not constitute a majority of the Court.

Justice LeBel stated:

Of critical importance in situating the debate before this Court is the undisputed fact that the police had no reasonable and probable grounds to believe that Mr. Kang-Brown had drugs in his possession or that he had committed any other offence at the time they accosted him and effected the sniffer-dog search. The Crown seeks to rely, rather, on the fruits of the sniffer-dog search itself to establish the legality of Mr. Kang-Brown’s arrest and consequent search of his bag. In other words, it is uncontested that on the present state of the law, without the benefit of the positive sniffer-dog search, Mr. Kang-Brown ought to have been left alone by state authorities.

It is common ground that no statutory provision authorizes the sniffer-dog search that was conducted at the Calgary bus terminal. Nor was there common law authority to arrest Mr. Kang-Brown prior to the search being conducted.…

Contrary to what Binnie J. asserts in his reasons, the issue of the role of the courts in respect of common law police powers is squarely before us on this appeal. Unlike him, however, I conclude that any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. The issue was raised by the parties in this Court and in the courts below. Indeed, it lies at the heart of the present litigation. Mr. Kang-Brown raised the arbitrariness of the search.…

Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of section 8.… Although the word “privacy” does not appear in the Charter, from the first days of its application, section 8 evolved into a shield against unjustified state intrusions on personal privacy.…

My concern is that the approach adopted by my colleagues in this case will in practice jeopardize critical elements of the constitutional rights guaranteed by section 8 and of that section’s underlying values. Perhaps somewhat ironically, this erosion process would derive not from state action or from the laws of Parliament, but from decisions of the courts themselves.

Parliament’s Role and the Court’s Boundaries

Suppose Parliament enacted a law specifically allowing police to use sniffer dog alerts for unlawful drugs at public commuting terminals. Under the law, police, on an alert, would be permitted to search both a person and his or her luggage. If unlawful drugs were found, the law would permit the Crown to introduce the drugs in evidence in support of charges. How would a court determine the constitutionality of such a law under the Charter?

The key question goes to the justification of the law as a reasonable limit that can be justified in a free and democratic society — as set out in section 1 of the Charter. Justice LeBel, speaking for himself and three other justices in The Queen v. Kang-Brown, emphasized that such Parliamentary action gives the Crown the chance to put the reasoning, the facts, and the need for such a law as a reasonable limit on privacy to the Court. He wrote:

A statutory provision on the appropriate use of sniffer dogs in law enforcement … might require justification under section 1 [of the Charter], but state action would not be foreclosed so long as the standard for justification was met under the relevant constitutional test. A requirement that Parliament act first would put the courts in a better position to address the competing interests at play and would ensure that the justification process meets constitutional standards. The extension of common law police powers as proposed in this case would shortcut the justification process and leave the Court to frame the common law rule itself without the full benefit of the dialogue and discussion that would have taken place had Parliament acted and been required to justify its action.

Moreover, this is a case where the courts are ill-equipped to develop an adequate legal framework for the use of police dogs. In determining where the proper balance lies between the protection of privacy and effective law enforcement, the courts will be hampered by the fact that little is known about investigative techniques using sniffer dogs. Indeed, the record remains singularly bereft of useful information about sniffer dogs. The available information is in essence limited to the facts that they are used for investigative purposes in a variety of circumstances and that police officers believe in their overall reliability and to the praise of a particular dog deployed at the Calgary bus station. From the record, however, and from some of the authorities cited by the parties, it appears that serious doubt has occasionally been cast on the reliability of sniffer dogs.… Despite this inadequate record, this Court is nonetheless being asked to curtail Charter rights for fear of leaving a void in the law and interfering with the use of a fairly widespread police investigative technique. The Court would create a new common law rule on the basis of little more than unverified and, for us in this appeal, unverifiable assumptions.

Courts ought to avoid relying on such a weak and inadequate record as a basis for justifying an intrusion on privacy rights. A downgrading of the standard of reasonable and probable cause to a standard of reasonable suspicion in these circumstances and on the basis of this record might lead to an even looser test of “generalized suspicion,” which is in fact the standard adopted by one of the dissenting judges in this appeal. It would also tend to limit privacy rights to the possibility of obtaining some kind of remedy after the fact. Perfunctory excuses would be of little comfort to passengers and passers-by inconvenienced by an unfounded sniff and its consequences. The result would verge on honouring reasonable and probable cause in principle, while gutting it in practice through an even wider use of a standard of reasonable suspicion.

The constitution of Canada, including the Charter, is fundamental to our life in this country. The Court needs to have facts that are clear so that constitutional questions can be developed, argued, and decided in ways that will give a certain precedent to the decisions.

References and Further Reading

* Cited by the Supreme Court of Canada.

Amsterdam, Anthony G. 1973–74. “Perspectives on the Fourth Amendment.” Minnesota Law Review 58: 349–477.*

“At Sea, but Keeping a Balance.” 2008. Globe and Mail, April 26.

Australia. New South Wales. 2006. Review of the Police Powers (Drug Detections Dogs) Act 2001. Sydney: New South Wales Ombudsman.*

Australia. New South Wales. 2004. Discussion Paper: Review of the Police Powers (Drug Detections Dogs) Act. Sydney: New South Wales Ombudsman.*

Bird, Robert. 1996–97. “An Examination of the Training and Reliability of the Narcotics Detection Dog.” Kentucky Law Journal 85: 405–33.*

Brennan, Richard. 2008. “Random Searches Curbed.” Toronto Star, April 26.

Bryson, Sandy. 2000. Police Dog Tactics. 2nd ed. Calgary: Detselig Enterprises.*

Davis-Barron, Sherri. 2007. “The Lawful Use of Drug Detector Dogs.” Criminal Law Quarterly 52: 345–91.*

Eden, Robert S. 1993. K9 Officer’s Manual. Calgary: Detselig Enterprises.

Katz, Lewis R. 1989–90. “In Search of a Fourth Amendment for the Twenty-First Century.” Indiana Law Journal 65, no.3: 549–90.*

Katz, Lewis R., and Aaron P. Golembiewski. 2006–7. “Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs.” Nebraska Law Review 85: 735–92.*

Kerr, Ian, and Jena McGill. 2007. “Emanations, Snoop Dogs and Reasonable Expectations of Privacy.” Criminal Law Quarterly 52, no.3: 392–432.*

LaFave, Wayne R. 2004. Search and Seizure: A Treatise on the Fourth Amendment. 4th ed. Vols. 1 and 4. St. Paul, MN: Thomson/West.*

Lammers, Ken. 2005. “Canine Sniffs: The Search That Isn’t.” New York University Journal of Law and Liberty 1, no. 2: 845–56.*

Makin, Kirk. 2008. “Top Court Puts Leash on Random Searches by Sniffer Dogs.” Globe and Mail, April 26.

Meehan, Eugene. 2008. “The Supreme Court Defines Man’s Best Friend.” National Post, April 26.

Naumetz, Tim. 2008. “SCC Muzzles Random Police Dog-sniff Searches.” Law Times, May 5.

Ontario Ministry of Education. 2001. Ontario Schools: Code of Conduct. Toronto: Queen’s Printer.*

Pollack, Kenneth L. 1994. “Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard.” Vanderbilt Law Review 47: 803–55.*

“Random Use of Police Sniffer Dogs Breaches Charter: Top Court.” 2008. CBC.ca, April 25.

Shaw, Trevor. 2004. “The Law on the Use of Police Dogs in Canada.” Criminal Law Quarterly 48: 337–66.*

Chapter 5

Youth: Police and the Right to Be Warned

Police are often an individual’s first point of contact with the criminal process. They investigate possible criminal violations and they can detain, arrest, and lay charges against those believed to have violated the criminal law. Police can be seen as the community’s first formal agency in bringing the accused to the “dock” — or not.

Here we will discuss those special rules binding on police in dealing with the young. For the most part, the rules for police conduct or interface with the young are set out in the Youth Criminal Justice Act (YCJA), portions of which were set out in previous chapters.

The rules of conduct for police under the YCJA are mandatory. If they fail to follow the rules, the Crown prosecutor may find the case against the accused significantly weakened because the court might throw out evidence derived through improper police procedures. The YCJA, in its interpretation and enforcement, must conform to the Charter of Rights and Freedoms, which as we noted in previous chapters, is part of the Constitution of Canada.

Among the questions raised in this chapter are:

Can youths be singled out to receive greater rights than adults?

Are police required to ensure that youths understand any cautions given?

What results from police failure to give lawful cautions to youths?

There is a protective shield for youths between the ages of twelve and eighteen at the point when they are detained or arrested by police. That shield gives young people greater rights than adults may claim under similar circumstances. Much of this chapter deals with the scope of such rights for youths.

Before going to the sources of youth procedural rights, we will describe the reasons underlying their establishment, as given by the Supreme Court of Canada in the principal case discussed in this chapter: L.T.H. v. The Queen, 2008 Supreme Court of Canada Reports 49.

Justice Fish spoke for the seven-member Court majority in L.T.H. v. The Queen. This is how he began his opinion:

Young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate. Parliament has for that reason provided them by statute with a complementary set of enhanced procedural safeguards in section 146 of the Youth Criminal Justice Act, Statutes of Canada 2002, chapter 1 (YCJA), which governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences.

These rights, as we shall see, apply to all young persons between the ages of twelve and eighteen. They are cast in terms of procedural rights — such as the right to have counsel and/or an adult present before making a statement to the police. But the failure to comply with these procedural rights can have real consequences: The Crown may be denied the right to introduce such statements in evidence against the accused.

While the intent of the YCJA seems clear — protect vulnerable youth from police interrogation until they obtain the assistance of counsel or an adult — a number of questions arose in L.T.H. v. The Queen. They include:

What must police do to obtain a waiver of a young person’s right to the assistance of counsel or an adult?

Will a young person give up the right to counsel or the advice of an adult simply by making a clear statement to that effect?

Can police assume that a young person knows his/her rights to counsel or assistance of an adult if that individual has had frequent contact with the police?

Does the seriousness of the offence have any bearing on whether a trial judge will forgive police errors in obtaining a lawful waiver by a young person of the right to counsel or the advice of an adult?

To aid in understanding this chapter, we have added section 146 of the YCJA as an appendix.

The Facts of L.T.H. v. The Queen

By the time the Supreme Court of Canada handed down its decision in L.T.H. v. The Queen, the accused was nineteen and no longer a youth within the meaning of the YCJA. The Court made its decision four years after L.T.H.’s arrest. (This “coming of age” — of being a young offender at the time of arrest and moving to adult status at the time of final judgment — often occurs in YCJA cases.)

L.T.H., then fifteen, was arrested in the early morning hours of August 8, 2004, by the RCMP in Cole Harbour, Nova Scotia, following a car chase that ended only when L.T.H.’s car caught fire and was brought to a stop. Initially, he was charged with dangerous driving. Then, he was transferred to the Halifax Regional Police Service where the charges against him increased. They included theft, possession of property obtained by crime, and failing to stop — as well as the original charge, dangerous driving.

L.T.H. was taken into custody by police at about 5:00 a.m. He was asked several times if he wanted the services of a lawyer. Each time, he refused such assistance.

Several hours after the arrest, police took L.T.H. from the Cole Harbour police station to the Dartmouth police station, where he slept for a few hours. Police then transferred him to the Halifax police station, where Constable Jeffrey Carlisle interviewed him. The constable had a young offender police statement form that he reviewed with L.T.H.

The interview was videotaped, and the Crown made the tape available to the trial court judge, the appellate court, and with the consent of Crown counsel and L.T.H.’s lawyer, to the Supreme Court of Canada, which reviewed it in the appeal that gave rise to the Court’s decision.

The Interview and the Waiver

This was not the first time that police had interviewed L.T.H. In the hearing before the trial judge, his mother said she had warned the police, at the time of his arrest, that her son had a learning disability that made understanding the questions put to him difficult. In earlier encounters with the police, she said, she had to explain the questions and their meaning to her son.

However, Constable Carlisle pressed on with the interview of L.T.H. He read from questions in the form that included a statement of an accused young offender’s rights. He asked L.T.H. if he understood his rights. L.T.H. answered, “Yes.” The constable asked L.T.H. if he wanted to call a lawyer or talk with a lawyer in private. L.T.H. answered, “No.” L.T.H. also answered that he did not want a parent or “another appropriate adult” present while he gave a statement or while he was questioned.

This is not to say that L.T.H. was frozen in his replies. He did assert himself. At one point, he interrupted Constable Carlisle’s reading of the form and said he was “not going to answer all of the questions” asked.

Constable Carlisle responded that the questions were only of the “do-you-understand” type. L.T.H. raised no further objection to the questioning, and Constable Carlisle continued. He finished reading the “waiver-of-rights form,” which L.T.H. initialled. L.T.H. then signed a waiver of rights.

At that point, police took a statement from L.T.H. in which he inculpated himself. That is, he confessed to actions that formed the basis of the Crown’s case against him.

A Technicality?

Counsel for L.T.H. challenged the waiver and, with it, the statement that formed the Crown’s case against L.T.H. The trial judge agreed. She ruled that the statement could not be received in evidence. The Crown presented no further evidence. The result: The charges against L.T.H. were dismissed. An acquittal was ordered.

The trial judge accepted that L.T.H.’s statement was voluntary. But that was not enough. The trial judge said that the YCJA sets additional requirements for a youth to give a lawful waiver. In this regard, the trial judge said she was not convinced beyond a reasonable doubt that L.T.H. understood his rights and the consequences of waiving them.

The Crown appealed the decision of the trial judge. The Nova Scotia Court of Appeal allowed the appeal. It set aside the acquittal and ordered a new trial. The Court of Appeal ruled that the Crown must prove beyond a reasonable doubt that the young person was given a clear and proper statement of rights and choices under the YCJA.

But, said the Court of Appeal, the Crown does not have to prove that the young person in fact understood those rights. In this regard, the Court of Appeal acknowledged that actual (or subjective) understanding of such waiver rights is required by the YCJA.

But, having said this, it is another matter to state the level of proof required to show such understanding. That is, how does one prove actual understanding? Here, the Court of Appeal said that the Crown must prove waiver on a balance of probabilities. This is, a lower standard of proof than beyond a reasonable doubt.

The Role of Videotapes

Section 146 of the YCJA requires that the statement of a young person be taken either by videotape or in writing. With L.T.H., the statement was taken by videotape.

As we shall see, the videotape allowed the Court to see the demeanour of the constable. By that, we mean the Court could see some of the indicia as to whether the constable intended to communicate with L.T.H. and if he succeeded in that regard.

The videotape allowed the Court to see that the constable apparently intended not to make eye contact with L.T.H. Further, it allowed the Court to see that the constable rushed the waiver questions. (If the waiver were based solely on the written statement, there would be no indication that the waiver questions were rushed.)

The videotape indicated that L.T.H. did not seem take the police interview seriously. This, in turn, allowed the Court to infer that, as a young offender, he was all the more in need of the advice of a lawyer and/or an adult. With more pointed and sensitive police questioning — especially after having been given some warning by L.T.H.’s mother concerning her son’s learning difficulties — there might have been greater awareness of how much more was required to ascertain whether there had been any knowing waiver by L.T.H.

The Supreme Court Decides

L.T.H. v. The Queen was appealed to the Supreme Court of Canada. A seven-member panel of the Court heard and decided upon the matter. All members of the panel agreed with the result, though three of the justices disagreed with the test that led to that result.

For all the justices, the issue to decide upon was not one of “mere technicality” (see Tibbetts 2008). Justice Fish, who spoke for the Court majority, quoted the statement of principles in the YCJA. He wrote:

Section 3(b) of the YCJA … provides that the criminal justice system for young persons must be separate from that of adults and emphasize the following: … (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

The procedural rights set out in section 146 represent one instance of the enhanced protection Parliament has seen fit to provide for young persons. The relevant parts of section 146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (1) the statement was voluntary (section 146(2)(a)); (2) the person who took the statement “clearly explained to the young person, in language appropriate to his or her age and understanding,” the young person’s right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview) (section 146(2)(b)); and (3) the young person was given a reasonable opportunity to exercise those rights (section 146(2)(c)).

Finally, section 146(4) provides that young persons, subject to certain conditions, can waive their right to consult counsel and an adult before making the statement and can also waive the right to have counsel and the adult present when the statement is made.

There is purpose to the procedural protections of the YCJA. Justice Fish recited the Court’s view of Parliament’s reasons for enacting section 146 of the YCJA. He wrote:

This Court has consistently held that the rationale for section 146, and its predecessor (the Young Offenders Act), lies in Parliament’s recognition that young persons generally do not understand their legal rights as well as adults, are less likely to assert those rights in the face of a confrontation with a person in authority and are more susceptible to the pressures of interrogation.… Given the purpose of the provision, it would be inconsistent to find that the statutory requirements of section 146 will be complied with whenever a clearly worded form is read to a young person.

Even before the enactment of the YCJA and its predecessor, trial courts recognized that statements made by young persons should be treated differently than statements made by adults. In The Queen v. Yensen, [1961] Ontario Reports 703 (High Court), for example, McRuer (Chief Judge High Court) held that the interrogating officer must “demonstrate to the Court that the child did understand the caution as a result of careful explanation and pointing out to the child the consequences that may flow from making the statement.”

Recognizing Reality

At the same time, Justice Fish said that the trial court should not turn its head away from reality. He wrote:

The requirement of understanding and appreciation applies to all young persons, including those who are no strangers to the criminal justice system. Section 146(2)(b) incorporates principles of fairness that must be applied uniformly to all without regard to the characteristics of the particular young person.

This does not mean that experience in the criminal justice system is irrelevant to the inquiry as to the young person’s understanding. An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding.

Police officers, in determining the appropriate language to use in explaining a young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

In effect, the police are required to take the individual measure of the young person. Generalities alone will not do.

The Basis for the Majority Test

It was the view of the majority in L.T.H. v. The Queen that the test of beyond a reasonable doubt set out in section 146 reflected both the common law and the requirements of section 10 of the Charter. This is how Justice Fish stated the matter:

Section 146 gives statutory expression to common law rules and constitutional rights that apply to adults and to young persons alike. It provides, for example, that no statement by a young person to a person in authority will be admissible in evidence against that young person unless it is voluntary. And it reaffirms the right to counsel enshrined in section 10 of the Canadian Charter of Rights and Freedoms.

Parliament has recognized in this way that the right to counsel and the right to silence are intimately related. And that relationship is underscored in section 146 by the additional requirements that must be satisfied in order for statements made by young persons to be admissible against them at their trials. Parliament has in this way underscored the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.

Accordingly, section 146 provides that statements made by young persons are inadmissible against them unless the persons who took them “clearly explained to the young person, in language appropriate to his or her age and understanding,” the specific rights conferred by section 146. This condition of admissibility has been referred to as the “informational requirement” of section 146 and it raises two questions that, again, are intimately related.

The first is whether the Crown must prove not only that the necessary explanation was given in appropriate and understandable language, but also that it was in fact understood by the young person who made the statement. The second is whether compliance with the informational requirement must be proved by the Crown beyond a reasonable doubt, or only on a balance of probabilities.

Because of their interdependence … I would answer both questions together. In my view, the Crown’s evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under section 146 of the YCJA. A mere probability of compliance is incompatible with the object and scheme of section 146, read as a whole. Compliance must be established beyond a reasonable doubt.

Finally, section 146 provides that young persons, subject to certain conditions, can waive their right under that section to consult with counsel and an adult relative before making a statement and their right to have counsel and the relative present when the statement is made. As we shall see, an unbroken line of authority, beginning with Korponay v. Attorney General of Canada, [1982] 1 Supreme Court of Canada Reports 41, establishes that a waiver must be established by “clear and unequivocal [evidence] that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.” …

In this case, the trial judge was not satisfied that the Crown discharged its burden under section 146 of the YCJA. She therefore found the appellant’s statement inadmissible and ultimately entered an acquittal. The Court of Appeal disagreed. Justice Fish would have allowed the appeal and restored the acquittal at trial.

Recitation of Rights: An Appropriate Indication of Understanding?

Police arrested fourteen-year-old R.B. on a charge of car theft. They had carefully reviewed the Court’s decision in L.T.H. v. The Queen. The police chief and the Crown met and decided that the best way to determine if there had been a proper, lawful waiver was to have the accused, R.B., recite back the waiver provisions in the police waiver form. He did so.

However, such recitation are not fully acceptable within the meaning of section 146 of the YCJA. Justice Fish, in L.T.H. v. The Queen, referring to the trial court decision in that case, wrote:

I take care not to be understood to require police officers, as the trial judge apparently did in this case, to ask young persons in every case to “recite back” or “explain back” their rights.

In some instances, this may well demonstrate that the explanation was both appropriate and sufficient. And it may tend to show that the rights waived were in fact understood — which is of course essential to the validity of the waiver. But “reciting back” or “explaining back” is not transformed by its evident utility into a legal requirement under section 146.

CHALLENGE QUESTION

A Role for Standardized Forms

Q: If police used a standardized form that asked the necessary questions to determine whether an arrested youth intends to waive the right to counsel and/or having an appropriate adult attend police questioning and the taking of any statement, would the youth’s answer be useful in determining whether there has been waiver within the meaning of section 146 of the YCJA?

The Court majority in L.T.H. v. The Queen clearly held that police should make individualized judgment. This does not rule out the use of standardized forms. Rather, Justice Fish, speaking for the Court majority, said that such forms might be useful as a framework for interrogation. He wrote:

The reading of a standardized form will not normally suffice in itself to establish the sufficiency of the caution required by section 146(2)(b). Persons in authority must, in addition, acquire some insight into the level of comprehension of the young person concerned, since the mandatory explanation must be appropriate to the age and understanding of that young person. In the words of the Manitoba Court of Appeal in The Queen v. B.S.M. (1995), 100 Manitoba Reports (2d series) 151:

The simple reading of an appropriate waiver form to an accused young person will not generally constitute a clear explanation of his rights or of the consequences of signing a waiver. What will constitute a clear explanation will depend on the facts of a particular case. I would suggest that the mere reading of a waiver form accompanied by the repeated question ‘Do you understand?’ would normally fall short of satisfying the statutory requirements. Parliament has expressly stated that young people require more than the offering of information. They require not just explanations, but clear explanations that they are able to understand.…

Properly crafted and scrupulously applied, standardized forms nonetheless provide a useful framework for the appropriate interrogation of young detainees.…

In short, adherence to standardized forms can facilitate, but will not always constitute, compliance with section 146(2)(b). Compliance is a matter of substance, not form. The trial court must be satisfied, upon considering all of the evidence, that the young person’s rights were in fact explained clearly and comprehensibly by the person in authority.

The Charter and the YCJA

The Charter is part of the Constitution of Canada. Young people are covered by the rights granted under the Charter. Included in such rights are those related to police questioning. Section 10(b) of the Charter provides, “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.…”

The Charter sets the minimum requirements relating to the right to counsel. There is nothing in the Charter that prohibits Parliament from enlarging the rights afforded. And that is just what Parliament has done through section 146 of the YCJA.

What role, then, does the Charter play in interpreting and applying section 146 of the YCJA? The answer, in part, comes through the opinion of Justice Fish, speaking for the Court majority in L.T.H. v. The Queen.

Section 146 is not to be given a narrow reading. It is not to be construed as any other law. Rather, it is to be interpreted in a broad “purposive” way to achieve the legislative goal designed to protect those deemed “vulnerable” — the young.

Differences

So it is that the Court majority differed from the partial dissent of Justice Rothstein (concurred in by Justices Deschamps and Charron). Justice Rothstein would have applied common law rules of interpretation that would have placed a lesser burden on the trial judge in making findings of fact. The test he would have used to determine the acceptability of such trial court findings would have been the preponderance of the evidence.

Justice Rothstein wrote:

I have read the reasons of Justice Fish. He says that the Crown’s evidentiary burden will be discharged by evidence that the person to whom the statement was made has, before the statement is made, clearly explained to the young person, in language appropriate to his or her age and understanding, his or her rights under section 146(2)(b) of the YCJA. Evidence of actual understanding is not required. I agree. I also agree with him that the young person’s previous experience in the youth criminal justice system may be evidence that the caution was explained in language appropriate to the young person’s understanding.

As to the second issue, I agree with Fish J. that the Crown must prove beyond a reasonable doubt that the statement made by the young person was voluntary. I differ with him, however, on the standard of proof applicable to whether there was compliance by the person in authority with the informational and waiver requirements of section 146 of the YCJA. Fish J. says the standard is proof beyond a reasonable doubt. In my respectful view, the standard is proof on a balance of probabilities.…

I do agree that Parliament specifically sought to endow young persons with enhanced procedural protections in the form of the statutorily based protections in section 146 in recognition of the presumption of reduced moral sophistication and maturity of young persons. Parliament did not say, however, that the standard of proof for compliance with the informational and waiver requirements is beyond a reasonable doubt. To the contrary, Parliament stated in section 146(1) of the YCJA that the common law rule relating to the admissibility of evidence is to apply — namely, that all preliminary findings of fact relating to the use of evidence, other than voluntariness, must be determined on the balance of probabilities.

The requirements of section 146 are substantially broader than those under the Canadian Charter of Rights and Freedoms. A young person must be advised of the right to silence and warned of the potential use of any statement against him or her, as well as of the right to consult with counsel and a parent and to have those persons present while a statement is made (section 146(2)(b) of the YCJA). If any of these requirements are not satisfied, the statement will automatically be inadmissible (section 146(2) of the YCJA). In contrast, an adult only has to be informed of the reason for arrest and the right to retain counsel (section 10(a) and (b) of the Charter). Police may question an adult who has retained counsel in the absence of that legal adviser, unless the accused asks for counsel to be present. “Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (The Queen v. Hebert, [1990] 2 Supreme Court of Canada Reports 151, at p. 184, and quoted with approval in Singh, at para. 46). In the case of young persons, however, any statement made by the young person is required to be made in the presence of counsel and any other person requested by the young person, unless the young person desires otherwise (section 146(2)(b)(iv) of the YCJA).

It is by affording young persons the additional protections expressed in section 146 of the YCJA that Parliament satisfied its objective of recognizing the reduced sophistication and maturity of young persons. There is nothing in the words of section 146 that expresses or implies a standard of proof of beyond a reasonable doubt for preliminary determinations of fact. To the contrary, section 146 explicitly incorporates the applicable common law standard of proof with respect to the admissibility of evidence, namely, proof on a balance of probabilities for preliminary findings of fact.

The Court majority, however, imposed a more rigid test: The findings of the trial judge must be sustained beyond a reasonable doubt. This conclusion, said Justice Fish, better allowed the purpose of the YCJA to be carried forward. And that purpose overrode whatever might have been the common law rules of interpretation.

YOU BE THE JUDGE

Looking Like a Suspect

The Facts

Janet Soames, a police officer for the town of Britby, was a veteran with fifteen years of service. Much of that time had been spent patrolling downtown public housing developments where, as it happened, youth gangs were prevalent. For several weeks, she had watched one person in particular. He was a newcomer to the area who went by the name of Jamie Y. He was tall and muscular, and appeared to be about eighteen years old.

She was interested in him because he seemed to regularly associate with much younger youths, who appeared to be about twelve to fourteen years old. Further, Jamie not only had taken a leadership role in what the constable saw as an emerging gang, but the “games” played seem inordinately aggressive.

Constable Soames introduced herself to Jamie, and she had a number of conversations with him. She described his attitude toward her as “polite, but with a sneering undertone.” She asked him his age, and he responded, “I am old enough to know that I don’t have to give you that information.” With that, he walked away, while his friends, Constable Soames said, “looked on admiringly.”

Not long after that incident, a local variety store reported that the purse of an elderly customer who was leaving the store had been snatched by a young person, tall, and about eighteen years old. The description generally seemed to match that of Jamie.

The day after receiving the report, Constable Soames arrested Jamie on suspicion that he was the one who had grabbed the elderly woman’s purse. At the police station, she again asked Jamie his age. He angrily said, “Treat me like an adult. I don’t need a lawyer, or anyone else. I know how to deal with cops.”

Constable Soames said that she didn’t want to “take any chances” concerning whether Jamie was covered by the YCJA. Moreover, both she and her chief wanted to “get this case resolved quickly.” There was some fear of a possible rash of petty robberies from newly formed youth gangs.

For reasons unknown to the police, Jamie’s school had misplaced records of his home address and the identities of his parents. Still, Constable Soames, on the off-chance that Jamie might be a youth covered by the YCJA, gave him the opportunity to have a lawyer and/or his parents (or any other adult) present during his interrogation and any statement resulting from such questioning. Jamie, refusing to give his age, clearly and angrily refused the offer.

Jamie was questioned aggressively but fairly. He admitted that he was “on the watch” for “possible suckers, easy prey.” But he denied that he had snatched the purse of the elderly victim. “I don’t pick on old people,” he said.

A statement reflecting Jamie’s responses to police questioning was completed. Jamie read and signed it, along with a waiver stating that he did not want a lawyer or an adult present during the police questioning.

Later, Jamie was presented in a line-up for identification. The victim identified him as the person who had snatched her purse. Jamie was charged, and only at his preliminary hearing did it become known that he was fifteen years old.

At that point, Jamie claimed, through court-appointed counsel, that the waiver he gave police was not valid and, therefore, all that followed from the identification to the preliminary hearing was invalid.

The Issue

Did the Crown have to give Jamie any further opportunity for a lawyer and/or adult to have been present at the time of his detention?

Points to Consider

Section 10(b) of the Charter provides that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

Section 146 of the YCJA gives an arrested or detained youth the right to waive the right to a lawyer or adult representation.

No intimidation nor threats were used by police in questioning Jamie.

Section 146(2) of the YCJA provides, “No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless the statement was voluntary.”

Discussion

There is a strong possibility that the statement, itself, will be rejected by the court. The reason: section 146 goes on to put some rather specific content into what constitutes a “voluntary” statement — one that amounts to a waiver of the right to lawyer, and/or the right to have a parent or another appropriate adult present during any questioning and/or taking of any statement. And it is questionable whether Constable Soames met those conditions.

It is true that section 146 does allow a young person covered by its terms to waive the right to counsel and/or the presence of an adult in any police questioning. However, section 146(b)(ii) requires the police before taking a statement to inform the young person that he is under no obligation to make a statement. Constable Soames did not inform Jamie that he did not have to make a statement.

It is also true that that Constable Soames made an effort to find Jamie’s parents. Section 146(8)(b) allows the trial judge to accept any statement made by a young person if the police officer (or “other person in authority”) made reasonable inquiries as to the young person’s age and had reasonable grounds for believing that person was eighteen years old or older.

Here, in part, the question is whether reasonable efforts were made to determine Jamie’s age. In the final analysis, that is a question of fact for the judge to determine. Remember that Constable Soames was not sure of Jamie’s age. When she first encountered him, he was associating with young teenagers who appeared to be twelve to fourteen years old.

In any event, even if Constable Soames had reason to believe that Jamie was eighteen, there remained the failure of the police to inform Jamie that he didn’t have to make any statement. This right to be silent, while it is included in YCJA, also emanates from the Charter of Rights and Freedoms. (More will be said of this right in the “You Be the Judge: The Case of the ‘Trick’.”)

The Spontaneous Statement

Let’s change the facts somewhat. Suppose that at the time Constable Soames arrested Jamie, he had said, “I know why you’re arresting me. It’s about that old lady’s bag. Well, guess what? I did it! So, what are you going to do about it?”

Constable Soames did not have time to caution Jamie. She didn’t have time to tell Jamie that he had a right to counsel or a parent or an adult’s advice. He had the right to remain silent.

Section 146 of the YCJA would not prohibit Constable Soames from testifying at Jamie’s trial as to what was said at the time of arrest. Section 146(3) of the YCJA relates to oral statements. It provides: “The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.” Bear in mind, however, that it is the Crown that carries the burden of proof in demonstrating that Constable Soames did not have reasonable time to tell Jamie of his right to a lawyer and/or an adult to advise him.

YOU BE THE JUDGE

The Case of the “Trick”

Here our concern is not so much with the YCJA as with the Charter.

The Facts

Sally, age seventeen, was arrested and charged with theft. The police were aware that she was a young person within the meaning of the YCJA. They afforded her the right to counsel and to reach her parents and/or an appropriate adult and to consult with them before any questioning or before any statement was taken. Further, Sally was told that she did not have to give a statement.

Sally, through her parents, reached and spoke with a lawyer; she also spoke with her parents and another adult (a close friend of the family). The police then asked her if she was ready to make a statement. Her answer was a clear and strong “no.” She didn’t want to make any statement to the police. She said, “I’ll take my chances in court.”

Investigating police officers believed, however, not only that Sally had committed the alleged theft, but that she also was deeply involved in a youth gang. With their superior’s approval, they put Sally in a detention room with an officer in disguise as a suspect. The officer looked like a teenager.

The officer’s assignment was to get Sally to talk. She was successful. Sally made a number of highly incriminating statements not only about the alleged theft, but also about her activities with a youth gang.

At Sally’s trial on the charge of theft, the formerly disguised officer was called to testify. Her evidence was central to the Crown’s prosecution. Sally’s lawyer moved to strike such testimony and, because it was so incriminating, to have the charge against Sally dismissed.

The Issue

Are Sally’s statements to the undercover police officer protected?

Points to Consider

The undercover police officer acted on instructions from her superior.

The YCJA provisions relating to the right to counsel and advice of an adult, including parents, were satisfied. The undercover agent took no statement from Sally. Rather, she listened and reported what Sally said.

Section 7 of the Charter provides, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 10 of the Charter provides, “Everyone has the right on arrest or detention … (b) to retain and instruct counsel without delay and to be informed of that right.”

Section 24(2) of the Charter provides, “Where in proceedings [such as those before a youth court involving the charge of theft] a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Discussion

The testimony of the undercover agent likely will be rejected by the court. And, since that testimony is central to the prosecution, the charge against Sally probably would be dismissed.

It is true that the YCJA provides in section 146(2)(b)(i) the following: “the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that the young person is under no obligation to make a statement.”

Here, however, we are not dealing with a statement, as such, but rather with a conversation with an undercover agent. Further, the rights being asserted by Sally are those under the Charter, not statute.

The start-point in the discussion of this case is not the YCJA. In a broad sense, on the facts as given, the terms of that law have been satisfied, at least insofar as the right to consult with a lawyer, parents, and/or an adult. Sally refused to give a statement to the police, and they did not press her on that matter.

For the Court, the question is rather whether the Charter affords a constitutional right to be silent.

The Charter and the rights granted under it apply to everyone — including young persons.

The Right to Be Silent

The exercise in “You Be the Judge: The Case of the ‘Trick’” was built on the case of The Queen v. Hebert [1990] 2 Supreme Court of Canada Reports 151. While the facts in this case related to an adult male, the same reasoning would apply to a young person. The Court denied the Crown the use of the statements made to the undercover agent. It upheld the right of the detained person to remain silent.

Then Justice McLachlin (now chief justice) spoke for the Court majority. She stated:

The Charter, through section 7, seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand, section 7 seeks to provide to a person involved in the judicial process protection against unfair use by the state of its superior resources. On the other hand, it maintains to the state the power to deprive a person of life, liberty or security of the person provided it respects fundamental principles of justice.

The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute — in the first case because the state has used its superior power against the individual, in the second because the state’s legitimate interest in law enforcement has been frustrated without proper justification.

The right to silence conferred by section 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But, if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect’s will and negate his or her choice.

The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state. On this view, the scope of the [Charter] right must extend to exclude tricks that would effectively deprive the suspect of his choice. To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordance with the purpose of the Charter.

Charter provisions related to the right to silence of a detained person under section 7 suggest that the right must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak with authorities or to remain silent. A lesser protection would be inconsistent not only with the implications of the right to counsel and the right against self-incrimination affirmed by the Charter, but with the underlying philosophy and purpose of the procedural guarantees the Charter enshrines.

The Remedy

What remedy should the Court impose for the Crown’s violation of the accused’s right to be silent? (Bear in mind, if there were a violation of the YCJA as to the improper taking of a young person’s statement by a person in authority — such as the police — the Act clearly allows the youth court judge to refuse its use in the criminal proceeding.)

Section 24(2) of the Charter allows a court to deny the use of the police officer’s testimony where there has been a violation of the Charter right to silence and where receiving such evidence would bring the administration of justice into disrepute. Justice McLachlin, again speaking for the Court majority, ruled that it would be highly prejudicial to the accused to allow the police officer’s narration of what was said to be used in evidence. She stated:

I am of the view that the evidence sought to be adduced in this case would render the trial unfair. I should not be taken as suggesting that violation of the accused’s right to silence under section 7 automatically means that the evidence must be excluded under section 24(2). I would not wish to rule out the possibility that there may be circumstances in which a statement might be received where the suspect has not been accorded a full choice in the sense of having decided, after full observance of all rights, to make a statement voluntarily.

But where, as here, an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick [emphasis added] practised by the authorities, and where the resultant statement is the only evidence against him, one must surely conclude that reception of such evidence would render the trial unfair. The accused would be deprived of his/her presumption of innocence and would be placed in a position of having to take the stand if he/she wished to counter the damaging effect of the confession. The accused’s conviction if obtained would rest almost entirely on his own evidence against himself, obtained by a trick in violation of the Charter.

I am also satisfied that the Charter violation was a serious one. The conduct of the police was willful and deliberate. They intentionally set out on a course to undermine the [accused’s] right to silence notwithstanding his expressed assertion of that right, by having the undercover police officer engage him in conversation. It is said the police acted in good faith.… However, ignorance of the effect of the Charter does not preclude application of section 24(2) of the Charter.…

The effect of the exclusion [of the undercover officer’s testimony] in this case is serious. It would result in an acquittal, since virtually the only evidence was his statement to the undercover policeman.

Balancing these factors, I arrive at the conclusion that the test of section 24(2) is met. As the [case] authorities … amply demonstrate, it has long been felt inappropriate that an accused should be required to betray himself. Where virtually the only evidence against him is such betrayal, the effect is that the accused is required to secure his own conviction. That is contrary to the notions of justice fundamental to our system of law and calculated, in my opinion, to bring the administration of justice into disrepute.

CHALLENGE QUESTION

The Jailhouse Stool Pigeon

Q: Will the court receive the evidence of the “jailhouse” informant over a defendant’s objection as to her Charter right to remain silent?

Suppose we have the same facts as in “You Be the Judge: The Case of the ‘Trick’, ” but with this difference: The police place the accused in a detention room with another person charged with a serious offence. That person has a long criminal record, and she thinks there is a way to get the Crown to “go easy” on her. Unknown to the police and the Crown, she gets information from Sally — enough information so that if her testimony were accepted, there is little doubt that Sally would be convicted. In the parlance of the criminal world, this person is known as a “jailhouse stool pigeon.”

The court in all likelihood would receive such evidence. Justice Sopinka, concurring in the Hebert case (The Queen v. Hebert [1990] 2 Supreme Court of Canada Reports 151) said, in effect, that such an informant would not be a person “in authority.” She was not solicited to gather such information for the Crown or the police.

Justice Sopinka wrote:

So, for example, the use of a wire on a police informant in a conversation between the informant and an uncharged suspect, as described in The Queen v. Thatcher, [1987] 1 Supreme Court of Canada Reports 652, at pp. 668–69, would not implicate the constitutional right to remain silent.

Furthermore, even after charge and during detention, the right to remain silent would not be violated by the passive surveillance of a conversation between an accused and another (genuine) prisoner by an undercover officer, or an electronic device: see The Queen v. Smith, Wilson and Quesnelle, Ontario Supreme Court, November 5, 1987, unreported, in which Reid J. drew this distinction. (Though, it should be noted that in cases of electronic “participant surveillance,” different constitutional issues arise pursuant to section 8 of the Charter: see The Queen v. Duarte, [1990] 1 Supreme Court of Canada Reports 30.)

Her testimony, however, would be given limited weight largely because (1) while she was not promised a lighter sentence on conviction, she acted, in part, on the hope that her sentence would be lessened and (2) her past convictions, especially if they involved matters of credibility, such as fraud, would be brought out in cross-examination.

References and Further Reading

Hoffman, Jan. 1998a. “Police Are Skirting Restraints to Get Confessions.” New York Times, March 29.

_____. 1998b. “Police Refine Methods So Potent Even the Innocent Have Confessed.” New York Times, March 30.

“Interrogators Must Tailor Questioning of Youth, Top Court Rules.” 2008. CBC.ca, September 11.

Makin, Kirk. 2008. “N.S. Teen With Disability Did Not Understand Rights, Court Rules.” Globe and Mail, September 12.

Tibbetts, Janice. 2008. “Supreme Court Acquits Nova Scotia Teen on a Charter Technicality.” National Post, September 11.

Appendix

Youth Criminal Justice Act: Section 146

(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.

(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

(a) the statement was voluntary;

(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that

(i) the young person is under no obligation to make a statement,

(ii) any statement made by the young person may be used as evidence in proceedings against him or her,

(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

(c) the young person has, before the statement was made, been given a reasonable opportunity to consult

(i) with counsel, and

(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and

(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

(3) The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver

(a) must be recorded on video tape or audio tape; or

(b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

(5) When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.

(6) When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.

(7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.

(8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver,

(a) the young person held himself or herself to be eighteen years old or older;

(b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and

(c) in all other circumstances the statement or waiver would otherwise be admissible.

(9) For the purpose of this section, a person consulted under paragraph (2)(c) is, in the absence of evidence to the contrary, deemed not to be a person in authority.

Freedom of Expression

Acknowledgements

Acknowledgements

First, I would like to acknowledge the Supreme Court of Canada. Over the decades, the membership of this nine-person Court has altered through retirement (mandatory at age seventy-five) or death. Increasingly, the Court has tried to hand down judgments that come ever closer to being decisions that can be read, understood, and discussed by those who want to be informed about the structure of our law, of our government, and more importantly, of our society’s values. So, I thank — most profusely — the Supreme Court of Canada.

A second link in the chain between the law and the people is the media. It is possible, of course, in our highly computerized society to read the decisions of the Supreme Court of Canada online, but that can be an arduous process. On occasion, magazines such as Maclean’s feature a particular subject for investigative reporting in which the Supreme Court of Canada’s judgments (such as those relating to tobacco) may form a part. Newspapers such as the Toronto Star may select a story reflecting a matter of social concern, such as bullying. And, on a daily basis, radio or television may report on such stories.

The net effect of media reporting, at best, ranges from episodic to minimal. Perhaps the one constant to which we frequently refer in this series is the informed editorials in Canada’s national newspaper, the Globe and Mail. Without hesitating, the Globe and Mail granted the right to reprint editorials (and there were many) on Supreme Court of Canada decisions. The approach of the Globe and Mail seems to be: Let the public be made aware. I thank them for their generosity and for maintaining consistently high standards.

Ordinarily, I would say that I take full responsibility for the contents of this book. Hopefully, however, the contents do not reflect my judgments but those of the Supreme Court of Canada. My task, as I saw it, was to discuss those judgments in a nonjudgmental and accessible way.

Introduction

Introduction

There are limits to what we can say and how we can express ourselves. It may be no more than a prank, but the law likely will come down with a heavy hand on the person who simply wants to see what will happen if she shouts “Fire!” in a crowded theatre. For her it may be no more than speaking freely, “letting herself go.” For the public — frightened or injured rushing from the theatre in response to the shout — the act is careless. The state might hold the shouter criminally responsible. And those injured might even seek damages against her.

Between the right to speak or express oneself and demonstrable harm that such speech or action may cause, there is a wide area in which courts, and especially the Supreme Court of Canada, set boundary markers that, on the surface, seem clear and simple. They are embedded in the highest law of the land, the Charter of Rights and Freedoms, part of the Constitution of Canada. Section 2 of the Charter states:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

The difficulties are not in the principles, but in their application. The principles must be applied to individual situations, to facts that often reflect “legitimate” values other than those of freedom of expression. How are these values to be weighed? How are courts to decide? The facts become enormously important.

School classrooms are supposed to be places of learning. Does this allow school authorities to express points of view that may be seen as discriminatory toward a particular group? For example, if religious belief requires Sikh males to wear a kirpan (a dagger) as an expression of their faith, may school boards prohibit such action in the interest of school safety?

Freedom of expression principles can come into play in numerous settings. In this book, we show the stretch of the law in balancing the fundamental right of freedom of expression against other legitimate interests of government, especially as seen by the Supreme Court of Canada.

Who Are the Judges?

Who Are the Judges?

A few words must be said about the judges (or justices, as Supreme Court of Canada judges are called). Who are they? How are they chosen? How do they go about coming to decisions? The answer to these questions may help us better understand the decisions that we will be examining.

In 1989 Beverley McLachlin, then chief justice of British Columbia, received a telephone call from the prime minister of Canada. He asked if she would consider a new position: that of a justice of the Supreme Court of Canada.

It was within the power of the prime minister, accepted by his Cabinet, to offer the position. The appointment of a justice of the Supreme Court of Canada did not have to go through parliamentary committee or parliamentary consent, as such — a process enormously different from that of the United States, where the president nominates and the Senate, following hearing, either gives the nomination a stamp of approval or rejection. (If the Senate rejects, then the candidacy of that person comes to an end.)

Justice McLachlin thanked the prime minister, accepted his offer, and became a justice of the Supreme Court of Canada. On January 7, 2000, the prime minister offered Justice McLachlin the position of chief justice of the Supreme Court, and she accepted.

There are nine justices who make up the Supreme Court of Canada. The conditions for their appointment are few, but they are important. They are appointed through the prime minister and the Governor in Council. In this regard, the “pool” for appointment by law is comprised of superior court judges or barristers with at least ten years in practice in a province or territory.

Once named to the Supreme Court, a justice cannot be removed from office so long as the justice carries out her/his duties in accordance with the law. But, at the age of seventy-five, there is forced retirement. (However, many retired justices are called back to serve in appointments such as chairing special commissions.) A serving justice can only be removed from office for bad conduct or incapacity (such as illness).

By law, the prime minister is required to appoint three justices from Quebec. By tradition, the prime minister also appoints three justices from Ontario, two from the West, and one from Atlantic Canada.

How the prime minister goes about selecting a justice for the Supreme Court, given the broad limits described, is for the prime minister to determine. In 2012 Prime Minister Stephen Harper set new guidelines. He named a panel of five members of the House of Commons: three Conservatives (the prime minister’s governing party), one New Democrat, and one Liberal. Their task was to review a list of qualified candidates put forward by the federal justice minister in consultation with the prime minister, the chief justice of the Supreme Court of Canada, the chief justice of Quebec (where the next justice was to be selected), the Attorney General of Quebec, and provincial and territorial bar associations (as well as public suggestions).

The panel was instructed to submit a list of three recommended candidates — unranked — to the prime minister and he would select one from that list. A public hearing before a special parliamentary committee would be held before the prime minister finalized the appointment.

The first justice selected through the process described above was Richard Wagner, who was a long-time trial lawyer before becoming a justice of the Quebec Court of Appeal. In an interview with the Globe and Mail, Justice Wagner said: “I might surprise you, but I liked the [hearing] process. There is nothing to hide. I think a judge should follow the directions of society, and that means to explain to citizens what we do, how we do it and why we do it. I think it’s fair and it’s reasonable.”

A central concern, said Justice Wagner, is ensuring access to the justice system for all Canadians.

Some Facts

On the whole, it can be said that justices of the Supreme Court of Canada historically do not like to talk about themselves. But, there are some facts that may give rise to questions going to the makeup of the Court:

There have been no persons “of colour” appointed to the Supreme Court of Canada.

There have been no persons from among the “first peoples” (First Nations, Métis, and Inuit) appointed to the Supreme Court of Canada.

The fact is that white men, drawn from an elite part of the legal profession, constituted the “pool” from which justices of the Supreme Court of Canada were drawn — at least until 1982. In that year — at the time the Charter of Rights and Freedoms, an important part of the Constitution of Canada, came into effect — the prime minister named the first woman to the Supreme Court: Bertha Wilson. She had immigrated to Canada with her husband John, a Presbyterian minister in Scotland, in 1949.

Justice Wilson had received an M.A. in philosophy at the University of Aberdeen. Once in Canada, she applied for admission to the law program at Dalhousie University in Halifax. She recalled an interview with the dean of the law school, and chuckled about it later. The dean advised her to “go home and take up crocheting.” She didn’t. She entered the Dalhousie law program in 1955 and was called to the Nova Scotia Bar after graduation.

In 1959 Justice Wilson moved to Toronto where she found employment with a leading law firm and later became head of research for that firm. Her job consisted in no small measure in writing opinions for members of the firm — a task that went a long way toward preparing her for work as a judge.

Justice Wilson received an invitation in 1979 to sit as a judge on the Ontario Court of Appeal. Her immediate response was surprise — and then laughter when, as a judge whose opinions reflected women’s rights, she said: “I’ll have to talk it over with my husband.” She accepted the position on the Court of Appeal and served there until her appointment to the Supreme Court of Canada.

Justice Wilson was a Supreme Court justice from 1982 to 1991, retiring at the age of sixty-eight. There, she had an important role in interpreting the then newly-established Charter of Rights and Freedoms, including decisions relating to a woman’s right to abortion (The Queen v. Morgentaler [1988] 1 Supreme Court of Canada Reports 30) and a spouse’s right to claim self-defence to murder based on physical abuse by her/his spouse (called in law the battered wife syndrome) (The Queen v. Lavallée [1990] 1 Supreme Court of Canada Reports 852).

Since the appointment of Justice Wilson, a number of women have served as justices of the Supreme Court of Canada. In 2012, after serving as a justice for what she called ten “intense” years, Justice Marie Deschamps of Quebec resigned at the age of fifty-nine. (At that time, there were four women sitting as justices.) In an interview with CBC News a week after her resignation, Justice Deschamps was asked about “gender balance” on the Court. She answered, “I think every court should aim for half and half.... It’s important that [the Court] is balanced.... I hope that the government will maintain at least four women on the Court. Whether the next candidate is a woman or it’s the one that follows it will be for the government to decide.”

In fact, the prime minister named Justice Richard Wagner of Quebec to the Court, thus lowering the number of women justices (at least for the time) to three.

It should be noted that the chief justice at the time of Justice Deschamps’s resignation was Beverley McLachlin (CBC.ca, August 15, 2012).

How Are Judges to Decide?

May emotion play a role in decision-making? For us, in reviewing decisions of the Supreme Court of Canada (or the decisions of any court, for that matter), an important question is whether justices can decide a case largely on the facts and the law as given. Can they remove (or largely isolate) any individual bias?

There are two parts to the answer — at least as applied to the Supreme Court of Canada:

No single justice decides a case. If the Court sits as a panel, there usually are seven justices who meet, discuss, and work toward an opinion which the chief justice usually assigns to a specific justice. If there is disagreement that cannot be otherwise resolved, then the way is open to a written dissent or a concurring opinion. (Often the justices are able to work out their disagreement to form a majority or a unanimous opinion.)

A case may be one that summons enormous emotion. Such was the case of Robert Latimer, a Saskatchewan farmer charged and convicted in the “mercy” killing of his disabled daughter. Twice the case went on appeal to the Supreme Court of Canada. The second time, the appeal was from a judgment of the Saskatchewan Court of Appeal that had increased a sentence of one year to ten years.

In a decision by the Court as a whole in the Latimer case — not one attributed to any particular justice — the Supreme Court of Canada affirmed the judgment. The role of emotion in coming to decision was lessened.

Justice Ian Binnie, on his retirement after serving fourteen years on the Court, commented on the Latimer case in an extensive interview with Kirk Makin of the Globe and Mail:

The Robert Latimer case was a hugely controversial case, but to me, the legal outcome was straightforward. You can’t have people making their own judgments as to whether their child should live or die.

In saying that, I make no moral judgment about what Latimer did. I accept his word that he did it because he thought it was best for his daughter.

But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows from the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.

So, there is no necessary [relation] between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant (Globe and Mail, September 23, 2011).

References and Further Reading

Fitzpatrick, Meagan. “Supreme Court Should Have Four Women Says Retiring Justice,” CBC.ca, August 15, 2012.

Makin, Kirk. “Justice Ian Binnie’s Exit Interview.” Globe and Mail, September 23, 2011.

_____. “Supreme Court Judge Warns of ‘Dangerous’ Flaws in the System.” Globe and Mail, December 12, 2012.

Chapter 1

Advertising: From Political Activists to Graffiti Artists

The major case discussed in this chapter illustrates the principle of freedom of expression and the difficulties of “detail” in applying that principle. The case was a unanimous judgment from the then eight-member Supreme Court of Canada (Greater Vancouver Transportation Authority and Canadian Federation of Students — British Columbia Component, and British Columbia Teachers Federation, and the Attorney General of British Columbia, 2009 Supreme Court of Canada Reports 31). We shall call it the bus case.

Students and teachers wanted the right to buy advertising panel space on buses operated by the authorities that were controlled by the city government. As a matter of “policy,” their request was denied. The students and the teachers went to court. They wanted a declaration that the denial was a violation of their Charter right to freedom of expression.

Among the questions raised in this chapter are:

Does the city have a right to control how its buses will be used?

Do the rights set out in section 2(b) of the Charter impose duties only on government?

On what terms, if any, must the city sell advertising space to the students and the teachers?

Can the city set standards that advertisers must meet?

If the advertising attacks others, should there be a legal right to reply?

The Facts of the Bus Case

The Greater Vancouver Transportation Authority (TransLink) and British Columbia Transit (BC Transit) are corporations that operate public transportation systems in British Columbia. TransLink is responsible for running the transit system in the area under the authority of the Greater Vancouver Regional District (GVRD). BC Transit operates in British Columbia communities outside the GVRD. For years, the “transit authorities” have earned revenue by posting advertisements on their buses.

In the summer and fall of 2004, the Canadian Federation of Students — British Columbia Component (CFS) and the British Columbia Teachers’ Federation (BCTF) — tried to buy advertising space on the sides of transit authority buses. The CFS, a society that represents thousands of college and university students in B.C., wanted to encourage more young people to vote in a provincial election scheduled for May 17, 2005, by posting, on buses, ads about the election. The first ad, which was to run the length of the bus, would have depicted a silhouette of a crowd at a concert with this text:

Register now. Learn the issues. Vote May 17, 2005.

ROCK THE VOTE BC.com

The second ad was a “banner ad” to be placed along the top of the bus that would have had one long line:

Tuition fees ROCK THE VOTE BC.com
Minimum wage ROCK THE VOTE BC.com
Environment ROCK THE VOTE BC.com

The BCTF, a society and trade union that represents more than forty thousand public school teachers in B.C., sought to voice its concern about changes in the public education system. Its ad would have stated:

2,500 fewer teachers, 114 schools closed.

Your kids. Our students. Worth speaking out for.

Both transit authorities refused to post the ads because they were contrary to their advertising policies. The transit authorities had adopted essentially identical advertising policies, which stated:

2. Advertisements, to be accepted, shall be limited to those which communicate information concerning goods, services, public service announcements and public events.

...

7. No advertisement will be accepted which is likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy.

...

9. No advertisement will be accepted which advocates or opposes any ideology or political philosophy, point of view, policy or action, or which conveys information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office.

The Supreme Court of Canada gave its decision five years after the attempts were made to place the ads on the buses. Many of the events giving rise to the requests for the ads had passed. Still, the case went forward. The students and the teachers wanted a court declaration that they had a Charter right to buy advertising on Vancouver-owned buses.

The Supreme Court Ruling

The Court unanimously agreed that the Vancouver transportation policy forbidding political advertising, as stated above, was a violation of section 2(b) of the Charter’s right to freedom of expression. In this regard, the Court, through its opinion given by Justice Deschamps, stated that the violation could not be overridden by section 1 of the Charter. That is, the city government had not demonstrated that the limitation in its advertising policy was a reasonable limit that could be demonstrably justified in a free and democratic society. Thus, the limits set out in the transportation policy were not valid.

At the start, the Court stated that neither the teachers nor the students were barred from buying bus advertising. The prohibition came in terms of what they wanted to say in that advertising. Here the Court drew a distinction between government support of the activity of the teachers and students, and government simply making its bus panel advertising space available as it had done for others for several decades.

Section 2(b) of the Charter

Justice Deschamps, speaking for the Supreme Court of Canada, stated: “The [teachers and students] seek the freedom to express themselves — by means of an existing platform they are entitled to us — without undue state interference with the content of their expression. They are not requesting that the government support or enable their expressive activity by providing them with a particular means of expression from which they are excluded.”

Justice Deschamps went on to spell out the application of section 2(b) of the Charter to the proposed bus advertising:

The very fact that the general public has access to the advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government-owned space.

Moreover, an important aspect of a bus is that it is by nature a public, not a private, space. Unlike the activities which occur in certain government buildings or offices, those which occur on a public bus do not require privacy and limited access. The bus is operated on city streets and forms an integral part of the public transportation system.

The general public using the streets, including people who could become bus passengers, are therefore exposed to a message placed on the side of a bus in the same way as to a message on a utility pole or in any public space in the city. Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings. Thus, rather than undermining the purposes of section 2(b), expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self-fulfillment.

In sum, this is not a case in which the Court must decide whether to protect access to a space where the government entity has never before recognized a right to such access. Rather, the question is whether the side of a bus, as a public place where expressive activity is already occurring, is a location where constitutional protection for free expression would be expected.

I do not see any aspect of the location [bus panel advertising] that suggests that expression within it would undermine the values underlying free expression. On the contrary, the space allows for expression by a broad range of speakers to a large public audience and expression there could actually further the values underlying section 2(b) of the Charter. I therefore conclude that the side of a bus is a location where expressive activity is protected by section 2(b) of the Charter.

Section 1 of the Charter

The city government claimed that its advertising policy was adopted to “provide a safe, welcoming public transit system.” This objective, the city government stated, warranted placing limits on freedom of expression.

Justice Deschamps accepted the validity of the transit policy. The difficulty the Court saw was a rational connection between that policy and denying the students and teachers the right to purchase advertising space for the messages set out or, more generally, for political advertising. Justice Deschamps stated:

I accept that the [advertising] policies were adopted for the purpose of providing “a safe, welcoming public transit system” and that this is a sufficiently important objective to warrant placing a limit on freedom of expression. However, ... I am not convinced that the limits on political content imposed by articles 2, 7 and 9 [of the transit authorities’ policies] are rationally connected to the objective. I have some difficulty seeing how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users.

It is not the political nature of an advertisement that creates a dangerous or hostile environment. Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or it advocates violence or terrorism — regardless of whether it is commercial or political in nature — that the objective of providing a safe and welcoming transit system will be undermined.

Had I found a rational connection between the objective and the limits imposed by articles 2, 7 and 9, I would nevertheless have concluded that the means chosen to implement the objective was neither reasonable nor proportionate to the respondents’ interest in disseminating their messages pursuant to their right under section 2(b) of the Charter to freedom of expression.

The policies allow for commercial speech but prohibit all political advertising. In particular, article 2 of the policies limits the types of advertisements that will be accepted to “those which communicate information concerning goods, services, public service announcements and public events,” thereby excluding advertisements which communicate political messages.

Article 7, on the other hand, refers to prevailing community standards as a measuring stick for whether an advertisement is likely “to cause offence to any person or group of persons or create controversy.” While a community standard of tolerance may constitute a reasonable limit on offensive advertisements, excluding advertisements which “create controversy” is unnecessarily broad. Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society. Finally, article 9 represents the most overt restriction on political advertisements, as it bans all forms of political content regardless of whether the message actually contributes to an unsafe or unwelcoming transit environment. In sum, the policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse. They therefore do not constitute a minimal impairment of freedom of expression.

Limiting Bus Advertising

Question: Does the ruling in the bus case mean that government cannot limit bus advertising?

Answer: No.

Justice Deschamps, speaking for the Court, was clear on this point. Drawing an analogy to tobacco advertising and criminal law sanctions against indecency, she wrote:

A limit that is not justified in one place may be justified in another. And the likelihood of children being present matters, as does the audience’s ability to choose whether to be in the place. In Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 Supreme Court of Canada Reports 610, at paras. 93–94, one of the provisions at issue limited tobacco advertising that was appealing to young people or was published in places frequented or publications read by young people. This provision was held to be justified on the basis of the need to protect youths because of their vulnerability.

In the criminal law context, this Court has held that the concept of indecency in the Criminal Code depends in part on location in that conduct that is indecent in one place may not be indecent in another more private place: [The Queen] v. Labaye, [2005] 3 Supreme Court of Canada Reports 728, at paras. 42–43; [The Queen] v. Tremblay, [1993] 2 Supreme Court of Canada Reports 932, at pp. 960–61.

In effect, Justice Deschamps said, advertising on buses has become a widespread and effective means for conveying messages to the general public. In exercising their control over such advertising, the transit authorities failed to minimize the impairment of political speech, which is at the core of section 2(b) protection. The Supreme Court concluded that, to the extent that articles 2, 7, and 9 prohibit political advertising on the sides of buses, they place an unjustifiable limit on the [students’ and the teachers’] right under section 2(b) of the Charter to freedom of expression.

Another Point of View

An editorial published in the Globe and Mail on July 11, 2009, took a position different from that of the Supreme Court of Canada in the bus case:

A city bus is not a democracy wall. The Supreme Court of Canada seems to think it is. It has just said — unanimously — that the Canadian Charter of Rights and Freedoms requires that public bus companies allow their advertising space to be used for political advocacy.

So here is a young woman, on her way to have an abortion. Her bus pulls up. From front to back is an advertisement from an anti-abortion group, likening what she is about to do to an act of murder. Does she feel comfortable on that bus?

Or there is a war in the Middle East. “Stop Israel’s Gestapo Tactics,” reads the ad. The next bus pulls up. “Stop Arab Terrorism,” it says. Do the passengers feel comfortable on that bus?

Of course they don’t. And it’s not as if they can simply turn the page in a newspaper if an advertisement offends them. Many of them are “captive” passengers who can’t afford cars or taxis. They’re on the bus because they don’t have a choice.

The bus companies involved in the Supreme Court case — the Greater Vancouver Transportation Authority and British Columbia Transit — are in a better position than the Supreme Court to understand the sensibilities of their customers. Their policy allows for commercial ads, not political ones, to preserve “a safe, welcoming public transit system.” The Supreme Court conceded that the goal is praiseworthy, but “it is difficult to see how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users.”

One pictures the judges sitting around their oak conference table scratching their heads over the nature of a bus, somewhat in the manner of the blind-men-and-the-elephant parable.

Public transit companies need revenue, and so they advertise; the usual commercial considerations around their customers’ sensibilities should apply. Instead the Supreme Court has denied them the discretion “not to publish” as they see fit, a discretion common among the privately owned media. The result, as Madam Justice Mary Southin of the B.C. Court of Appeal said three years ago in dissent [in the bus case], “is to diminish the dignity of the Charter, the underlying purpose of which, surely, was to protect the citizen from oppression by those set in authority over him.” A bus is no longer just a bus, and the Charter is not quite the same Charter, either (Globe and Mail, July 11, 2009).

A Matter of Application

Question: Does the Charter impose duties on private businesses?

Answer: No. The Charter applies to government. Section 32 of the Charter states: “This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.”

Suppose in the bus case that the provincial government, in effect, privatized bus transportation in the greater Vancouver area. Assume that this was done by establishing two separate and completely independent corporations where the full ownership was held by residents of British Columbia through their government. The corporations, under our facts, were subject to the same laws as any other corporation or business in the province.

Now assume that the new corporations established the same rule as the previously operated bus authorities: No advertising space would be sold where the object is political solicitation.

Would the new corporations be subject to the Charter?

A Charter-Free Zone?

In the bus case, the Supreme Court of Canada gave section 32 a broad interpretation to embrace Charter protection. The Court stated: “On the face of the provision, the Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities.”

The Court then cited its earlier decision in Godbout v. Longueuil (City), [1997] 3 Supreme Court of Canada Reports, 844, where Justice Gérard La Forest explained the reasoning for the broad reach of section 32:

Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are — as a simple matter of fact — governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies. In other words, Parliament, the provincial legislatures and the federal and provincial executives could simply create bodies distinct from themselves, vest those bodies with the power to perform governmental functions and, thereby, avoid the constraints imposed upon their activities through the operation of the Charter.

Clearly, this course of action would indirectly narrow the ambit [scope] of protection afforded by the Charter in a manner that could hardly have been intended and with consequences that are, to say the least, undesirable. Indeed, in view of their fundamental importance, Charter rights must be safeguarded from possible attempts to narrow their scope unduly or to circumvent altogether the obligations they engender [emphasis added].

Yet, having said this, the fact remains that if the entity in question is not performing government functions, it will not be covered by the Charter. In the bus case, the Court stated:

Thus, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be “government,” either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter. If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.

Technology: New Choice?

Question: Should courts consider alternatives when claims are made that public forums have been blocked to those who want to exercise their right to free expression? In this regard, should the courts be open to the development of new technology as a channel for expression?

Answer: Yes, to both questions. In the bus case, the Supreme Court of Canada stated that the case was not one in which the Court had to decide whether to protect access to a space where the government entity had never before recognized a right to such access. Rather, the question was whether the side of a bus, as a public place where expressive activity is already occurring, is a location where constitutional protection for free expression would be expected.

Justice Deschamps stated:

I do not see any aspect of the location that suggests that expression within it would undermine the values underlying free expression. On the contrary, the space allows for expression by a broad range of speakers to a large public audience and expression there could actually further the values underlying section 2(b) of the Charter. I therefore conclude that the side of a bus is a location where expressive activity is protected by section 2(b) of the Charter.

Consequently, I conclude that since the transit authorities’ policies limit the respondents’ right to freedom of expression under section 2(b), the government must justify that limit under section 1 of the Charter.

(Note: Generally, the Court will consider only those matters that have been brought before it. There is nothing in the bus case to indicate that the Court was briefed on the use of the Internet as an alternative forum to that of a bus. Of course, it is always possible for the Court, once it receives briefs from the parties, or even after oral arguments before the Court, to request further written submissions. Again, however, there is nothing to indicate that such submissions were sought in relation to the “new technology of the internet.”)

Consumer Revenge: “United Breaks Guitars”

Until July 2009, Dave Carroll, a young Canadian musician, leader of a small band (with three others, including his brother, Don) known as the Sons of Maxwell, could not be called a celebrity. But, he had “gigs” that brought him to different parts of Canada and the United States. That month, the band had been playing in Halifax, Nova Scotia. They were then scheduled to play in Nebraska. They took a plane from Halifax to Chicago’s O’Hare Airport. From there they were to fly United Airlines to Nebraska.

From his passenger window in Chicago, Carroll saw United Airlines ground employees treating his $3,500 Taylor custom acoustic guitar roughly. When he collected the guitar in Nebraska, he discovered it had been damaged. He informed United employees, both in Chicago and later in Nebraska, of what he had seen. The response: There was nothing they could do.

Carroll did not let the complaint end. For nine months, he tried to get United to acknowledge responsibility. His goal was not a financial settlement. Rather, his goal became of one getting a major carrier to be more sensitive to customer complaints.

A Different Tack

At the end of the year, Carroll took another approach. He asked himself: “What would Michael Moore do?” His response was to use his talent to reach the airline. He wrote a song he titled “United Breaks Guitars.” It was an entertaining country-western tune that told the story of what had happened to his guitar.

Carroll posted a performance of the song on YouTube. It was referenced on Twitter, and noted on Carroll’s blog with a brief statement of the events that led to its composition. The refrain of the song, in part, goes: “United breaks guitars.... You broke it, you should fix it.”

On its first day of posting, 154,301 persons viewed the video. Within a few more days, the number increased to 221,882. And, a few weeks later, the number climbed to 3,442,616. Because of the reach of the Internet, the song was heard around the world. CNN gave it two minutes of viewing time. And, it was screened on CBC and CTV national news in Canada.

One comment, seemingly typical, stated: “On behalf of all musicians who have suffered similar experiences at the hands of airline employees, thanks for posting this great video. It definitely struck a chord with me (pun intended).”

United soon was on the phone with Carroll. The airline wanted to “make things right.” Carroll made it clear that he didn’t want any money. But, he did agree that United make a contribution to a charity of the airline’s choosing so long as he was informed who received it.

United also made it clear that it intended to use the video for “training purposes.” It provided a “learning opportunity” for the airline.

The Point

Carroll, like the B.C. students and teachers, had a message directed toward a large audience. The students and the teachers wanted people to turn out the vote on election day. In part, their means was advertising on bus side panels. Carroll wanted to reach actual and potential customers of United Airlines with a view toward getting the airline to rethink its approach to customer complaints.

On the face of it, the relative costs were significantly different: If the students and teachers persisted in bus advertising, they would have to pay — just as any advertiser. And the costs presumably would be substantial. Carroll had minimal costs. He did not have to pay Twitter or YouTube, as such. This is not to say that there weren’t expenses in the making of the video. But, there were no expenses for the broadcast of the video.

Graffiti or Art? The Artist Brought to account

Shepard Fairey, an American born in 1970, creates what some describe as guerilla-style art and others describe as graffiti. In 2008 his poster entitled Hope — an art poster rendering of Barack Obama — became symbolic of the presidential campaign that brought Obama to office.

Fairey is known for clambering over fences and scaling walls to paint or otherwise render his (what some call) “propagandistic” art — simple, strong pictures. He often does not seek permission from the owners of property on which his art appears. And, often the owners of the property subject to Fairey’s art have sought police assistance.

By 2009 Fairey had been arrested fourteen times. He was usually charged with a misdemeanor, among the least serious of crimes, the record of which is erased after six months. He usually pleaded guilty and paid a fine.

In July 2009 Fairey pleaded guilty to three vandalism charges in Boston (one charge of defacing property and two charges of wanton destruction of property) as part of a plea bargain that saw prosecutors drop eleven other vandalism charges. The judge sentenced Fairey to two years of probation, a fine of $250, and an order to pay $2,000 to a graffiti removal organization.

(It may be asked whether Fairey must “struggle” to pay such fines. The answer is probably no at this stage in his career. Individual works of his art have now brought him as much as $85,000, and studio signed prints $20,000. However, climbing fences and scaling walls may affect his health. He suffers from diabetes, and wears an insulin drip pack under his shirt.)

Art and “Street Art” Converge

The acts that led to vandalism charges in Boston occurred as Fairey was taking part in an art exhibition of his work in the city. Jill Medvedow, Boston Director of the Institute of Contemporary Art (ICA), said of Fairey: “He’s raising important issues about consent and who decides what we see in public places.... It gives Boston an opportunity not just to engage but to help lead that debate.”

The ICA was happy that Fairey’s legal issues with the Boston Police had been resolved and that the focus could now return to where it belonged: on his artistic accomplishments, his outstanding exhibition at the ICA, and the meaningful contributions he had made to the visual and political culture of his country.

Fairey’s exhibition, titled Supply and Demand, included a retrospective of more than 250 works. He had been named “Icon Maker of the Year” by Time magazine. His ubiquitous Hope poster became an iconic image of Obama’s presidential campaign.

The retrospective, the first solo museum show for the street artist, explored the breadth of Fairey’s artistic practice — from screen prints of political revolutionaries and rock stars, to recent mixed-media works and a new mural commissioned for the ICA show.

More than one hundred thousand people saw the Fairey showing — the highest number of visitors for a single exhibition since the opening of the ICA’s new building on the Boston waterfront. The exhibition then moved to the Andy Warhol Museum in Pittsburgh, and from there to the Contemporary Arts Center in Cincinnati.

You Be the Judge

The Band Comes to Town

The Facts

Kenneth Ramsden’s band had two “gigs” scheduled in the City of Peterborough, Ontario. His audience would be drawn largely from city residents. It seemed to him that a good way to publicize the event and attract an audience was to place posters on hydro poles on public land. Glue was used to fasten the posters to hydro poles for each event.

City officials, however, did not want the postering. A city by-law, not unlike that of many other municipalities, had been enacted concerning postering. The by-law stated:

No bill, poster, sign or other advertisement of any nature whatsoever shall be placed on or caused to be placed on any public property or placed on or attached to or caused to be placed or attached to any tree situated on any public property within the limits of the City of Peterborough or on any pole, post, stanchion or other object which is used for the purpose of carrying the transmission lines of any telephone, telegraph or electric power company situated on any public property within the limits of the City of Peterborough.

Every person who contravenes this by-law is guilty of an offence and liable upon summary conviction to a penalty not to exceed two thousand dollars ($2,000.00) exclusive of costs for each and every such offence.

Ramsden was charged twice under the by-law. He was brought before a justice of the peace, and he was found guilty and fined. His constitutional argument that his right to freedom of expression had been violated was rejected by the court.

The parties, however, agreed that “postering on utility poles can constitute a safety hazard to workers climbing them and a traffic hazard if placed facing traffic.” They also agreed that “abandoned posters or those left for an unreasonable length of time may constitute visual and aesthetic blight and contribute to litter.”

Ramsden’s appeal to the Provincial Court was dismissed. His further appeal to the Court of Appeal was allowed by a majority of the members of the court who found that the by-law infringed on his freedom of expression and was not justifiable under section 1 of the Charter. Accordingly, Ramsden’s convictions were set aside and acquittals were entered.

The Issue

Under the Charter, was the by-law lawful?

Points to Consider

The event Ramsden postered was a for-profit venture. It was not a charitable event.

The Charter is part of the Constitution of Canada. As such, all laws must conform to the Charter.

Section 2(b) of the Charter provides: “Everyone has the following fundamental freedoms: … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Section 1 of the Charter provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Discussion

The Supreme Court of Canada ruled the city by-law unconstitutional. It was a violation of section 2(b) of the Charter that could not otherwise be sustained under section 1 of the Charter as a “reasonable limit prescribed by law as can be justified in a free and democratic society.” Justice Frank Iacobucci handed down the Court’s unanimous decision in Ramsden v. Peterborough (City), [1993] 2 Supreme Court of Canada Reports 1084.

Is Postering “Expression”?

The start point in the Court’s analysis was to ask:

1. Was postering the hydro poles “expression” within the meaning of section 2(b) of the Charter? And, in that regard, did it convey meaning?

If the answer is yes, then Ramsden would have made out a prima facie (that is, initial) case that his section 2(b) right to freedom of expression had been violated. It was his burden to prove the prima facie violation. Then, if he did so, the burden would shift to the city to prove that it was justified in limiting Ramsden’s freedom of expression within the meaning of section 1 of the Charter.

On the face of it, the answer must be yes. The postering, said the Court, was an effective and relatively inexpensive way to inform those who read the poster of the band’s coming events. The Court concluded: “Regardless of whether the posters concerned constitute advertising, political speech or art, it is clear that they convey a meaning. Therefore, the first part of the section 2(b) test is satisfied.”

Ramsden had not simply placed graffiti on the hydro poles.

2. Is commercial postering protected by section 2(b) of the Charter?

Although Ramsden’s messages were commercial, Justice Iacobucci said that they served a social purpose. They were a way to communicate. He quoted from the testimony of art historian Robert Stacey, author of The Canadian Poster Book: 100 Years of the Poster in Canada, in a human rights matter:

[Mr. Stacey] testified it was early recognized that posters were an effective and inexpensive way of reaching a large number of persons. In order to be effective, posters of course must be affixed to a surface and publicly displayed. Posters are traditionally used by minority groups to publicize new ideas or causes. Posters are both a political weapon and an educational device.

According to Mr. Stacey, one measure of the openness of a democratic society has been the willingness of the authorities to allow postering.... Posters are an economic way of spreading a message. Utility poles have become the preferred postering place since the inception of the telephone system….

Posters have always been a medium of communication of revolutionary and unpopular ideas. They have been called “the circulating libraries of the poor.” They have been not only a political weapon but also a means of communicating artistic, cultural and commercial messages. Their modern day use for effectively and economically conveying a message testifies to their venerability through the ages.

I would adopt this characterization of the relationship between the message and the forum in the present case. In my view, it is clear that postering on public property, including utility poles, fosters political and social decision-making and thereby furthers at least one of the values underlying section 2(b)….

It is clear that the effect of the by-law is to limit expression. The absolute prohibition of postering on public property prevents the communication of political, cultural and artistic messages. The [City of Peterborough] did not dispute that the effect of the by-law is to restrict expression, but rather argued that postering on public property does not further any of the values underlying section 2(b). As I have already concluded, the expression in question promotes political and social discourse, one of the underlying purposes of section 2(b). Therefore, the respondent has established a violation of section 2(b), and the analysis now proceeds to section 1.

Was the By-Law Justified under Section 1 of the Charter?

The City of Peterborough still could (and did) argue that the by-law could be saved through section 1 of the Charter. An otherwise unlawful violation of section 2(b) might be ruled lawful if it were a reasonable limit that could be demonstrably justified in a free and democratic society.

Justice Iacobucci examined the purpose of the by-law. He said that it was not intended to censor any particular message. In fact, it was “content-neutral.” It was intended to stop all messages delivered in a certain way — by placing them on hydro poles and other public property. By forbidding such postering, the City wanted (a) to avoid litter, and (b) to prevent traffic hazards to persons involved in traffic maintenance and repair.

Justice Iacobucci said there was merit in such legislative goals. And, there was no doubt that the no-postering by-law achieved these ends. But, did that meet the test of section 1?

The answer is no. The by-law suffered from the defect of overkill. Bear in mind that section 1 of the Charter is a defence to a violation of a fundamental freedom — freedom of expression. The exceptions are to be read narrowly to allow as much of the impinged freedom as possible to survive. Justice Iacobucci stated:

The question therefore becomes whether the by-law restricts expression as little as is reasonably possible. The limitation at issue in the present case is a complete ban on postering on public property.... With regard to the objectives identified by the appellant in the present case, worker safety is only affected with respect to posters attached to wooden utility poles. The by-law extends to trees, all types of poles, and all other public property. Traffic safety is only affected where posters are displayed facing roadways. The application of the by-law is not so restricted.

What Could Have Been Done?

Question: Was it possible for the City to have a by-law which could have achieved the values Justice Iacobucci found valid under the Charter — that would have permitted postering and, at the same time, eliminated littering and prevention of traffic hazards?

Answer: Yes. Justice Iacobucci referred to another case where the court spelled out what a more precise anti-postering by-law could allow:

Such values might equally be preserved by regulating the use of the poles for such purposes by specifying or regulating the location, the size of posters, the length of time that a poster might remain in any location, the type of substance used to affix posters, and requiring that the posters be removed after a certain specified time. If necessary, a reasonable fee could be imposed to defray costs of administering such a system….

These kinds of alternatives could control the concerns of litter and aesthetic blight in a manner which is far less restrictive than the by-law. In my view, the total ban on postering on public property does not impair the right as little as is reasonably possible, given the many alternatives available to the [City].

You Be the Judge

Tobacco: A Ban on Advertising and Promotion

You probably know the outcome of this case. However, what may not be so clear are the issues and the reasoning that brought the Supreme Court of Canada to its decision. And, those matters really are what drive court decision-making. They allow us to understand more readily how courts, and especially the Supreme Court of Canada, reach decisions.

The Facts

The case is a challenge by the tobacco industry against a wide range of legislative prohibitions of advertising and promotional tobacco consumer practices. The legislation with which we are concerned is included in the Tobacco Act of 1997 (Statutes of Canada, chapter 13). The case pitted tobacco manufacturers against the Attorney General of Canada, who was supported by a number of provincial attorneys general and the Canadian Cancer Society.

The tobacco manufacturers challenged six parts of the law:

Its effect on funded scientific publications;

provisions dealing with false, deceptive and erroneous promotion;

advertising appealing to young persons;

prohibition of “lifestyle” advertising;

a ban on sponsorship promotion; and

requiring health warning labels on much of tobacco packaging.

Significant evidence was presented in Parliamentary hearings in support of the then-proposed law. But, in the final analysis, that evidence would not be binding on the Supreme Court because it was not subject to challenge by way of cross examination and the presentation of contrary evidence.

The constitutionality of the Tobacco Act was challenged. In support of the law, the government presented to the trial court detailed evidence that the limits on free expression were, in the words of section 1 of the Charter, demonstrably justified. The trial judge found: “Tobacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs. We now know that half of smokers will die of tobacco-related diseases and that the costs to the public health system are enormous. We also know that tobacco addiction is one of the hardest addictions to conquer and that many addicts try to quit time and time again, only to relapse.”

Still, the tobacco companies argued against the constitutionality of the Tobacco Act. For our purposes, we will deal only with the Tobacco Act’s advertising limits on lifestyle promotions and sponsorship.

The Issue

Are the limits placed on such advertising valid under the Charter?

Points to Consider

Section 2(b) of the Charter provides as a fundamental right freedom of expression.

This right applies to commercial statements, including advertising, so long as it fits within those social values deemed covered by the Charter.

There is no question that the Tobacco Act does violate the section 2(b) right of the tobacco companies.

However, government may override the right to freedom of expression if such action comes as a result of law and it can be seen as demonstrably justified in a free and democratic society. Such is the thrust of section 1 of the Charter.

The government has the burden of proving that its actions in banning or otherwise modifying tobacco advertising is justified under section 1 of the Charter.

As part of the government’s burden, it must prove that the law challenged is reasonably related to a wrong sought to be remedied — that it is, in effect, proportional.

Discussion

The Supreme Court of Canada, in a unanimous decision handed down by Chief Justice McLachlin, upheld the Tobacco Act. The case was Attorney General of Canada v. JTI-Macdonald Corp., [2007] 2 Supreme Court of Canada Reports 610.

We will address two of the more important issues raised in the appeal to the Supreme Court — first by describing them in somewhat more detail, and then giving the Court’s reasoning for sustaining the applicable law. Bear in mind that the tobacco companies argued that an important reason for striking these provision was their vagueness.

Lifestyle advertising is defined broadly under the Tobacco Act. It means “advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.”

Sponsorship ban, under the Tobacco Act, means that tobacco manufacturers are not permitted to use their brand elements or names to sponsor events, nor to put those brand elements or names on sports or cultural facilities. (Not included in the ban, contrary to arguments made by the tobacco manufacturers, is the right to sponsor sporting or cultural events without the use of their name or brand attribution. In effect, they could become unknown givers.)

The companies said that the law, as interpreted by the attorney general, was difficult to understand. It simply was not clear what practices were intended to be deemed unlawful. And, if the practices were not clear, then how could it be said that Parliament intended to only impose the minimum amount of sanctions necessary to remedy the wrong found? Or, as the Supreme Court had earlier ruled, the restraint on free expression must be proportional — a balance between the wrong to be remedied and the means chosen to effect that end.

The Task of the Decision-Maker

The language of the Tobacco Act, on its face, was by no means clear. In part, the reason reflected the difficulty of Parliament to come to grips with claims and advertisements that could slip by the intent of public policy. Parliament wanted to ensure a means for bringing tobacco claims now and in the future to account — to ensure that neither claims of health nor promotional pitches, especially to the young, would be tolerated. So, the Court read the legislative language in a way that was proportional. This is what the chief justice said in part:

Parliament ... was concerned with emotions and images that may induce people to start to use or to increase their use of tobacco. Parliament used these terms in the context of its purpose — to prevent the increase of tobacco consumption through advertising and to confine permissible advertising to hard, factual data directed to confirmed smokers. The provision should be construed accordingly.

The reference to “positive or negative” emotion poses a further difficulty (both of which were condemned in the Tobacco Act). One would expect lifestyle advertising to evoke a positive emotion about the lifestyle and the use of the product. However, it is not beyond the ingenuity of advertisers to rely on negative emotions to subtly persuade. A lifestyle depiction that sends messages of non-smokers being left out of the crowd or being seen as unsophisticated comes to mind.

And, what is the effect of qualifying “way of life” in [the Tobacco Act] with the words “such as one that includes glamour, recreation, excitement, vitality, risk or daring”? The words “such as” indicate that “way of life” is not limited by the terms that follow. Rather, they are to be read as illustrations of lifestyle advertising….

Read in this way, the prohibition on lifestyle advertising is reasonable and demonstrably justified under section 1 of the Charter. As with the other challenged provisions, the pressing and substantial nature of Parliament’s objective is beyond challenge.

The record is replete with examples of lifestyle advertisements promoting tobacco products. It amply establishes the power of such advertisements to induce non-smokers to begin to smoke, and to increase tobacco consumption among addicted smokers. It also establishes the sophistication and subtlety of such advertising. Lifestyle advertising spans the spectrum from the bold association of the Marlboro man with cowboy culture to the subtle suggestion emerging from a cup of coffee or a bath scene that evokes tobacco use through learned prior imagery.

The sophistication and subtlety of lifestyle advertising are reflected in the means Parliament has chosen to deal with it. A ban on lifestyle advertising must catch not only clear associations, but subtle subliminal evocations. Hence the inclusion of advertising that “evokes a positive or negative emotion or image.” There is a rational connection between this provision and Parliament’s objective. Minimal impairment is also established.

True information and brand-preference advertising continues to be permitted under [the Tobacco Act]. Such advertising crosses the line when it associates a product with a way of life or uses a lifestyle to evoke an emotion or image that may, by design or effect, lead more people to become addicted or lead people who are already addicted to increase their tobacco use. Finally, the proportionality of the effects is clear. The suppressed expression — the inducement of increased tobacco consumption — is of low value, compared with the significant benefits in lower rates of consumption and addiction that the ban may yield.

The challenge of dealing with today’s sophisticated advertising of tobacco products is not insignificant. The distinction between information and brand-preference advertising directed to market share, on the one hand, and advertising directed to increased consumption and new smokers, on the other, is difficult to capture in legal terms. Parliament in its wisdom has chosen to take the task on. Properly interpreted, the law it has adopted meets the requirements of justification under section 1 of the Charter.

Sponsorships

Yet, what can be said of sponsorships? Isn’t the reality that sponsorships are just another kind of lifestyle advertising? For example, isn’t sponsorship by cigarette manufacturers of tennis tournaments just another way of inferring that tennis, a vigorous life, and smoking go together? If so, what is the need for additional legislation relating to a ban on sponsorships? This is what the chief justice, speaking for a unanimous Court, stated:

Tobacco manufacturers have a long tradition of sponsoring sporting and cultural events and facilities as a means of promoting their product and, they would argue, acting as good corporate citizens. Parliament, in the Tobacco Act, has chosen to ban the promotion of these sponsorships. The question is whether that ban is constitutional.

Section 24 of the [Tobacco Act] bans the display of tobacco-related brand elements or names in promotions that are used, directly or indirectly, in the “sponsorship of a person, entity, event, activity or permanent facility.” Section 25 goes further and prohibits the display of tobacco-related brand elements or names on a permanent facility, if the brand elements or names are thereby associated with a sports or cultural event or activity. Together, these sections mean that tobacco manufacturers are not permitted to use their brand elements or names to sponsor events, nor to put those brand elements or names on sports or cultural facilities.

Two questions arise. The first is whether the general ban on sponsorship is constitutional. Since it clearly limits freedom of expression under section 2(b) of the Charter, the only issue is whether it has been shown to be justified under section 1 of the Charter. The Supreme Court stated:

The prohibition of sponsorship promotion is rationally connected to the legislative goal for the same reasons as for the prohibition on lifestyle advertising. Similarly, since the ban on lifestyle advertising is accepted as minimally impairing, so is the ban on sponsorship. A finding of minimal impairment is reinforced by the fact that Parliament phased in the ban over five years so that it would not have a disruptive impact. I would also note that, contrary to their assertions, the manufacturers are not prohibited from sponsoring anything; they are only prohibited from using the fact of their sponsorship to gain publicity.

The second question, the use of corporate names in sponsorship, is more complicated. The Supreme Court stated:

Parliament’s objective, once again, is clearly pressing and substantial.... The evidence establishes that as restrictions on tobacco advertising tightened, manufacturers increasingly turned to sports and cultural sponsorship as a substitute form of lifestyle promotion. Placing a tobacco manufacturer’s name on a facility is one form such sponsorship takes. The prohibition on sponsorship by means of names on facilities in section 25 only applies to facilities used for sports or cultural activities, not for all facilities. The aim of curbing such promotion justifies imposing limits on free expression.

Nor is the means chosen to achieve the objective disproportionate. The element of rational connection is made out. Placing a corporate name on a list of sponsors or on a sports or cultural facility may promote the use of tobacco in a number of ways. This is clear when the corporate name is connected with the brand name of a tobacco product.... But even where there is no [stated] connection between the corporate name and the brand name of a tobacco product, the corporate name may serve to promote the sale of the tobacco product.

Connections may be established in a variety of ways. The corporate name may, without referencing a brand name, nevertheless contain a reference to tobacco. Or the corporate name may have historically been associated with tobacco. The evidence established the tobacco industry’s practice of using shell corporations as an element in brand identification. Associations between the parent company and the shell company may persist in the public mind. As a result, the corporate name in the sponsorship promotion or on the building or facility may evoke a connection with the shell company and its brand.

Given the nature of the problem, and in view of the limited value of the expression in issue compared with the beneficial effects of the ban, the proposed solution — a total ban on the use of corporate names in sponsorship promotion, or on sports or cultural facilities — is proportional. And in view of the limited value of the expression in issue compared with the beneficial effects of the ban, proportionality of effects is established.... I conclude that the impugned sponsorship provisions are a reasonable limit justified under section 1 of the Charter.

Background to the Tobacco Act: Second Time Around

The Tobacco Act was not the first time Parliament tried to regulate advertising and sales practices of tobacco companies. Only two years before the Tobacco Act, the Supreme Court of Canada was called upon to review similar legislation, which it struck down as unconstitutional — a violation of the Charter right to freedom of expression under section 2(b).

The new act, the Tobacco Act, was an attempt to remedy the defects of the old law. This was done, in no small measure, based on a kind of template laid out by the Supreme Court of Canada in its earlier rulings. And, it was done, in part, based on Parliamentary hearings and lower court findings of fact which were quite detailed as to the health hazards of tobacco use. As well, there were differences in the new law compared to the old law.

The Supreme Court of Canada set out the background for the Tobacco Act in the second time around. It stated:

Before analyzing the six disputed aspects of the legislative and regulatory scheme, it is necessary to set the stage by discussing the historical background of the legislation and its social and legal contexts.

In 1995, this Court struck down the advertising provisions of the Tobacco Products Control Act (Statutes of Canada 1988, chapter 20): RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 Supreme Court of Canada Reports 199. This Act broadly prohibited all advertising and promotion of tobacco products, subject to specific exceptions, and required affixing unattributed warning labels on tobacco product packaging.

The majority of the Court in that case held that the provisions limited free expression and that the government had failed to justify the limitations under section 1 of the Charter. In particular, the government, by failing to show that less intrusive measures were not available, had failed to establish that the limits met the requirement of minimal impairment developed in The Queen v. Oakes, [1986] 1 Supreme Court of Canada Reports 103 (McLachlin J., at paras. 163 and 165, and Iacobucci J., at para. 191). While the majority agreed that section 1 justification on issues such as this does not require scientifically precise proof, it found that the absence of virtually any proof was fatal to the government’s case. The trial judge had found that the requirements for justification were not met on the evidence. The majority concluded that on the record before it, there was no basis to interfere with the trial judge’s conclusion.

In response to the Court’s decision in RJR, Parliament enacted the Tobacco Act and Regulations at issue on these appeals. The scheme of the new legislation, in broad terms, involved permitting information and brand-preference advertising, while forbidding lifestyle advertising and promotion, advertising appealing to young persons, and false or misleading advertising or promotion. In addition, the size of mandatory and attributed health warnings on packaging was increased from 33 percent to 50 percent of the principal display surfaces. In general, the new scheme was more restrained and nuanced than its predecessor. It represented a genuine attempt by Parliament to craft controls on advertising and promotion that would meet its objectives as well as the concerns expressed by the majority of this Court in RJR.

The government’s response to the inevitable challenge to the new scheme, when it came, also reflected the Court’s decision in RJR. The government presented detailed and copious evidence in support of its contention that where the new legislation posed limits on free expression, those limits were demonstrably justified under section 1 of the Charter.

Parliament was assisted in its efforts to craft and justify appropriately tailored controls on tobacco advertising and promotion by increased understanding of the means by which tobacco manufacturers seek to advertise and promote their products and by new scientific insights into the nature of tobacco addiction and its consequences. On the findings of the trial judge in the present case, tobacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs. We now know that half of smokers will die of tobacco-related diseases and that the costs to the public health system are enormous. We also know that tobacco addiction is one of the hardest addictions to conquer and that many addicts try to quit time and time again, only to relapse.

Moreover, the international context has changed since 1995. Governments around the world are implementing anti-tobacco measures similar to and, in some cases, more restrictive than Canada’s. The WHO Framework Convention on Tobacco Control (2003), 2302 U.N.T.S. 229, which Canada ratified in 2004, mandates a comprehensive ban on tobacco promotion, subject to state constitutional requirements. The Convention, with 168 signatories and 148 parties, is one of the most widely embraced of multilateral treaties. Domestically, governments now widely accept that protecting the public from second-hand smoke is a legitimate policy objective. Many provinces have banned smoking in enclosed public places, and some are legislating to recover health care costs from tobacco manufacturers and to restrict tobacco promotion even further than the federal Tobacco Act. The tobacco industry has been criticized for its use of light and mild cigarette designations, which the manufacturers agreed in 2006 to discontinue following an investigation by the Competition Bureau.

None of these developments remove the burden on the Crown to show that limitations on free expression imposed by the legislation are demonstrably justified in a free and democratic society, as required by section 1 of the Charter. The mere fact that the legislation represents Parliament’s response to a decision of this Court does not militate for or against deference…. The legal template set out in Oakes and RJR remains applicable. However, when that template is applied to the evidence adduced by the government in this case more than a decade later, different conclusions may emerge. RJR was grounded in a different historical context and based on different findings supported by a different record at a different time. The Tobacco Act must be assessed in light of the knowledge, social conditions and regulatory environment revealed by the evidence presented in this case.

The Questions Continue

Tobacco companies have put resources into packaging. A study led by David Hammond, a professor of health studies at the University of Waterloo, Ontario found that cigarette packaging, itself, may influence consumer perceptions. For example, the lighter the packaging bearing words like “smooth” and “filter,” the more likely consumers are to identify the cigarettes contained with fewer health hazards. The study was conducted in Ontario and involved six hundred adults.

Professor Hammond said: “Cigarette packaging is associated with false beliefs about the risks of cigarettes and obviously that’s a problem.... The pack is now the most important marketing tool in Canada.”

References and Further Reading * Cited by the Supreme Court of Canada.

Barak, Aharon. 2007. “Proportional Effect: The Israeli Experience.” University of Toronto Law Journal 57:369.*

Cameron, Jamie B. 1992. “A Bumpy Landing: The Supreme Court of Canada and Access to Public Airports under Section 2(b) of the Charter.” Media & Communications Law Review 2: 91.*

Daily Kos. “Obama Poster Artist Shepard Fairey Cops Plea, Sentenced to Probation.” July 14, 2009.

Globe and Mail.“Captives of Democracy.” July 11, 2009.

Hogg, Peter W., Allison A. Bushell Thornton and Wade K. Wright. 2007. “Charter Dialogue Revisited — Or ‘Much Ado About Metaphors.’” Osgoode Hall Law Journal 45: 1.*

Kanter, Michael. 1992. “Balancing Rights under Section 2(b) of the Charter: Case Comment on Committee for the Commonwealth of Canada v. Canada.” Queen’s Law Journal 17: 489.*

Makin, Kirk. “Transit Must Allow Political Ads: Court.” Globe and Mail, July 11, 2009.

Mehta, Diana. “Snazzy Cigarette Packaging Has Consumers Thinking the Product Is Less Lethal.” The Record, July 28, 2009.

New York Times “Shepard Fairey.” March 12, 2009.

Stacey, Robert. 1979. The Canadian Poster Book: 100 Years of the Poster in Canada. Toronto: Methuen Publishers.

Stelter, Brian. “Time Cover Sure Looks a Lot Like a Campaign Image.” New York Times, December 21, 2008.

Chapter 2

Hate: A Private Matter?

The dictionary defines hate as: “intense hostility and aversion usually derived from fear, anger, sense of injury.” In this chapter, our focus is on how the law treats hate — especially in the context of the Charter right to freedom of expression. Here it is important to bear in mind some of the limits of law. Law is an expression of public policy establishing defined rights and punishing defined wrongs. How does this apply to hate?

One can hate alone, and the law does not forbid this. (After all, how could the law objectively probe and prove the inner working of the mind?) Nor does law prohibit hate expressed to another in private conversation. Nor does law prevent the opinion of hate directed against an individual, as such, even though that opinion is broadly expressed. (However, making that expression a statement of fact, publicly stated, that is false and harms the person attacked may be a basis for an individual action in libel or slander by the person harmed.)

To say that an individual may have the legal right to hate, and under certain circumstances to even express and act upon such hate, is not to put a stamp of state approval on such action. After all, the state is not the only force in society. There are other powerful societal moral forces, like religion. In a number of ways, for example, Christianity and Judaism both strike at hate through the expression of the “Golden Rule.” Do unto others what you would have them do unto you. And, do not do unto others what you would not have them do unto you.

Among the questions raised in this chapter are:

Does the law control expressions of hate?

Does it matter whether such expressions are directed against an individual or a group?

In law, are opinions treated differently than statements of fact?

What is the role of deportation (forced removal from the state) for those who incite hate?

The law, among other things, does set limits on the intentional expression of hate publicly stated against any “identifiable group.” Here the expression is a communication carried to the public. And, the attack is not just against an individual, but it is against a group. Indeed, the communication may not even mention an individual’s name. It may be an attack against a race, or a religion, or those of a particular ethnic group.

The law against hate is legislation under the Criminal Code and/or the human rights codes of the federal government and the provinces. And, the law does not end with targeted expressions of hate against identifiable groups. Parliament has recognized that public expressions of hate may give rise to calls for violence, and even result in violence itself directed against individuals, such as hate-inspired assault, and in action designed to undermine the state itself.

The language and action of hate against groups, in turn, may impact on public security — on peace, order, and good government. When such threats occur, they may be perceived as a danger to national security. To meet such challenges, Canada (like many other nations, especially since the terrorist bombings in the United States on September 11, 2001) has enacted heightened criminal restrictions that have been applied to those who have used hate to threaten the country’s security. Examples of such hate include intimidating minorities from freely enjoying their rights as citizens, or even urging public unrest to undermine the government in the pursuit of goals such as “white supremacy.”

Human rights codes and criminal laws are statutes created by the legislatures. They can be changed (strengthened or weakened) generally as the legislatures see fit. In a democracy, these lawmaking bodies are voices of democracy. In Canada, human rights codes are used to further equality and to promote human dignity by preventing discrimination against individuals and identifiable groups. In human rights codes, punishment is not the end sought for violations. Rather, remedies are imposed to correct what has been found unlawful. However, the criminal law is used to punish actions resulting in hate crimes and hate propaganda.

In this chapter, we will examine cases involving the criminal law, as well as one involving national security applied to the deportation of a Canadian resident who was returned to his native Germany, there to face a hate crime that falls outside the net of Canadian hate offences. Ordinarily, criminal laws are interpreted narrowly. The reason: they can result in punishment, including imprisonment, and a loss of individual freedom. But, when those laws relate to hate, we tend to see them given a broad, or purposive interpretation. The reason: they are intended to foster the important value of human dignity.

These very laws, however, must conform with the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the highest law of the nation. Except under rare situations (when, for a limited time, application of the Charter can be suspended by a provincial legislature or Parliament), no statute can conflict with its provisions. Charter freedoms are guarantees against government, not individual, action. And, where there is conflict, it is to be settled, in the final analysis, by the courts, with final judgment from the Supreme Court of Canada.

(It should be noted that the Supreme Court may point the way that the legislature might remake questioned laws to satisfy Charter demands. Time and again, the Court has noted that it is a co-equal part of government and, if possible, it will suggest, in any specific case, the zone in which a legislature might act to shape acceptable constitutional public policy.)

Key among the Charter provisions, for our purposes, is section 2(b) which provides that “everyone has the following fundamental freedoms … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication….” The expression and communication of hate certainly falls within the protection of section 2(b). Anti-hate laws are government action directed against individual expression. Are such laws, in and of themselves, not violations of the Charter? The answer is yes. If so, are they not then unconstitutional and thus invalid?

The answer is not necessarily. The reason: The Charter has another relevant provision that conditions the application of section 2(b). Section 1 provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it [such as section 2(b) — freedom of expression] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

An anti-hate law can be constitutional if, in the words of section 1 of the Charter, it is a “reasonable limit” set by law which can be “demonstrably justified in a free and democratic society.” Among other things, to pass constitutional muster, such a law must be designed to realistically meet a legitimate government objective in the context of a free and democratic society. Valid government objectives could be seen as protecting citizen rights to equality, for example, and preventing such actions as might undermine democratic government institutions.

This chapter centres on two cases, one decided by the Supreme Court of Canada and the other an opinion of the Federal Court of Canada: The Queen v. Krystopher Krymowski, Ryan Douglas Marshall and others, Supreme Court of Canada, February 24, 2005 (the Roma case), and In the Matter of Ernst Zundel, Federal Court of Canada, February 24, 2005 (the Zundel case). Both cases concern the law and expressions of hate.

A Matter of Interpretation: The Roma Case

When Canadians think about discrimination against identifiable groups, their thoughts often turn to race, religion, and ethnic or national origin. The Roma case, however, decided by a unanimous Supreme Court of Canada on February 24, 2005, is concerned with the identification of the group against whom attacks were made. The issue was presented under the Criminal Code’s anti-hate law (Revised Statutes of Canada 1985, chapter C-46). First, we will present the facts of the case and the rulings of the trial and appellate courts, and then the anti-hate law, the decision of the Supreme Court, and background concerning the Roma people.

The Facts

The facts that gave rise to the charges against the defendants arose on August 26, 1997. It was more than four years later that the matter reached the Supreme Court, where a decision was handed down — one which we shall see did not result in finding the accused either guilty or innocent of the charges made against them.

On August 26, 1997, according to Justice Louise Charron, who gave the Court’s opinion, about twenty-five persons demonstrated in front of the Lido Hotel in Scarborough, Ontario (located in the Greater Toronto Area). At the time, the hotel was being used by government to house a number of Roma refugees as they awaited the outcome of their claims to enter Canada as political refugees.

The demonstrators included several who were juveniles, and others whose clothing and appearance were described in some of the popular press as “typical skinhead.” The Toronto Star described the demonstration as one of “neo-Nazi skinheads and their supporters” (Toronto Star, February 25, 2005).

The demonstrators carried placards displaying messages such as the following: “Honk if you hate gypsies”; “Canada is not a trash can”; “You’re a cancer to Canada”; and “G.S.T. — Gypsies Suck Tax.” Their chants included such statements as: “Gypsies out”; “White power”; and “How do you like Canada now?” Some of the demonstrators were seen giving the Nazi “Seig Heil” salute, and Nazi and American Confederate flags were in evidence.

The Crown charged six persons (four adults and two juveniles) who, it was claimed, took part in the demonstration and violated Canada’s anti-hate law. The trial lasted forty-seven days. The Crown presented its case. But, the defence called no evidence. It argued that the Crown had failed to prove an essential element of the offence charged: All of the Crown’s evidence pointed to statements made allegedly by the accused against gypsies. There was no evidence that linked gypsies to Roma.

The trial judge agreed with the defence: It was necessary for the Crown to prove that “gypsies” and “Roma” were the same — that they were, in the words of the trial court, “interchangeable terms.” The Crown asked for the opportunity to reopen that phase of its case and prove what the judge demanded. The request was refused. In effect, the trial court strictly read the anti-hate law. This was, after all, a criminal law under which an accused, if found guilty, could be imprisoned. One’s liberty, a fundamental freedom, could be denied by the state. For that reason, as a general matter, criminal laws are not broadly interpreted.

The Supreme Court Decides

The appellate court agreed that the trial judge acted within its authority and that there was no basis for review. The case came before the Supreme Court.

Justice Charron noted the Court’s earlier decision in The Queen v. Keegstra, [1990] 3 Supreme Court of Canada Reports 697, in which the Court upheld the constitutionality of the anti-hate law against claims that it violated the Charter guarantee of freedom of expression. There, the Court said that the law created a defined “narrowly confined offence that suffers from neither overbreadth nor vagueness.” The Court stated that to prove the offence requires, in effect, a specific intent to promote hatred, defined as “the most severe and deeply-felt form of opprobrium [contempt],” that is publicly made and focuses on an identifiable group. Justice Charron then summarized the current anti-hate law.

The defence conceded that the Roma are an “identifiable group” within the meaning of the law. As such, the Roma historically had been subject to Nazi persecution, including extermination. Yet, said defence counsel, it remained to be proved that the accused, as part of the demonstration, made the statements challenged. But, more importantly, for purposes of the appeal to the Supreme Court, there was the question as to whether the Roma were the target of the conduct of the accused.

In effect, said Justice Charron for the Court, the trial judge made an important error of law. It was the sum of all the circumstances of the demonstration that determined whether the anti-hate law had been violated. Whether that law had been violated could not be determined by looking only to whether “Roma” and “gypsies” were interchangeable terms. She wrote:

The relevant questions to be asked with respect to this element of the offence were whether the Crown had proved beyond a reasonable doubt that the [accused] made some or all of the statements alleged … and whether the statements made, as a matter of fact, promoted hatred of the Roma.

It was incumbent upon the trial judge to look at the totality of the evidence and draw appropriate inferences to determine whether the [accused] intended to target “any section of the public distinguished by colour, race, religion or ethnic origin,” in this case, the Roma people. Several items of evidence potentially related to this issue. The reference to “gypsies” was but one item of evidence to consider.

Among other things, the trial judge in his reasons for judgment referred to the following evidence as fact: (1) The motel outside of which the [accused] demonstrated was temporarily housing the refugee claimants who were awaiting the outcome of their claims. (2) Some of the [demonstration] participants were seen giving the “Seig Heil” Nazi salute. (3) Nazi and American Confederate flags were used in the demonstration. And (4) the chant “White power” was heard during the demonstration. Furthermore, the defence concession expressly linked Nazi persecution to the Roma people.

Hence, the ethnic flavour to the demonstration, the fact that it was situated outside a motel housing refugee claimants who were at times described by the witnesses as Roma, and the fact that Roma people are a group historically persecuted by the Nazis while the Nazi theme was apparent at the demonstration, were all factors to consider, in addition to the actual words used, in determining whether Roma were the target of the hate speech. In focussing entirely on one of the specific statements particularized in [the charges made against the accused], the trial judge misdirected himself as to the essential elements of the offence. In doing so, he erred in law.

The Court set aside the acquittals of the accused, and ordered a new trial. Recall that forty-seven days had been used simply to present the Crown’s case, and that the defendants offered no evidence. They had relied on the legal claim that the demonstration was directed against gypsies and not Roma. Defence counsel told the media that, if the Crown chose to prosecute again, they would mount a full defence. The Crown, however, decided not to retry the case.

Why Not Use the Term “Gypsies”?

Question: If the Crown believed that the terms “Roma” and “gypsies” were in fact interchangeable, why was that not indicated by the prosecution in the charges laid (called the “information”)?

Answer: The Ontario Court of Appeal commented on this in the Roma case. It stated that the Crown had destroyed its own case by referring to gypsies as Roma in the hope of not ruffling ethnic sensitivities. The term “gypsy” is seen by many as pejorative, that is, degrading. An estimated 3,000–4,000 Canadians of Roma descent live in the Greater Toronto Area (Globe and Mail, February 24, 2005).

The Anti-Hate Law

Section 319 of the Criminal Code sets out the anti-hate law:

§319(2): Every one who, by communicating statements, other than in private conversation, that wilfully promote hatred against any identifiable group is guilty of

an indictable offence and is liable to imprisonment for a term not exceeding two years; or

an offence punishable on summary conviction.The term “identifiable group” is defined in §318(4) as meaning any section of the public distinguished by colour, race, religion or ethnic origin.Certain defences are set out under §319(3) which include the following:

§319(3) No person shall be convicted of an offence under subsection (2)

if he establishes that the statements communicated were true;

if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Evidence without Proof?

Question: Was it possible for the Crown to prove that the terms “gypsies” and “Roma” were interchangeable without witness testimony?

Answer: Yes. This is called judicial notice. It means that a court may accept without the requirement of proof those facts that are generally accepted “as not to be the subject of debate among reasonable persons,” or that are demonstrated by “readily accessible sources of indisputable accuracy.”

Justice Charron noted that the Crown presented the trial judge with five dictionaries, all of which showed a relationship between the terms Roma and gypsy. She quoted from the New Oxford Dictionary of English (1998), which defined gypsy as “a member of a travelling people with dark skin and hair, speaking a language [Romany] related to Hindi, and traditionally living by seasonal work, itinerant trade, and fortune-telling. Gypsies are now found mostly in Europe, parts of North Africa, and North America, but are believed to have originated in the Indian subcontinent.”

Romany was defined as “the language of the gypsies, which is an Indo-European language related to Hindi. It is spoken by a dispersed group of about one million people, and has many dialects.”

Justice Charron, speaking for a unanimous Supreme Court, wrote: “The dictionary definitions presented to the trial judge hence showed that ‘gypsy’ can refer to an ethnic group properly known as ‘Roma,’ ‘Rom,’ or ‘Romany.’ I see no reason why the trial judge should not have taken judicial notice of that fact and then considered it, together with the rest of the evidence, to determine whether there was proof beyond a reasonable doubt that the [accused] did in fact intend to target Roma.”

Gypsies: Who Are They?

The Roma, along with the closely-related Sinti, are the two largest groups among those who are commonly referred to in English as gypsies. They originated in northern India and now are found mostly in Europe and parts of North Africa, and also in North and South America. (The Sinti are located mainly in northwestern Europe.) They speak a distinct Indo-Iranian language known as Romany.

Traditionally, gypsies were nomads who travelled in groups of households of varying sizes, under the authority of a chief (elected for life). They worked as horse-traders, metal- or basket-workers, wood-carvers, and fortune-tellers. Gypsy music, performed in public exclusively by men, has for many years been highly popular in Central Europe.

Gypsies have often been persecuted, most notably under the Nazis when as many as one-half million are estimated to have perished between 1939 and 1945. Then, postwar communist regimes throughout Eastern Europe forced gypsies to settle in high-rise housing blocks in industrial towns, breaking up extended families and forcing them to work in factories.

Post-communist democratic governments have allowed gypsies to form political parties and to campaign for recognition as an ethnic minority. Associations and pressure groups have been formed to campaign for special schools, and for books in the Romany language. However, the majority still face racial discrimination (especially in Romania), are poorly housed, often unemployed, and often have a lower life expectancy than the rest of the population.

Challenge Question

A Different Demonstration?

Assume the same facts as in the Roma case, with this exception: Neither the placards nor the shouted statements made any mention of gypsies or the Roma. Rather, the thrust of the demonstration was so-called “white power,” and the demand was that the immigration door to Canada be closed.

Other features of the demonstration in the Roma case remain. For example, many of the demonstrators appeared to be “skinheads,” in terms of their shaved heads and the clothing they wore. They gave the Nazi salute (“Seig Heil”), and carried Nazi and American Confederate flags. They clustered around the motel where the Roma seeking refugee status were housed.

Q: Under the anti-hate law, can it be said that the Roma were a target of the demonstration?

This was a question posed by Justice Charron in the Roma case. She stated: “To illustrate the point, it may be useful to consider whether the offence [violation of the anti-hate law] could be made out even if the demonstrators had made the same statements but without using the word gypsies.”

The point to which Justice Charron referred — and it is key to the Supreme Court decision in the Roma case — is the need for a trial court to look to all the evidence to determine whether the accused demonstrators intended to target any section of the public because of their colour, race, religion, or ethnic origin.

A trial court would have to view the evidence and ask itself if it was reasonable to infer that the demonstrators intended, looking at all the facts, to target the Roma not only as possible immigrants, but as people to be kept out of Canada specifically because of race and/or ethnic origin.

You Be the Judge

The Case of “False News”

This case is real. It involves a private prosecution, one where an individual issues a complaint on behalf of the Crown. The individual does not have to prove that she has been directly injured. Rather, she must prove that the law under which she is permitted to bring suit has been violated by the accused.

The Facts

Sabina Citron, a Canadian citizen, was a survivor of Nazi Germany’s death camps where six million Jews were slaughtered and hundreds of thousands of others, including gypsies, homosexuals, and those deemed mentally retarded, also were murdered during the Second World War. The Nazis claimed this was necessary in order to eliminate so-called undesirables and establish the supremacy of the Aryan and, more particularly, the German “race.” The word Holocaust has been used to denote this mass murder and, more recently, any mass murder of a group.

Citron urged the Crown to prosecute Ernst Zundel, then head of Samisdat Publishers of Toronto, for violating the “false news” law as set out in section 181 of the Criminal Code: “Everyone who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”

At the heart of Citron’s charge was that Zundel was a Holocaust denier, one of a group of so-called “revisionist” historians who said that claims about the Holocaust were part of a worldwide conspiracy to get money from the postwar German government and sympathy for the State of Israel. Initially, the Crown refused to prosecute. But, at a later point, the Crown joined the action against Zundel.

The Crown’s case was focussed. It stated that Zundel had published a pamphlet titled Historical Facts No. 1, Did Six Million Really Die? Truth at Last Exposed. He had written the preface and afterword. The author of the pamphlet was described as: “Richard Harwood … a writer and specialist in political and diplomatic aspects of the Second World War. At present he is with the University of London.” In fact, however, the piece was produced in England in 1977 by Richard Verral, editor of the neo-Nazi British newspaper, National Front.

Verral stated why the pamphlet was important. What he referred to as the “Anglo-Saxon world” was threatened, he said, by the international community’s attack against all forms of racism following what has been called the Holocaust. He claimed that many countries, notably Britain and the United States, were then facing the “gravest danger posed by the alien races in their midst.” He argued that unless immigration of Africans and Asians to Britain was stopped, racial conflict would result in the destruction of the British people.

Verral questioned what happens “if a man dares to speak of the race problem, of its biological and political implications.” He said that the man would be branded as the “most heinous of creatures, a racialist.”

Verral’s argument seemed to be that “racialism,” the ethnic “purity” of the Anglo-Saxon race, and the need for “ethnic cleansing” of “impure” races can only be “discussed” if the Holocaust is denied. Otherwise, the universal ethic against racism will assert itself.

The Issues

Is the knowing denial of the Holocaust a violation of the false news law?

Is the false news law, itself, unconstitutional as a violation of the Charter of Rights and Freedoms?

Points to Consider

The false news law can be traced to a law enacted in 1275 by the British Parliament. In 1892, it was placed in the Canadian Criminal Code where it was treated as an offence. In 1887, it was dropped as an offence under British law.

In 1955, the law ceased to be an offence and instead was treated as a nuisance law (a lesser form of wrongdoing). In the century between 1892 and 1992, the law was used only three times.

The Holocaust is an issue of historical fact.

The Charter is part of the Constitution of Canada and, as such, it is the highest law of the land.

Section 2(b) of the Charter provides: “Everyone has the following fundamental freedoms: … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Section 1 of the Charter provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be justified in a free and democratic society.”

Discussion

Zundel was convicted twice. The first trial, from the laying of charges in 1983 to completion in 1985, brought a sentence of fifteen months imprisonment. The Ontario Court of Appeal set aside the conviction because of errors in the admission of certain evidence. In 1987 it ordered a new trial. The second trial resulted, as noted, in a conviction. This time the court imposed a sentence of nine months imprisonment.

In a constitutional challenge, the Ontario Court of Appeal unanimously upheld the conviction. The matter came before the Supreme Court of Canada — nine years after the complaint was first filed by the Crown against Zundel. In a 4–3 opinion, then Justice McLachlin, later to become chief justice, declared the false news law unconstitutional, with the result that Zundel’s conviction was set aside. (The Queen v. Zundel, [1992] 2 Supreme Court Reports 731)

The “False News” Law: Purpose?

Justice McLachlin emphasized that the complaint was not about spreading hate. That kind of charge was specifically dealt with under another provision of the Criminal Code, namely, section 319(2) — the anti-hate law. The complaint against Zundel, Justice McLachlin stated, “presents the Court with the question of whether a much broader and vague class of speech — false statements … likely to injure … public interest — violates the Charter of Rights and Freedoms.”

In no small measure, the extent to which both the Charter guarantee of freedom of expression and its potential limit applied to the false news law depended on the public policy and its importance embodied in that law. Put somewhat differently, if the false news law reflected an important public policy, then the Court would have to ask: Can that policy be allowed while at the same time protecting the Charter guarantee of freedom of expression? If, on the other hand, there was little if any public policy behind the false news law, then the Court could give fuller sweep to freedom of expression.

Justice McLachlin, speaking for the Court majority, found that the false news law lacked any purpose, and that its terms were too vague to enforce. She said that the law had been placed in the Criminal Code almost by what appeared to be an accident. Initially, when the law was enacted by the British Parliament in 1275, it was intended to curb political criticism in the form of writing and songs against the “Great Lords” of the day, though its terms applied to all. (Songsters — called minstrels — tended to be the media of the day for the peasants who made up the greater part of the population.) It also was used to limit blood feuds between members of the nobility, who might otherwise have taken revenge for what they deemed personal insults. But, even then, the law was seldom used.

Justice McLachlin said she could find no evidence as to why the false news law was kept in Canada after it had been ended in England. Aside from the present case against Zundel, the law had been used in Canada only three times between 1892 and 1992.

Perhaps, even more to the point, there were basic difficulties in enforcing the law. On the whole, unless parties otherwise agree, juries determine questions of fact. And, Justice McLachlin asked, how were juries to determine the kind of facts at issue in the Zundel case? These were among the questions juries were to consider:

How is the truth of a historic fact to be proved? How does one prove what actually occurred in the past?

The fact questioned must be false. In addition, however, the individual accused must subjectively believe the fact in question is false. How is that subjective belief to be proved?

What is the public interest that is likely to be injured as a result of the public airing of false facts?

The Charter Applied

Justice McLachlin, in a forty-three-page opinion, ruled that the false news law conflicted with the Charter guarantee of freedom of expression which, she said, “serves to protect the right of the minority to express its view, however unpopular it may be…. The view of the majority has no need of constitutional protection; it is tolerated in any event…. A law which forbids expression of a minority or false view on pain of criminal prosecution and imprisonment, on its face offends the purpose of the guarantee of free expression…. It is often the unpopular statement which is most in need of protection under the guarantee of free speech.”

The right of free expression, Justice McLachlin stated, will promote truth and political or social participation, furthering self-fulfillment in society. Toward that end, she continued, the Court should not be concerned with the content of a message.

Still, the question remained: Could the false news law be saved or permitted to stand, even though it violated the fundamental freedom of free expression under section 2(b) of the Charter? Section 1 of the Charter allows for this to happen if the violation reflects “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

It is here that Justice McLachlin again reviewed the purpose (or lack of one) of the false news law. Section 1 of the Charter placed the burden on the Crown to prove an overriding public objective to justify setting aside the Charter guarantee of freedom of expression. In this regard, Justice McLachlin made it clear that such an objective is to be found by what Parliament meant when it enacted the false news law — not by what judges might find in reading other purposes into the law at a later point in time. She wrote:

Can it be said in these circumstances that the Crown has discharged the burden upon it of establishing that the objective of the [false news law] is … substantial … [and] of sufficient importance to justify overriding the constitutional guarantee of expression? I think not.

It may be that section 181 [the false news law] is capable of serving legitimate purposes. But no objective of … substantial concern has been identified in support of it being kept in our Criminal Code. Other provisions, such as section 319(2) of the Criminal Code, deal with hate propaganda more fairly and more effectively. Still other provisions seem to deal adequately with matters of … state security.

The Dissent

Justices Peter Cory and Iacobucci, joined by Justice Charles Gonthier, issued an eighty-six-page dissent which centred on the facts at trial related to the distribution of hate propaganda by a group of neo-Nazis, sometimes disguised as “revisionist” historians. The dissent recognized that section 2(b) of the Charter had been violated — but only minimally. After all, the false news law condemned false assertions of fact, not opinion that the speaker knew to be false.

These are elements that the dissent would have required by way of proving a fact to be false:

The statement must be definite to convey meaning.

The statement must be one which can be proved objectively.

The statement must be in a setting where it is clear that facts are represented.

The dissent would have saved the false news law through section 1 of the Charter as a reasonable limit on freedom of expression imposed in a free and democratic society. The dissent stated:

The deceptive nature of the deliberate publication of false statements of fact may, in certain circumstances, be even more [wrongful] than the publication of hateful opinions which at least express the beliefs of the publisher.

Thus, section 181 [the false news law] fulfills an important role in a multicultural and democratic society. It emphasizes the repugnance of Canadian society for the wilful publication of known falsehoods that cause injury through their attacks upon groups identifiable under … the Charter and therefore on society as a whole.

Public or Private Prosecution?

Question: As noted, Citron brought a private prosecution against Zundel under the false news law. Why wasn’t a prosecution brought under the anti-hate law which, according to the majority opinion in the Zundel case, might have been more relevant? After all, the anti-hate law is an indictable offence punishable by up to two years imprisonment on conviction.

Answer: There is no right to a private prosecution under the anti-hate law. Only the Crown can lay charges. And, apparently, the attorney general at the time was not convinced that such an action would succeed.

Ernst Zundel: Background

Ernst Zundel, a German citizen, came to Canada in 1958 at the age of nineteen. He settled initially in Montreal. His status was that of landed immigrant. As the years went by, he twice sought citizenship, but his application was rejected each time.

The Influence of Canada’s “Fuhrer”

In Montreal, Zundel came under the influence of Adrien Arcand, self-styled “Fuhrer” of Canada, who in 1934 established the Parti national social chrétien that had as its emblem a swastika surrounded by maple leaves, with a Canadian beaver at the crown. The party was stridently anti-communist, separatist, and anti-Semitic. It sought the resettlement of Canadian Jews near Hudson Bay.

At the start of the Second World War, Arcand claimed that he and his then-new party, the National Unity Party, would take over Canada. Instead, he was interned by the federal government in New Brunswick for the duration of the war, and his party was declared illegal. He returned to Quebec after the war, in 1945, and continued his Nazi preaching. He died in 1967 (The Canadian Encyclopedia, Year 2000 Edition).

Arcand was reportedly “extraordinarily well-read, artistically gifted and highly knowledgeable in Western philosophy.” His “intellectual approach” appealed to Zundel. Further, Zundel became convinced that postwar Germany had been represented on the world stage by spineless persons bent on ongoing apology for their wartime sins — sins which he denied, including denial that the Holocaust had actually occurred.

Like Arcand, Zundel entered politics. He even ran for the Liberal Party leadership in 1968 against Pierre Trudeau. Zundel got publicity, but he was no challenge to Trudeau.

Zundel: Self-Styled “Guru of the Right”

Zundel moved to Toronto where he became a highly successful graphic artist. That skill, coupled with his insistence that the Holocaust had never happened, led him to establish a publishing organization, Samisdat Publishers.

With Zundel as its head, presenting himself as “the guru of the right … the teller of uncomfortable truths,” the publishing house — and his presence — became a world focal point for so-called historic revisionist propaganda. But, it wasn’t just printed matter that was the medium of Zundel’s message. As well, there was a slick website. His message went where it was intended: Europe and the United States.

The German government reacted. In Zundel’s absence (in absentia), a prosecution was carried out and Zundel was convicted of the crime of Holocaust denial.

Zundel was quoted as saying: “If I may quote the much-maligned Adolf Hitler: ‘If you discover a true personality, treat it with kid gloves because nature makes so few personalities.’ With all modesty, I would have to say that, like Charles de Gaulle [World War II French leader and later President of France], l’état, c’est moi” (Globe and Mail, March 2, 2005).

In 1985 (spurred on by Sabina Citron, the individual who launched a private prosecution under the false news law, later joined by the Crown), Zundel was tried and convicted twice for spreading false news likely to cause social unrest, more particularly, Holocaust denial. (See “You Be the Judge: The Case of ‘False News,’” above.) On each of the more than forty days of trial, Zundel arrived at his hearing with a uniformed group of young followers in hard hats labelled: Freedom of speech.

After his conviction, there were deportation hearings initiated by the Canadian government. Zundel arrived at these hearings carrying a large crucifix. He acknowledged later that it was a stunt for publicity — a stunt that succeeded. He intended to project the profile of a long-suffering martyr, and to have news of his status carried worldwide.

After the Supreme Court reversed the false news conviction in 1992, Zundel was spared deportation. In 2000 he moved to Pigeon Forge, Tennessee, apparently hoping to obtain U.S. citizenship. There, he and his wife operated a website that spread the same message he had delivered in Canada.

U.S. authorities acted to deport him for immigration violations. He was deported to Canada in May 2003. There, Canadian officials, using the legislative power of the security certificate established by Parliament in response to the bombings in the U.S. on September 11, 2001, arrested Zundel.

The Canadian claim was that Zundel was a threat to national security. Canadian officials sought to deport him to Germany. Zundel, assisted by counsel, resisted the deportation effort. Pending the hearings (which took place over forty-three days), and with appeals in the interim, Zundel was held in solitary confinement. The end result was an order, not then appealed, that resulted in his deportation on March 2, 2005, to Germany, where he was arrested, denied bail, and held on charges of Holocaust denial.

Hate and National Security: The Zundel Story Continued

Ernst Zundel was deported from the United States to Canada. This action was taken because Zundel, not a U.S. citizen, was found to have violated U.S. immigration laws. His status in Canada was that of a landed or permanent resident. But, he was not a Canadian citizen.

The National Security Certificate: Procedure

On April 30, 2003, two months after Zundel’s return to Canada, two federal ministers (the minister of citizenship and immigration and the solicitor general of Canada) signed a national security certificate that denied him entry to Canada on grounds of national security. Their legal authority came from the Immigration and Refugee Protection Act, Statutes of Canada 2001, chapter 27 (IRPA).

Zundel was placed in a detention centre in Toronto pending hearings and decision under the IRPA. However, while we will describe those hearings and the final decision, this point is noted: Zundel could have ended his detention at any time by agreeing to return to Germany where he was a citizen. He refused to do this. He wanted to remain in Canada, and thus was compelled to challenge the security certificate under a law enacted soon after the September 11, 2001, terrorist bombings in the U.S.

The IRPA sets out the grounds for a certificate to issue:

§34(1) A permanent resident or a foreign national is inadmissible on security grounds for

engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

engaging in or instigating the subversion by force of any government;

engaging in terrorism;

being a danger to the security of Canada;

engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

being a member of an organization that there are reasonable grounds to believe [is engaging in terrorism].

On the day the certificate was issued and Zundel was arrested, Justice Pierre Blais of the Federal Court of Canada was assigned to review and hear matters relating to the certificate. On May 1, the next day, he held a teleconference hearing in private (that is, with Crown counsel but without Zundel or his counsel) to determine whether there was a reasonable basis for the certificate to be issued and for Zundel to be detained. (The IRPA requires that such a hearing be held within seven days of it being issued and that the hearing be held in private. Further, the law requires regular review by a judge until a final decision is made.)

Justice Blais determined that there was a reasonable basis for the issuance of the certificate, and he ordered a hearing to determine whether Zundel should be deported. That hearing was one in which Zundel and his counsel had the right to appear, present evidence, and be given a summary of evidence taken in secret — up to the point that the judge believed disclosure of information or the identity of witnesses would not endanger national security.

Zundel was jailed (even placed in solitary confinement) for almost two years, then forcibly removed from Canada. The hearings that resulted were not conducted as regular criminal proceedings in two ways:

1. As noted, where national security was found by the judge to be involved (a decision made, as described, in private), the evidence and the identity of the witnesses were kept confidential. Zundel and his counsel were entitled to a summary of evidence within the bounds of national security, again as determined by the judge. But they were entitled to nothing more. The general rule in criminal proceedings, and reflected in the Charter, is that the accused has the right to know, confront, and cross-examine his/her accusers. But, this is a general rule and the same Charter allows for exception where that limitation is described by law and is seen as necessary in a free and democratic society.

2. The criminal law ordinarily requires that the Crown prove its case beyond a reasonable doubt. A national security certificate will be sustained if there are reasonable grounds for doing so. What does this mean? In effect, this means that the ministers who signed the certificate had a good faith belief that the charges set out were true, based on believable evidence. Justice Blais stated: “To demonstrate that the certificate is reasonable, the Ministers must only demonstrate that there is a serious possibility, based on credible evidence, that Mr. Zundel is inadmissible on one of the grounds of inadmissibility provided by section 34 of the IRPA [quoted above]. In fact, the Ministers do not have to conclusively demonstrate any of the allegations of inadmissibility.”

The national security certificate involving Zundel stated that he was detained, and it sought his deportation on the ground that he was a threat to the security of Canada.

Findings of the Federal Court

Counsel for Zundel argued that his client had committed no acts of violence. Nor had he been convicted of any crimes under valid laws. Justice Blais said that the points were not relevant to the validity of the certificate. He wrote:

I would point out that there is no requirement that an individual who is inadmissible to Canada on security grounds be personally involved in acts of violence. Such an interpretation is short-sighted and not in keeping with the ruling of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 Supreme Court of Canada Reports 3, that danger to the security be given a “fair, large and liberal interpretation.” There is therefore no requirement that criminality be determined in order for a permanent resident or a foreign national to be found to be a danger to the security of Canada…. Rather, … the threat that a person may constitute a danger to the security of Canada must be substantial and based on an objectively reasonable suspicion.

The Detailed Evidence

The findings of Justice Blais cover more than sixty-five pages. It is enough to say here that he emphasized that, on more than one occasion, the court noted that the hearing was not a criminal proceeding. Under the law, the task of Justice Blais was to determine whether there was a reasonable basis for supporting the national security certificate. His task was not to determine whether the high standard of proof in a criminal case had been sustained.

Justice Blais said that there was more than enough evidence to support the security certificate. Key to his findings was the connection between Zundel and White Supremacists who, among other things, were bent on destabilizing the German government. We quote here a portion of Justice Blais’s findings that spoke of the importance of Zundel in the White Supremacist movement and of Zundel’s associations with those who support that movement:

[According to] the Security Intelligence Report of which Mr. Zundel was provided a summary, White Supremacists are defined as racists, neo-Nazis and anti-Semites who use violence to achieve their political objectives. Leading White Supremacists may inspire others to use or threaten use of violence.

Mr. Zundel is viewed by White Supremacists as a leader of international significance and was viewed as the patriarch of the Movement in Canada for decades. Mr. Zundel is one of the world’s most prominent distributors of revisionist neo-Nazi propaganda through the use of facsimiles, courier, telephone, mail, media, shortwave radio transmissions, satellite videos and the Internet, through his web site the Zundelsite, which is a platform for financing and contains White Supremacist documents as well as hyperlinks to other White Supremacist web sites. The Security Intelligence Report concludes that based on the evidence that has been provided, Mr. Zundel is playing a critical role in the Movement, both in Canada and internationally.

Documents issued by Mr. Zundel over the years show his intention to destabilize the legal and legitimate democratic government of Germany. The evidence also demonstrates a clear determination to disseminate copious amounts of documentation and information from Canada to Germany, using Canadian soil to advance his goal of undermining the German government.

Furthermore, the Ministers have provided public and in camera [secret] evidence that Mr. Zundel has extensive involvement with contacts within the violent, racist, right wing movement. These contacts encompass individuals and organizations in Canada and abroad.

Mr. Zundel has always supported the ideology of the White Supremacist Movement, one which is based on the fundamental belief that the white race is an endangered species in need of protection as a result of non-whites and Jews seeking to attack the foundation of western civilization. Blacks in particular are seen as intellectually inferior, while Jews are viewed as conspiring to gain control of the world through manipulation of financial markets, the spread of communism, pornography and general moral degeneracy. The government is viewed with suspicion as it is seen to be controlled by a Jewish conspiracy referred to as Zionist Occupation Government (ZOG). These fundamental beliefs lead to anti-Semitic, racist, anti-immigration, anti-democratic, anti-human rights and anti-homosexual attitudes.

The Nazi Party under Adolf Hitler in Germany in the 1930s and 1940s is notoriously well known; what is less known is the Canadian version which was developed over the 1940s and the 1950s under Adrien Arcand, who promoted Hitler as a saviour of Christianity and formed the Parti national social chrétien in the 1930s. That party then merged with the Canadian Nationalist Party from the West to form the National Unity Party. Later, in the 1960s, the Canadian Nazi Party became the National Socialist Party and Mr. Zundel explained how he was influenced by Mr. Arcand himself whom he met when he arrived in Canada in the 1950s. At the conclusion of World War II, the enthusiasm of those Nazi parties around the world was greatly reduced; nevertheless, there still remained some desire to support this neo-Nazi approach. Mr. Zundel is among the few people that worked hard to maintain that support and who went to great lengths to try and establish some credibility to the neo-Nazi movement. He also tried by all means possible to develop and maintain a global network of all groups that have an interest in the same right wing extremist neo-Nazi mind-set.

The Ministers filed as evidence a document by the Security Intelligence Review Committee (SIRC), entitled The Heritage Front Affair Report. The Ministers zeroed in on a particular part of this report and I quote: “Finally, we would like to put on the record our unshakeable conviction that the Government of Canada, through all means at its disposal, should continue to ensure that it is always aware of what is going on within extreme right wing racist and neo-Nazi groups. Canadians should never again repeat the mistakes of the past by underestimating the potential for harm embodied in hate-driven organizations.” [Section 13.12 of the SIRC document.]

The analysis of the public documents provided by the Ministers, and the evidence that was heard over the 43 days of public hearings in this case, depict a man who publicly has always tried to demonstrate his opposition to violence.

Nevertheless, for more than 20 years, Mr. Zundel continuously maintained close relationships with individuals around the world who are clearly identified as members of the White Supremacist Movement. Mr. Zundel admitted in his own testimony that through different means of communication, he is in touch with people in 42 countries.

Mr. Zundel maintained a close association with Wolfgang Droege and even admitted that he believed Mr. Droege was involved in terrorist activities in the United States, including attempting to invade the small Republic of Dominica to establish a White Supremacist government. Mr. Zundel’s house on Carlton Street in Toronto was akin to a revolving door for Mr. Droege, as well as every other member of the White Supremacist Movement in Canada or from abroad. These members were always welcome at his house, which had transformed from a residence, into a command centre for people and organizations worldwide involved in the White Supremacist Movement.

Furthermore, Wolfgang Droege and Marc Lemire, two successive presidents of the Heritage Front, spent a lot of time in Mr. Zundel’s house. Mr. Lemire, the last known president of the Heritage Front, was working for Mr. Zundel part-time, and then full-time for many years until Mr. Zundel left for the United States.

Mr. Zundel also maintained a close association with Terry Long and the Aryan Nations. Mr. Long was a very zealous activist in Canada, and was depicted as one of the most extreme of the leaders of the Aryan Nations, an organization founded by Richard Butler in 1974 that has among its goals, the elimination of Jews and all minorities, as well as the creation of a White homeland in the North Western United States.

Claims of Non-Violence and Freedom of Expression

Justice Blais addressed Zundel’s claims of non-violence and freedom of expression. He wrote:

It is troubling to hear Mr. Zundel proclaim that he is defending freedom of expression and advocating the use of non-violence while, at the same time, spending most of his time working in close quarters with the most extreme individuals and organizations in the White Supremacist Movement.

If, as Mr. Zundel claims, he is not on side with extremists, is not on side with people claiming that the Jews should be eliminated, and is not on side with Canadian members of the Heritage Front that wanted to create a list of members of the Jewish Movement for future retaliation, then how can he agree to participate in a meeting of the Heritage Front as a guest speaker, surrounded and supported by members of extremist White Supremacist groups in Canada?

If, as Mr. Zundel said, the Heritage Front, a group described as the most powerful racist gang to hit Canada since the real Nazis back in the Dirty Thirties, was not a good idea, then why would he hire the president of that organization, Mr. Lemire, as a part-time and then full-time employee in his own personal residence?

If, as Mr. Zundel stated, Mr. Droege is a terrorist and was totally ill-advised with everything he has done, be it in the United States or as leader of the Heritage Front, then how can he allow him to enter his house on a daily basis?

If, as Mr. Zundel claims, it is not a good idea to use web sites to disseminate messages of racial hatred and incite violence in the pursuit of White Supremacist objectives and that it is not a good idea to post on the Internet a practical guide to Aryan revolution which included chapters on assassinations, terror bombings, sabotage and racial wars, then why would he qualify Bernard Klatt, the man responsible for posting this guide, as a gentle person, and maintain contact with Mr. Klatt over the years?

If, as Mr. Zundel believes, Tom Metzger is a violent person involved in criminal activities and in promoting a campaign of hatred which led to the beating death of an Ethiopian immigrant by two skinheads in the United States, for which Mr. Metzger had to subsequently pay a $12.5 million judgment after being found responsible by a civil court of that beating, and if he disagrees with the kind of racist cartoons made by and promoted by Mr. Metzger, and if he thinks that the White Aryan Resistance Hate Page web site, which depicted grotesque and disgusting pictures of Negro and Jewish cartoons is not a good idea, then why does he cooperate with Mr. Metzger, Mr. Butler and the Aryan Nations?

If, as Mr. Zundel was well aware, Bela Ewald Althans was convicted, among other things, of incitement to hatred under German law, and imprisoned after being found guilty of denying the Holocaust and insulting the state and the memory of the dead, and if Mr. Zundel knew that the presiding judge has called Mr. Althans “a moral arsonist” who is not a violent man but is still just as dangerous to the community, then why did he keep Mr. Althans as his personal representative in Europe and in Canada to disseminate his publications and organize tours for him in Europe?

If, as Mr. Zundel acknowledged, Dennis Mahon and the Oklahoma Excalibur were involved in extremist comments, even advocating revolution and a violent overthrow of the Canadian government in a meeting in Canada in 1992, then why did he agree to assist Mr. Mahon in designing a cover page for his publication?

These serious contradictions required explanation; if Mr. Zundel did not subscribe to the views expressed by all those people and organizations, then he should have clearly expressed, both publicly and privately, his total opposition to the kind of material, propaganda, violence and hatred promoted by those individuals and associations. I simply cannot accept the proposition that Mr. Zundel is a pacifist while, at the same time, he continues to maintain a close association and to support the above-mentioned extremists.

Mr. Zundel has himself admitted that he has a large ego. He tried to diminish the importance of his admission that he was somehow a “guru of the right.” Nevertheless, he is proud of the influence he has on all the people and organizations that are mentioned in the Summary. He always tries to distance himself from the violence and extremist views proliferated by those people and organizations, but he does not want to sever these ties; he wants to maintain his influence on them. He did not want to be seen as a leader of the Heritage Front, he even mentioned that he was not a member of that organization. But the leaders of this organization were spending most of their time in his house to hear his suggestions and to follow his advice. I remember how proud he was when he mentioned in cross-examination that his Zundelsite received hits from 400,000 people a month, and that after his arrest, the number grew to 1.2 million people accessing his web site every month; his tone and body language were more telling than anything of the proudness he had, realizing that after decades, more than a million people every month were in touch with his writings.

Faced with the evidence that was provided by the Ministers, I have no hesitation in concluding that pursuant to section 33 and to paragraph 34(1)(d) of the IRPA, there are reasonable grounds to believe that Mr. Zundel is inadmissible on security grounds for being a danger to the security of Canada.

Mr. Zundel has associated with, supported and directed members of the Movement who in one fashion or another have sought to propagate violent messages of hate and have advocated the destruction of governments and multicultural societies. Mr. Zundel’s activities are not only a threat to Canada’s national security but also a threat to the international community of nations. Mr. Zundel can channel the energy of members of the White Supremacist Movement from around the world, providing funding to them, bringing them together and providing them advice and direction.

It would be illusory to believe that the White Supremacist Movement is receding. While it is true that the detention of Mr. Zundel may have taken the wind out of the sails of his followers, the White Supremacist network is still very much alive and active. The use of the Internet has created new methods of communication which have replaced traditional ones. No longer must halls or pubs be rented in order to have meetings; rather, communication can now take place easily and anonymously between adherents of the White Supremacist Movement, as well as anyone else curious enough to visit web sites or log onto chat rooms dedicated to keeping this network alive.

The physical presence of Mr. Zundel is not necessary to maintain the sustenance [support] of this network. Nonetheless, Mr. Zundel’s freedom, following two years of incarceration, would no doubt galvanize the White Supremacist Movement. Mr. Zundel has the funding, the support, an established infrastructure, a means of communication to the masses via his Zundelsite as well as numerous individuals who are prepared to do his bidding. Mr. Zundel is capable of bringing all this back together and once again spurring the White Supremacist Movement.

In this case, I have no doubt regarding the fairness and legality of the process and I have no doubt that the evidence in support of the certificate conclusively established that Mr. Zundel represents a danger for the security of Canada and that the certificate signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada is reasonable.

No Appeal

Within hours of Justice Blais’s decision, the federal government moved to deport Zundel. He received a letter which stated in part: “The purpose of this letter is to inform you that your removal to Germany is imminent…. Please note that you are entitled to a total of two suitcases with a maximum weight of 32 kilograms each.”

Zundel determined not to seek any appeal from the decision of Justice Blais. His claim that if returned to Germany he might well be subject to torture by German authorities had been reviewed and rejected by Justice Blais (Globe and Mail, February 26, 2005).

Challenge Question

A Court’s Power — The Ministers’ Choice

Q: Suppose that a court orders the disclosure of evidence coming from a national security certificate which the signing ministers still believe should be kept secret. And, suppose that reviewing courts support the trial court’s order. What, if any, choice do the ministers have regarding such disclosure?

Justice Blais took up this question. He said that the ministers always have the right to withdraw the evidence initially presented in private. This means that the court cannot look to such evidence in coming to its decision. Justice Blais also noted that such a decision might affect other parts of the case necessary for a final decision. He wrote:

The decision [for production of information relating to the national security certificate] is made by the judge and not by the Ministers. If the judge arrives at the conclusion that part of the evidence should be disclosed and the Ministers still believe that its disclosure would [hurt] national security, the Ministers may withdraw the evidence that is proposed. Sometimes, this is a difficult task because the disclosure of one part of the evidence could divulge information that would make possible the identification of the sources which not only would be injurious to national security but also to the security of persons. This problem is described as the mosaic effect….

This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require [it] to be protected if the mere divulging of the fact that CSIS [Canadian Security Intelligence Service] is in possession of it would alert the targeted organization to the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.

Zundel Deported and Charged in Germany: Holocaust Denial, Itself, A Crime

On March 1, 2005, before dawn, Ernst Zundel was placed on a flight from Toronto to Germany. Canadian authorities had deported him. At an earlier time, faced with the possibility of deportation to Germany, Zundel was quoted as saying: “[Being deported to Germany] would be like being sentenced to paradise…. I can’t be punished by being sent to a place where there are comforts, money and supporters.”

However, on arrival in Germany, Zundel was charged with the offence of denial of the Holocaust — a specific crime in Germany. He was taken before a judge, informed of his rights, and jailed pending trial, bail having been denied.

The Bundesgerichtshof, Germany’s highest federal court, set out the reasoning for making Holocaust denial, itself, a crime — with no exception for claimed freedom of opinion:

The historical fact that human beings were separated in accordance with the descent criteria of the so-called Nuremberg laws and were robbed of their individuality with the objective of their extermination, gives to the Jews living in the Federal Republic [of Germany] a special personal relationship to their fellow citizens; in this relationship, the past is still present today.

It is part of their personal self-image that they are seen as attached to a group of persons marked out by their fate, against which group there exists a special moral responsibility on the part of everyone else and which is a part of their dignity. Respect for this personal self-image is for each of them really one of the guarantees against a repetition of such discrimination and a basic condition for their life in the Federal Republic. Whoever seeks to deny those events denies to each of them individually this personal worth to which they have a claim. For those affected, this means the continuation of discrimination against the group of human beings to which he belongs, and with it against his own person.

German Law Applied

The Bundesgerichtshof has given the law against Holocaust denial a wide application, one that caught Zundel. In December 2000, it ruled that the law can be imposed against foreigners who upload content on the Internet that is illegal in Germany. This means, for example, that content from websites outside Germany are subject to legal challenge.

That ruling emanates from a case involving Frederick Toben, a Holocaust revisionist (like Zundel) who was arrested for distributing leaflets in Germany that claimed that the Holocaust had never happened. German courts sentenced Toben to ten months in prison for distributing the leaflets, and for making available on his website Holocaust denial material.

Toben appealed the latter element of his conviction, stating that his website is based in Australia and therefore is not subject to German law. Though German-born, Toben has lived in Australia for most of his life and is a citizen of that country. The Bundesgerichtshof has upheld the conviction.

The German decision bears some similarity to a French case. Recently, France’s high court issued several rulings barring Yahoo, the global Internet portal, from auctioning Nazi memorabilia in France.

Reason for Difference: A German Police Response

Hans-Gertz Lange, a spokesperson for the Verfassungsschutz (the German counterpart to CSIS and the RCMP) said: “The best chance to fight against right-wing material on the Internet is on an international level. But when I think of the U.S. or Canada, it’s extremely unlikely that they’ll change their laws in accordance with ours. Their concept of freedom of speech is tied up with their history; our laws against incitement to racial hatred are tied up in ours.”

The Sentencing of Zundel

On February 15, 2007, the German court imposed on Ernst Zundel the maximum sentence allowed under German law: five years imprisonment with a release date of 2010. The German court ruled that the two years Zundel spent imprisoned in Canada under a security certificate could not be taken from the five-year sentence. However, the two years he had been confined in Germany were taken into account. The Zundel conviction and sentence was upheld on appeal.

The trial itself had lasted for the better part of two years. This was due, in part, to Zundel’s counsel and their trial tactics. He retained counsel initially not authorized to practise law in Germany, and he later included a counsel who shouted racial anti-Semitic slurs in the court and was carried from the room (and was later subject to discipline). In final arguments, Zundel’s counsel read passages from Adolf Hitler’s Mein Kampf — the then young German dictator’s views on racial purity.

Another Point of View on the Deportation of Zundel

The following is an extract from an editorial that appeared in the Globe and Mail on February 26, 2005. It argues that the rule of law was diminished and that respect for civil liberties was sacrificed through the use of the security certificate to hold, to take secret testimony from, and then to deport Zundel:

The mightiest weapon of the state was used against [Zundel], and denied him bail, because he associates with unsavoury people, holds hateful views, and is a hero to racists around the world. To realize how foreign that is to the purpose for which the certificate was created, consider the grounds available in the Immigration and Refugee Protection Act for justifying the certificate’s use: that the person has engaged in terrorism or subversion; belongs to a group that one might reasonably believe has engaged or will engage in acts of violence that might endanger the lives or safety of persons in Canada. Mr. Zundel could not be held under any of those grounds. Instead, Judge Blais upheld his certificate on the ground that “he is a danger to the security of Canada.”

The case is unpersuasive. Mr. Zundel designed the cover of a magazine for a reprehensible white-supremacist publication in Oklahoma “to improve the quality of the media presentation. Nevertheless, he did nothing to improve or to change the quality of the content.” Mr. Zundel had extremists in his house, and employed the last-known president of the racist Heritage Front. He “maintained a close association” with; he “stayed in touch” with; he maintained “close contacts” with. Guilt by association? Judge Blais himself acknowledges the weakness that runs through his argument. “Mr. Zundel, even if he is not supportive of their more radical and demonstrative ideas, recognizes the efforts of organizations such as the Aryan Nations and the White Aryan Resistance” [italics: Globe and Mail].

The closest thing to a smoking gun is that Ernest Zundel’s activities are illegal in Germany and Austria, which make it a jailable offence to deny the Holocaust. That might have been reason for Germany to try to extradite Mr. Zundel, who is a German citizen; it did not justify the use of a Canadian security certificate. However hateful Ernst Zundel may be — and he is hateful, no question — abusing the authority to issue security certificates does more than hurt Mr. Zundel. It diminishes the rule of law, and sacrifices respect for civil liberties on the altar of expedience (Globe and Mail, February 26, 2005).

Still another Point Of View

This letter to the editor appeared in the Globe and Mail on March 10, 2005. It was written by Joel Richler, Chair, Canadian Jewish Congress, Ontario Region, Toronto.

Imagine you learn that an individual living on Canadian soil has spent the better part of twenty years creating linkages between himself and white supremacists in Canada and internationally.

Imagine that this individual takes egotistical pride in styling himself as a “guru of the right.”

Imagine that this individual describes his own role in the right-wing movement as being where he “sows the seeds and other people then build on those ideas.”

Imagine that the movement to which this individual claims the status of “guru” is one that holds the fundamental belief that the white race is an endangered species in need of protection as a result of non-whites and Jews attacking the foundation of Western civilization.

Imagine that this individual styles himself as a pacifist — a statement that a Federal Court judge viewed as hypocritical because the individual maintained close association over the years with groups and individuals who hold violent views.

Imagine that this individual is able to argue his case before the Federal Court for 43 days over a period of almost two years, and still claims he has been denied justice.

Imagine that this individual, after due process and in accordance with the laws of Canada, is removed from the country to stand trial on criminal charges in another democratic country.

Can you imagine yourself having any doubts regarding the rightful deportation of Ernst Zundel?

Private School Prank Suppressed

Two elite Toronto private schools were in an uproar over an anti-Semitic website that lasted only six days, but resulted in the expulsion of three boys and the suspension of four more.

On April 22, 2005, a grade ten student at Royal St. George’s College went home and set up a Microsoft chat board. The site — accessible only to his fellow classmates at Royal St. George’s (a boys’ school) and grade ten students at Branksome Hall (a girls’ school), as well as a third private school — invited subscriptions. Within days, nearly one hundred signed up.

The board quickly took on a life of its own, and another Royal St. George’s student started cyber rooms on the site, such as “Gas Chamber” and “The Reichstag.” Several classmates posted photographs of Nazi rallies and Jews being tortured in a concentration camp.

Four girls from Branksome — using the pseudonym “Rod” — sent a message to the chat board asking that the material be removed. The response? A Royal St. George’s student attacked the critics, using homophobic, anti-Semitic language that witnesses termed “horrifying.” The girls informed their principal and their parents. Branksome’s principal contacted the headmaster of Royal St. George’s at noon on April 27. By 4:00 p.m., the chat board was down.(Globe and Mail, May 3, 2005; Toronto Star, May 3, 2005; Toronto Star, May, 2005; Globe and Mail, May 7, 2005).

The Toronto Star Responds

On May 4, 2005, the following editorial titled “Standing Up to Hatred” appeared in the Toronto Star:

Ignorance, intolerance and hate are not limited to any social or economic group. Sadly, they are traits seen in both rich and poor, young and old, uneducated and highly schooled.

That became clear when it was revealed that a student at Royal St. George’s College, a private boys’ school in Toronto, recently posted Nazi-themed images on an Internet chat room set up by a classmate.

When several students at Branksome Hall, a nearby private girls’ school, asked that the content be removed, two other Royal St. George’s students responded with a stream of vicious anti-Semitic invective that a Branksome Hall official called “graphic, vile and truly shocking.”

Of course, some might argue, kids will be kids. That sometimes means acting impulsively and foolishly.

But that does not mean the students who posted the images and messages should be let off lightly for their abhorrent expressions of hate.

While the students, one of whom is Jewish, apparently did not commit the odious acts on school property, the schools have dealt with the incident swiftly and appropriately.

Royal St. George’s has expelled the boy who posted the photos and the two boys who responded to the complaints. Both schools have also held assemblies to educate students about anti-Semitism. That sends the message to all students at these schools that anti-Semitism will not be tolerated. It is the right message.

The incident also reminds us that Canadians must remain vigilant against expressions of hate.

B’nai Brith Canada reports anti-Semitism is on the rise here. The group recorded 857 incidents last year, a 47% jump over 2003 and the highest number in the 22 years since it started keeping track.

This disturbing figure shows intolerance and hate are alive and well.

What can be done?

Tolerance must be nurtured both at home and at school. Children must learn the troubling histories of the Holocaust, the slave trade, the internment of Japanese Canadians during World War II and other human rights atrocities.

Most important, we all must be ready to stand up to bigotry and racism, wherever it confronts us (Toronto Star, May 4, 2005).

Differences: U.S.A./Canada

The Constitution of the United States with its Bill of Rights, including the right of free speech, often is compared with the Canadian Charter of Rights and Freedoms. There are, however, important differences, not only in the constitutional texts but also in how those texts are applied.

For example, the U.S. free speech right, reading the text alone, contains no qualifier such as that found in section 1 of the Charter. Yet, the interpretation of that text is another matter. Consider the U.S. Supreme Court decision in R.A.V. v. City of St. Paul, Minnesota, 60 United States Law Week 4667 (June 22, 1992). There, all nine justices of the U.S. Supreme Court struck a city ordinance (law) directed at expressions of hate against others because, for example, of their race.

The expression was the burning of a cross on the front lawn of the newly-purchased residential home of Russ and Laura Jones and their five children — an African-American family. The cross was ignited around midnight on a summer night. Mrs. Jones later said: “If you are black and you see a cross burning, you know it’s a threat, and you imagine all the church bombings and lynchings that have gone on before, not so long ago…. A burning cross is a way of saying: We’re going to get you.”

Investigators identified those responsible as six young men: a seventeen-year-old high school dropout; the eighteen-year-old son of a neighbour of the Jones family; and four juveniles. Before the burning, investigators said the six had been drinking and talking about causing some “skinhead trouble” and “burning some niggers.”

The Law and Decision

One of those charged challenged the constitutionality of the city ordinance used to convict, which stated: “Whoever places on public or private property a symbol, object, appellation [name], characterization or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, commits disorderly conduct and shall be guilty of a misdemeanor.”

The case eventually came before the Supreme Court of the United States. All nine justices agreed that the city ordinance was unconstitutional, and it was declared invalid. However, the justices wrote four different opinions. We will focus of the opinion of Justice Antonin Scalia who spoke for himself and four other justices, thus constituting the majority.

The city ordinance was declared unconstitutional for what it didn’t include. Justice Scalia stated:

Those who wish to use fighting words in connection with other ideas — to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality — are not covered. The First Amendment [of the Constitution, dealing with freedom of speech] does not permit the City of St. Paul to impose special prohibition on those speakers who express views on disfavored subjects…. The point of the First Amendment is that majority preferences must be expressed in some manner other than silencing speech on the basis of content….

The question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul’s compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have achieved precisely the same effect….

In fact, the only interest distinctively served by the content limitation is that of displaying the city council’s special hostility toward the particular biases thus singled out. That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility — but not through the means of imposing unique limitations upon speakers who … disagree.

References and Further Reading

Alphonso, Caroline, and Joe Friesen. “Jewish Pupil Among Three Expelled.” Globe and Mail, May 3, 2005.

Black, Debra. “Racist Incident Offers Lessons.” Toronto Star, May 3, 2005.

Fraser, Angus. 1992. The Gypsies. Cambridge, MA: Harvard University Press.

Globe and Mail. “The Zundel Certificate.” February 26, 2005.

Hancock, Ian. 1987. The Pariah Syndrome: An Account of Gypsy Slavery and Persecution. Ann Arbor, MI: University of Michigan Press.

Makin, Kirk. “Supreme Court Orders New Trial for Skinheads.” Globe and Mail, February 24, 2005.

_____. “Court Finds Zundel Can Be Deported.” Globe and Mail, February 25, 2005.

_____. “Zundel Won’t Fight Deportation Order.” Globe and Mail, February 26, 2005.

_____. “Holocaust Denier is Returned.” Globe and Mail, March 2, 2005.

Moore, Oliver. “Anti-Semitic Incidents Soar.” Globe and Mail, March 16, 2005.

Small, Peter. “Six Protestors Face New Trial Over Hatred Charges.” Toronto Star, February 25, 2005.

Teotonio, Isabel. 2005. “Anti-Semitism on Website has Elite Schools in Uproar.” Toronto Star, May 2.

Toronto Star. “Standing Up to Hatred.” May 4, 2005.

Wong, Jan. “15 Minutes of Shame.” Globe and Mail, May 7, 2005.

Chapter 3

Teaching Hatred: Dangerous Lessons

We begin this chapter with a single case, Ross v. New Brunswick School District No 15, [1996] 1 Supreme Court of Canada Reports 825 (the Ross case). The central issues go to tensions between freedom of expression, mixed in part with claims of religious freedom and the statutory duty imposed on public school boards to deliver non-discriminatory education. (More will be said of religious freedom in Chapter 4.)

For twenty years, Malcolm Ross had been a public school teacher in New Brunswick. In the community, he was known to have anti-Semitic beliefs that reflected his strongly held religious ideology. In 1977 he had publicly stated: “Christian civilization is being undermined and destroyed by an international Jewish conspiracy.” Over the years he had publicly repeated his anti-Jewish beliefs in published pamphlets, letters to the editor, and public television appearances. However, he did not repeat these beliefs in his classrooms.

In 1988 a complaint was filed with the New Brunswick Human Rights Commission, which had broad statutory authority to prevent and remedy discrimination in providing public services (such as education) for a range of reasons including “race, colour, religion, national origin [and] ancestry.“ The complaint cited what it claimed were anti-Semitic acts on the part of Ross dating more than a decade earlier.

The complaint stated that the school board, Ross’s employer, had a statutory responsibility to provide for the delivery of non-discriminatory educational services. This, said the complaint, was not done. Ross’s out-of-school statements, in effect, “poisoned” the educational environment.

The New Brunswick Human Rights Act gave broad authority to tribunals it established to hear complaints (called boards of inquiry) to make findings of fact and develop appropriate remedies should human rights violations be found. The legislature gave broad powers to such tribunals. Their findings of facts were to be accepted so long as, on the record, there was a reasonable basis for doing so. Put another way, a reviewing court was not to substitute its findings merely because it might have come to a different factual conclusion.

What should be the remedy on a finding of violation of a human rights code? Was a court to yield to the judgment of an administrative board? What is a court’s role, and especially that of the Supreme Court of Canada, when the effect of an administrative decision is to stifle freedom of expression guaranteed by section 2(b) of the Charter?

Among the questions raised in this chapter are:

Are there limits to the personal opinions teachers can express in a classroom?

Outside the classroom, does a teacher have the right of freedom of expression?

What role do human rights laws have in filtering what teachers can say?

Findings and Order in the Ross Case

Eight years after the New Brunswick Board of Inquiry had been established and its findings and order entered, the matter came before the Supreme Court of Canada for review. The decision of the Supreme Court was unanimous. It was handed down by Justice La Forest, a native of New Brunswick. This is the Court’s view of the facts in the Ross case, as stated by Justice La Forest:

The factual context within which these issues arise is as follows. On April 21, 1988, [David] Attis [a parent of children who were students at the school where Ross taught] filed a complaint with the Human Rights Commission of New Brunswick, alleging that the Board of School Trustees, District No. 15, violated §5 of the Human Rights Act by discriminating against him and his children in the provision of accommodation, services or facilities on the basis of religion and ancestry. [Attis] alleged that the School Board, by failing to take appropriate action against the respondent Ross, a teacher working for the School Board who publicly made racist, discriminatory and bigoted statements, condoned [justified] his anti-Jewish views and breached §5 of the Act by discriminating against Jewish and other minority students within the educational system served by the School Board.

On September 1, 1988, a human rights board of inquiry was established to investigate the complaint. In the complaint, Attis, a Moncton resident, described himself as a Jew. He alleged that the discriminatory conduct by the School Board occurred from March 29, 1977 to April 21, 1988, and arose out of the actions of Ross, a teacher at Magnetic Hill School. The latter made racist and discriminatory statements in published writings and in appearances on public television. In his published writings, which consist of four books or pamphlets published from 1978 to 1989, and three letters to New Brunswick newspapers, Ross ... argued that Christian civilization was being undermined and destroyed by an international Jewish conspiracy. [The hearings before the Board of Inquiry lasted for twenty-one days.]

At the time of the hearing before the Board of Inquiry, Ross did not have a homeroom class, but was a modified resource teacher. He had been employed at the school since September 1976, and before that as a teacher at the Birchmount School. Concerns about the respondent’s writings had been expressed publicly since 1978, when the Chairman of the Human Rights Commission had sent a letter to the School Board requesting that his classroom performance be supervised. By 1987, the School Board’s response to the controversy had become a public issue and the Department of Education of New Brunswick became involved [emphasis added].

In 1988 the School Board instituted disciplinary action against Ross. On March 16, 1988, he was reprimanded and warned that continued public discussion of his views could lead to further disciplinary action, including dismissal. He was also informed that the warning was applicable to his out-of-school activities. The reprimand remained in force until September 20, 1989. On November 21, 1989, Ross made a television appearance [where his allegations of Jewish “conspiracy” were again vetted] and was again reprimanded by the School Board on November 30, 1989.

The Board of Inquiry found there was no evidence of any direct classroom activity by Ross on which to base a complaint under §5 of the Human Rights Act. However, it also found that his off-duty comments denigrated the faith and belief of Jews. It concluded that his actions violated §5(1) of the Act and that there was no reasonable excuse to justify the discriminatory effect of those actions. It further found that the School Board was liable for any breaches of §5 of the Act by its teachers and, as such, the School Board was also in breach of §5 of the Act. The Board concluded that the School Board discriminated by failing to discipline Ross meaningfully in that, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings. This, it held, resulted in an atmosphere where anti-Jewish sentiments flourished and where Jewish students were subject to a “poisoned environment” within the School District “which has greatly interfered with the educational services provided” to Attis and his children.

Examination of Evidence by the Court

In seeking whether there was reasonable proof to support the Board of Inquiry’s findings, the Supreme Court examined the evidence. It was not enough that Ross made what appeared to be anti-Semitic comments and that he expressed them publicly. The central question was whether those comments either actually, or on the face of it, could be seen as reasonably likely to infect the educational environment. And this, in turn, led the Court to ask about the nature and the role of public schools.

Again, Justice La Forest, speaking for all nine justices, said the evidence supported a finding that Ross’s comments could have had the effect of infecting the school environment. And, in making this finding, Justice La Forest commented on the public nature and, in a sense, the public policy role of education. He wrote:

Ross does not contest the [Board of Inquiry’s] findings in relation to his off-duty conduct and publications, or in relation to anti-Semitic incidents in the School District. His point is that there is no direct evidence linking these two findings. I am unable to agree with this contention. For the following reasons, I am of the view that the finding of discrimination against the School Board must stand.

The Board of Inquiry heard evidence of the nature of Ross’ writings, publications and statements, which include a letter to the editor of The Miramichi Leader, a local television program interview, and the four books or pamphlets listed in the order. The Board found, without hesitation, that these publications contain prima facie [on the face of it] discriminatory comments against persons of Jewish faith and ancestry. Their effect, in its view, was to denigrate the faith and beliefs of Jews and to incite in Christians contempt for those of the Jewish faith by their assertion that they seek to undermine freedom, democracy and Christian beliefs and values. The Board further found that Ross’ comments speak of Jews as the synagogue of Satan, and accuse Judaism of teaching that “Jesus Christ is a bastard, a lewd deceiver, a false prophet who is burning in Hell” and that the Virgin Mary is a whore. Ross was also found to have continuously alleged that the Christian faith and way of life are under attack as a result of an international conspiracy headed by Jews. The Board characterized his primary purpose as being “to attack the truthfulness, integrity, dignity and motives of Jewish persons.” It also made a finding of fact as to Ross’ notoriety in the community of Moncton, and that continued media coverage of his statements and writings over an extended period contributed to his views having gained notoriety in the community and beyond. Given that these findings are findings of fact supported by the evidence, they are entitled to deference by this Court upon review, in light of the relative expertise of the Board in relation to the art of fact-finding in a human rights context, and I accept them [emphasis added].

On the basis of the factual evidence disclosing the substance of Ross’ off-duty conduct, and the notoriety of this conduct in the community and beyond, the Board considered how such conduct impacted upon Ross’ teaching ability. In concluding that conduct of the type evinced by the facts of this case may undermine the capacity of a teacher to fulfil his or her position, the Board [of Inquiry] noted: “In the case of the teacher who has proclaimed the discriminatory views publicly, the effect may adversely impact on the school community. It may raise fears and concerns of potential misconduct by the teacher in the classroom and, more importantly, it may be seen as a signal that others view these prejudicial views as acceptable. It may lead to a loss of dignity and self-esteem by those in the school community belonging to the minority group against whom the teacher is prejudiced.”

The [Nova Scotia Human Rights] Act does not prohibit a person from thinking or holding prejudicial views. The Act, however, may affect the right of that person to be a teacher when those views are publicly expressed in a manner that impacts on the school community or if those views influence the treatment of students in the classroom by the teacher [emphasis added].

Justice La Forest then looked to the evidence presented to the Board of Inquiry as to Ross’s outside conduct as it impacted on the school environment:

The Board heard evidence from two students in the School Board, whom it found to be credible witnesses. The students described in detail the educational community in the school district. They gave evidence of repeated and continual harassment in the form of derogatory name calling of Jewish students, carving of swastikas by other students into their own arms and into the desks of Jewish children, drawing of swastikas on blackboards, and general intimidation of Jewish students.

[The Complainant’s daughter,] Yona Attis, one of the student witnesses, gave evidence of one occasion on which she had planned to attend [Ross’s] school to watch a gymnastic competition, when she was advised [by a teacher] that she could not go to the school because that was “where the teacher who hates Jews works.” The teacher referred to was identified as [Ross]. Yona Attis stated that she attended the competition, but that she felt scared while there, and anxious “that someone was going to come up behind [her] and grab [her] and beat [her] up or something.” Further evidence of taunting and intimidation of the Jewish students was disclosed in her testimony, including incidents of shouting and signalling of the “Heil, Hitler” salute.

What this evidence discloses is a poisoned educational environment in which Jewish children perceive the potential for misconduct and are likely to feel isolated and suffer a loss of self-esteem on the basis of their Judaism.

It is to be noted that the testimony of the students did not establish any direct evidence of an impact upon the school district caused by [Ross’] off-duty conduct. Notwithstanding this lack of direct evidence, the Board concluded: “Although there was no evidence that any of the students making anti-Jewish remarks were directly influenced by any of Malcolm Ross’ teachings, given the high degree of publicity surrounding Malcolm Ross’ publications it would be reasonable to anticipate that his writings were a factor influencing some discriminatory conduct by the students” [emphasis added].

Weighing the Evidence: The “Special” Role of Teachers

Justice La Forest then weighed the evidence set out by the Board of Inquiry. Speaking for a unanimous Supreme Court, he set out the standard of “reasonableness” both as to the findings of fact and the inferences to be drawn from those findings. Those inferences had to be drawn in the context of the nature of public schools, bearing in mind the role they are to perform in society. He stated:

This inference drawn on the basis of what is reasonable to anticipate must be considered in light of whether, in the circumstances, it is reasonable to anticipate that [Ross’] off-duty conduct “poisoned” the educational environment in the School Board and whether it is sufficient to find discrimination according to a standard of what is reasonable to anticipate as the effect of the off-duty conduct. I will consider each of these points in turn.

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. As the Board of Inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it.

Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community’s perception of the ability of the teacher to fulfil such a position of trust and influence, and upon the community’s confidence in the public school system as a whole. Allison Reyes considers the importance of teachers in the education process and the impact that they bear upon the system, in “Freedom of Expression and Public School Teachers” (1995), 4 Dalhousie Journal of Legal Studies 35. She states, at p. 42: “Teachers are a significant part of the unofficial curriculum because of their status as ‘medium.’ In a very significant way the transmission of ‘prescribed messages’ (values, beliefs, knowledge) depends on the fitness of the ‘medium’ (the teacher).”

By their conduct, teachers as “medium” must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to “choose which hat they will wear on what occasion” (see Re Cromer and British Columbia Teachers’ Federation (1986), 29 Dominion Law Reports (4th series) 641 (British Columbia Court of Appeal), at p. 660); teachers do not necessarily check their teaching hats at the school yard gate and may be perceived to be wearing their teaching hats even off-duty. Reyes affirms this point in her article, supra, at p. 37: “The integrity of the education system also depends to a great extent upon the perceived integrity of teachers. It is to this extent that expression outside the classroom becomes relevant. While the activities of teachers outside the classroom do not seem to impact directly on their ability to teach, they may conflict with the values which the education system perpetuates” [emphasis in original].

Then, Justice La Forest cited and quoted from a British Columbia court of appeal decision that dealt with ongoing responsibilities of off-duty teachers to their school board employer. He stated:

I find the following passage from the British Columbia Court of Appeal’s decision in Abbotsford School District 34 Board of School Trustees v. Shewan (1987), 21 British Columbia Law Reports (2d series) 93, at p. 97, equally relevant in this regard: “The reason why off-the-job conduct may amount to misconduct is that a teacher holds a position of trust, confidence and responsibility. If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and in the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying on of the educational system.”

It is on the basis of the position of trust and influence that we hold the teacher to high standards both on and off duty, and it is an erosion of these standards that may lead to a loss in the community of confidence in the public school system. I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers.

However, where a poisoned environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant [emphasis added].

Evidence against Ross

The nature of Ross’s position as a public school teacher allowed the Board of Inquiry to review the facts to determine whether his off-duty activities reflected anti-Semitism that could be imputed to his employer, the school board, in the sense of infecting the learning environment of the schools it administered. Justice La Forest, for the Supreme Court, citing an earlier decision handed down by then Chief Justice Brian Dickson, restated the test for finding a teacher outside employment improper: “Could or would [it] give rise to public concern, unease and distrust of [the teacher’s] ability to perform [his/her] employment duties?”

Justice La Forest reviewed the findings of the Board of Inquiry and accepted them. In doing so, he agreed that the school board had a positive responsibility to prevent such action by Ross as might “poison” the school educational environment. It was a duty, he said, the school board did not carry out:

The Board found that [Ross’s] off-duty comments impaired his ability to fulfil his teaching position. The teaching occupation is uniquely important. This, combined with the substance of [Ross’s] writings and statements and the highly public media through which they were disseminated, i.e. television and published works, supports the conclusion that this finding of the Board is correct....

In the present case, I note that the Board was presented with evidence ... on the likely effects of [Ross’s] conduct. [It was] stated that the Jewish students having a general knowledge of [Ross] could be fearful of him. Indeed, this is borne out in Yona Attis’ testimony, and is supported by the pervasive awareness of [Ross’s] conduct throughout the community. [There was] evidence that it was possible that Jewish students would be negatively influenced by [Ross] and that they would see themselves as the subject of suspicion, distrust and isolation. [Such evidence was that] there might be a reluctance on the part of Jewish parents to become involved in the school system that might deter other Jewish families from moving to Moncton.

[After] a television interview given by [Ross] in 1989, the School Board itself characterized the effect produced by [Ross’s] conduct: “The climate created by this aggressive approach creates hostility that permeates and interferes with the desired tolerance required by the school system to show respect for the rights of all students and their families to practise their religious faith.”

I conclude ... that a reasonable inference is sufficient in this case to support a finding that the continued employment of [Ross] impaired the educational environment generally in creating a poisoned environment characterized by a lack of equality and tolerance. [Ross’s] off-duty conduct impaired his ability to be impartial and impacted upon the educational environment in which he taught.

The Board found that School District No. 15 discriminated contrary to §5 of the Act. It found the School Board had been reluctant to take disciplinary action against [Ross], [despite] the publicity his conduct received and the awareness on the part of the School Board of the situation in the community at large. In effect, its passivity signalled a silent condonation [acceptance] of, and support for [Ross’s] views. The Board found an obligation within the school community “to work towards the creation of an environment in which students of all backgrounds will feel welcomed and equal” (p. 83). It stated (at p. 80): “In such situations it is not sufficient for a school board to take a passive role. A school board has a duty to maintain a positive school environment for all persons served by it and it must be ever vigilant of anything that might interfere with this duty.”

I am in complete agreement with this statement, and I refer to the findings of the Board that the School Board failed to maintain a positive environment. The School Board, it found, was reluctant to become involved and was slow to respond when complaints about [Ross] were first raised.

The evidence discloses that as early as 1978, letters were sent to the Director of School District No. 15 regarding concerns about [Ross’s] continued employment, and requesting his dismissal. The position of the School Board at that time was expressed by Nancy Humphrey, Chairperson of the School Board, as being that [Ross] could do what he wanted on his own time. From 1979 through 1984, [Ross’s] in-class teaching was monitored; however, in 1983, media coverage of the respondent’s activities was augmented.

By 1986–87, the School Board was receiving approximately 10 to 20 letters a week concerning [Ross]. After he wrote an article in The Miramichi Leader in 1986, a scheme directed at more frequent monitoring of his class was put into place. By 1987, the public controversy surrounding [Ross] had grown concerning the level of the School Board’s involvement, and the question as to whether [Ross] would be charged under the hate literature provisions of the Criminal Code was raised. A committee was established by the School Board in 1987 to review the possible impact of the issue on the learning environment. This committee, however, was found by the Board of Inquiry to have failed to address the questions it should have and to appreciate the subtle forms discrimination may take.

According to the acting superintendent, Cheryl Reid, in 1988 [Ross] was “cautioned strongly against any further publications regarding [his] views.” In the same year, the first disciplinary action was taken against [Ross], at which time he was informed that any further publications, or public discussions of his views or works, would result in greater disciplinary action and possible dismissal. A reprimand in the form of a “gag order” was placed on his personal file. Subsequent to this, three complaints were filed against him. The Human Rights Commission began an investigation in response to these complaints. The Board of Inquiry, however, found that the School Board strongly resisted the investigation. The investigation recommended that the Board of Inquiry be established in 1988.

In March 1989, the School Board adopted Policy No. 5006, intended to ensure that students were offered a positive and safe learning environment, in which they were taught respect for the rights and freedoms of the individual. In September 1989, the School Board decided to remove the “gag order” from [Ross’s] file. Two months later, [Ross] appeared on television to express and discuss his views. The School Board responded by ordering a severe reprimand to [Ross], by way of letter, requesting that he refrain from “publicly assailing” another religion. The Board of Inquiry found it difficult to understand why the School Board only gave [Ross] a reprimand at this time as opposed to terminating his employment, given that [Ross] had been sent a strongly worded letter along with a copy of Policy No. 5006 making the intention of the new policy very clear to him.

A review of this chronology led the Board of Inquiry to conclude that the School Board had discriminated in its failure to take a proactive approach to the controversy surrounding [Ross], the effect of which was to suggest the acceptance of [Ross’s] views and of a discriminatory learning environment. The finding of discrimination against the School Board is supported by the evidence and I accordingly see no error in this finding of the Board of Inquiry.

Releasing the Ross Decision — A Symbolic Gesture?

The Supreme Court released the Ross decision on Wednesday, the eve of the Passover — an important Jewish holiday marking the freedom of the Jews from Egyptian bondage and their movement toward receipt of the Ten Commandments. Ordinarily, Supreme Court decisions are released on Thursdays. The Globe and Mail suggested that this was a symbolic gesture on the part of the Court (Globe and Mail, April 4, 1996).

You Be the Judge

Ross: The Order and Freedom of Expression

The case that follows is a continuation of the Ross case. Recall that the Supreme Court of Canada affirmed the finding of the New Brunswick Human Rights Board of Inquiry: There had been discrimination in violation of the provincial human rights act in the failure of the public board of education to take proactive action against a public school teacher who publicly and widely spread anti-Semitic attacks.

Now, however, the question went to the kind of order imposed on Ross. In this regard, remember that the function of a reviewing court, including the Supreme Court of Canada, was to ask whether the order entered by the Board of Inquiry was reasonable in the light of the evidence, and whether it was valid in law.

The Facts

The following was the order entered by the Board of Inquiry:

(2) That the School Board:

immediately place Malcolm Ross on a leave of absence without pay for a period of eighteen months;

appoint Malcolm Ross to a non-teaching position if, within the period of time that Malcolm Ross is on leave of absence without pay, a non-teaching position becomes available in School District 15 for which Malcolm Ross is qualified. The position shall be offered to him on terms and at a salary consistent with the position. At such time as Malcolm Ross accepts employment in a non-teaching position, his leave of absence without pay shall end.

terminate Malcolm Ross’ employment at the end of the eighteen month leave of absence without pay if, in the interim, he has not been offered and accepted a non-teaching position.

terminate Malcolm Ross’ employment with the School Board immediately if, at any time during the eighteen month leave of absence or if at any time during his employment in a non-teaching position, he:

(i) publishes or writes for the purpose of publication, anything that mentions a Jewish or Zionist conspiracy, or attacks followers of the Jewish religion, or

(ii) publishes, sells or distributes any of the following publications, directly or indirectly:

Web of Deceit

The Real Holocaust (The Attack on Unborn Children and Life Itself)

Spectre of Power

Christianity vs. Judeo-Christianity (The Battle for Truth)

The Issues

Did the order respond to the facts as found by the Board of Inquiry?

Was the order valid under the Charter?

Points to Consider

The purpose of any order under the New Brunswick Human Rights Act is to remedy the wrongs found. Such orders are not intended to punish.

Ross has a sincere belief, based on religious convictions, in his anti-Semitic claims.

It is clear that the order of the Board of Inquiry does violate the freedom of expression guaranteed under section 2(b) of the Charter. Compliance with the order of the Board of Inquiry would deny Ross the right to express his anti-Semitic views.

It is possible for the Board order to be sustained if it meets the tests put under section 1 of the Charter, which provides that government may set reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

However, such “limits” must be the minimum necessary to achieve the reasonable government goals.

The Board found, and the Supreme Court accepted, that an important and pressing government goal, as expressed in provincial legislation, among other objectives is to provide New Brunswick students with a public education that is tolerant and fosters a democratic society.

Discussion

In the Ross case, Justice La Forest had no difficulty in finding that the Board of Inquiry order did indeed violate Ross’ rights to freedom of religion and expression as guaranteed by sections 2(a) and (b) of the Charter. In doing so, he accepted that Ross’ views reflected sincerely held religious beliefs.

Justice La Forest quoted from an earlier Supreme Court of Canada decision in The Queen v. Big M Drug Mart Ltd., [1985] 1 Supreme Court of Canada Reports 295, where then Justice Dickson stated: “A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.... The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to [demonstrate] religious belief by worship and practice or by teaching and [making those views known to others].”

But, these rights could and were limited by the province’s human rights act. These limitations fit within the meaning of section 1 of the Charter. The human rights act was a reasonable limit prescribed by law and it was demonstrably justified in a free and democratic society. Indeed, the human rights act was intended, among other things, to hold others with tolerance and respect — not to defame them because of their religion.

This is, in part, what Justice La Forest stated — again, on behalf of a unanimous Supreme Court. It is important to note that the Court drew a line between that which was necessary to curb Ross’s behaviour as a teacher and what he might otherwise do as an employee of the school district in a non-teaching role. In a non-teaching role, Justice La Forest made it clear that Ross was free to speak so far as asserting his Charter rights in that regard were concerned:

The Board’s order asserts a commitment to the eradication of discrimination in the provision of educational services to the public. Based upon the jurisprudence, Canada’s international obligations, and the values constitutionally entrenched, the objective of the [Board’s] order is clearly pressing and substantial....

The [Human Rights] Act in question is conciliatory in nature and makes no provision for criminal sanctions. It is, therefore, well suited to encourage reform of invidious [malicious] discrimination. The Board focused on providing relief in crafting its order, and sought, as much as possible, to avoid punitive effects.

The Board made a finding that §5(1) of the [Human Rights] Act “guarantees individuals freedom from discrimination in educational services available to the public.” In order to ensure a discrimination-free educational environment, the school environment must be one where all are treated equally and all are encouraged to fully participate. Teachers must ensure that their conduct transmits this message of equality to the community at large, and are expected to maintain these high standards both in and out of the classroom.

Ross Removed as Teacher

Justice La Forest continued:

The Board held that the fact that [Ross] publicly made anti-Semitic statements contributed to the “poisoned environment” in the school system, and that it was reasonable to anticipate that his statements and writings had influenced the anti-Semitic sentiment in the schools.... In this case, I think it is sufficient that the Board found it “reasonable to anticipate” that there was a causal relationship between [Ross’s] conduct and the harm — the poisoned educational environment.

In my view, this finding must depend upon [Ross’s] maintaining a teaching position. The reason that it is possible to “reasonably anticipate” the causal relationship in this appeal is because of the significant influence teachers exert on their students and the stature associated with the role of a teacher. It is thus necessary to remove [Ross] from his teaching position to ensure that no influence of this kind is exerted by him upon his students and to ensure that the educational services are discrimination-free. The order seeks to remove [Ross] from his teaching position through clauses 2(a), (b) and (c). These clauses are rationally connected to the objective of the order [emphasis added].

Limits to the Board’s Order

Justice La Forest said, however, that there were limits to the Board’s order. Recall that the Board could only impose the minimum limits on Ross required to deal with his anti-Semitic activity affecting students.

If Ross were granted employment in a non-teaching capacity in the school system, removed from contact with students as such, Justice La Forest set boundaries to the restraints that the Board might impose on Ross. He stated:

My concerns lie with clause 2(d) of the order, which I reproduce below:

“(2) That the School Board:

(d) terminate Malcolm Ross’ employment with the School Board immediately if, at any time during the eighteen month leave of absence or if at any time during his employment in a non-teaching position, he:

(i) publishes or writes for the purpose of publication, anything that mentions a Jewish or Zionist conspiracy, or attacks followers of the Jewish religion, or

(ii) publishes, sells or distributes any of the following publications, directly or indirectly:

Web of Deceit

The Real Holocaust (The Attack on Unborn Children and Life Itself)

Spectre of Power

Christianity vs. Judeo-Christianity (The Battle for Truth)”

I will deal with that part of the order under “minimal impairment.” An impairment must be minimal to the extent that it impairs the right no more than is necessary....

The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement....

In arriving at its order, the Board considered the alternatives available to remedy the discrimination. It concluded that the removal [of Ross] from the classroom was “the only viable solution.” In the course of examining alternative solutions, the Board found that the situation could not be corrected through an apology and renunciation of his views by [Ross]. Nor could it be corrected through continual monitoring of [Ross’s] classroom, as the Board considered the influence of a teacher to be “so much more complex than the formal content of any subject matter taught by the teacher.” The Board also rejected the exclusion of Jewish children from [Ross’s] class or school, emphasizing the importance of accessibility to schools within a public school system. Finally, it concluded that the situation could not be dealt with through monetary compensation to Attis for pain and suffering.

In making its order, the Board stated: “This Board of Inquiry has carefully reviewed the writings and statements of Malcolm Ross and his reaction to directions from the School Board to refrain from such writings and publications. Malcolm Ross’ commitment to his beliefs and intent to publicly proclaim these beliefs through his writings, even following clear direction from the School Board, is obvious.”

The order, in clauses 2(a), (b) and (c), was carefully tailored to accomplish its specific objective, i.e. to remedy the discriminatory situation in School District 15 created through the writings and publications of Malcolm Ross. Any punitive effect is merely incidental. In my view, clauses 2(a), (b) and (c) minimally impair the respondent’s freedom of expression and freedom of religion. In relation to clause 2(d), however, I arrive at a different conclusion.

The Board Order Applied to a Non-Teaching Position

Justice La Forest stated:

The Board found that “Section 5 [of the New Brunswick Human Rights Act] strives for a discrimination-free environment in the school system so that everyone within School District 15 can enjoy the public educational services provided by the School Board without discrimination. Malcolm Ross, by his writings and his continued attacks, has impaired his ability as a teacher and cannot be allowed to remain in that position if a discrimination-free environment is to exist.”

The Board, on the basis of the evidence before it, found that [Ross] had to be moved out of his teaching position. By occupying a position of great influence, his presence contributed to a discriminatory educational environment. The Board did not find that [Ross’s] presence in a non-teaching position would compromise the ability of the School Board to create a discrimination-free environment. Indeed, their order made provision for the possibility that the respondent would occupy a non-teaching position.

It may be that the continued presence of [Ross] in the School Board produces a residual poisoned effect, even after he is removed from a teaching position, and it may be that this is what clause 2(d) seeks to address. Given [Ross’s] high profile and long teaching career, I acknowledge that the problem in the School District could remain for some time.

However, the evidence does not support the conclusion that the residual poisoned effect would last indefinitely once Ross has been placed in a non-teaching role. For that reason, clause 2(d) which imposes a permanent ban does not minimally impair the respondent’s constitutional freedoms. Clause 2(d) is not justified under section 1 [of the Charter].

The deleterious [harmful] effects of clauses 2(a), (b) and (c) of the order upon [Ross’s] freedom of expression and freedom of religion are limited to the extent necessary to the attainment of their purpose. [Ross] is free to exercise his fundamental freedoms in a manner unrestricted by this order, upon leaving his teaching position. These clauses only restrict [Ross’s] freedoms to the extent that they prohibit [Ross] from teaching, based upon the exercise of his freedom of expression and freedom of religion. [Ross] is not prevented from holding a position within the School Board if a non-teaching position becomes available; furthermore, he is to be offered a non-teaching position if it becomes available on terms and at a salary consistent with the position. In my view, the objectives of preventing and remedying the discrimination in the provision of educational services to the public outweigh any negative effects on the respondent produced by these clauses.

The Ross Case — An Appeal Beyond The Supreme Court

Ross appealed the unanimous decision of the Supreme Court of Canada to the United Nations Human Rights Committee. He argued that, as a result of the 1996 decision of the Supreme Court of Canada, he had been denied his right to freely express his religious opinions when he was transferred to a non-teaching position. (The school district was later reorganized, and Ross was laid off.)

Removal from his teaching position, Ross said, violated his freedom of thought, conscience, and religion, and his freedom of expression as guaranteed by Articles 18 and 19 of the International Covenant on Civil and Political Rights. Canada had agreed to abide by that Covenant’s “Optional Protocol” which allows individuals who have exhausted all their national (called “domestic”) remedies to file complaints with the UN’s Human Rights Committee.

The UN committee panel consisted of fifteen members. They unanimously rejected Ross’s claim on December 12, 2000.

The committee members found that the limit to Ross’s freedom of religion was permitted because it was prescribed by law and necessary to protect the fundamental rights and freedoms of others.

In a similar vein, all but one of the committee members found that the limit to Ross’s freedom of expression was allowed since it was provided by law and necessary to respect the rights and reputations of others.

The other committee member was even more emphatic. That member concluded that Ross’s freedom of expression had not been restricted because freedom of expression necessarily involved duties and responsibilities. Article 20 of the International Covenant prohibits advocacy of religious hatred that constitutes incitement to discrimination, hostility, and violence.

“We believe that justice was done,” New Brunswick Human Rights Commission chair Dr. Patrick Malcolmson said. “This decision shows that the balance that our laws strike between freedom of expression and freedom from discrimination is consistent with international human rights standards.”

Professor Tom Kuttner, who was a counsel pro bono [without compensation and in the public interest] for the commission, said: “The decision is an important affirmation by the international community of the integrity of the Canadian human rights regime in general, and that of New Brunswick in particular, and, for this, we can all be justly proud.”

Challenge Question

Another Point of View

The Globe and Mail editorially disagreed with the decision of the Supreme Court of Canada in the Ross case. It set out what it considered the relevant portions of the decision of Justice La Forest, and then it offered the following critique:

We do not share the view that the legal, constitutionally protected activities of teachers on their own time should qualify as grounds for dismissal. The role model basis for assessing teacher competence once disqualified divorced people from teaching in most provinces. Many other grounds could be asserted for similar punitive action on the basis of a person’s identity outside the school. In our view, teachers have a right to personal lives equal to that of any other group.

We do not agree that an employer shows support for the off-work views of any employee by the simple fact of employing that person. Failure to take a positive approach to a controversy more probably reflects the employer’s respect for the employee’s private rights.

The Supreme Court asserts that no direct evidence of harm to students is required to justify the dismissal of a teacher on role-model grounds.... We find the standard of proof here to be unacceptably low. The Court itself is the authority which states that high school students are greatly affected by the simple stature of their teachers. The Court then sets the very low hurdle of reasonable anticipation of harm to justify Mr. Ross’ dismissal on those same grounds.

This case ties imputed and flaccid standards of judgment to speculative standards of proof to justify the firing of a teacher who is exercising his otherwise legal and constitutional rights (albeit most offensively). We dissent (Globe and Mail, April 5, 1996).

Q. Has the editorial considered all the relevant factors reviewed by the Supreme Court in the Ross decision?

The editorial apparently did not consider hate directed against an identifiable group. The editorial seemed to have accepted that what Ross said and had published was entitled to the same level of protection as every other form of expression. This was not the view of the Court in its unanimous ruling.

The Charter itself draws a line of difference between freedoms that are protected, such as freedom of expression and freedom of religion (section 2), and limits that may be placed on those freedoms (section 1).

The Court made it clear that Ross’s freedom of expression and freedom of religion were violated by the order of the Board of Inquiry. The question before the Court, at that point, was whether the limits placed on Ross’s freedoms were justified under section 1 of the Charter.

It was in the context of section 1 that the Court drew a line of difference between expression of hate and the core values intended to be protected under section 2 in terms of freedom of expression. The core values referred to, said the Court, citing precedent, are those that include “the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process.”

Referring to an earlier decision, Justice La Forest quoted from the opinion of then Chief Justice Dickson:

I am very reluctant to attach anything but the highest importance to expression relevant to political matters. But given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need to be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the section 2 [freedom of expression] rationale.

This meant, said Justice La Forest, that limits placed on expressions of hate should attract a “less searching degree of scrutiny and be easier to justify under section 1 [of the Charter].” In this regard, it was the Board of Inquiry which held the human rights hearings and found the facts that pointed to a “poisoned” educational environment that could reasonably be anticipated to be linked to Ross’s off-duty activities. It was a review of those findings in the context of the expressions of hatred that allowed the Court to approve that portion of the Board of Inquiry ending Ross’s teaching career in the public school system of the province.

Ross, Free Expression, and the Cartoon Battle

Josh Beutel was a well-known freelance political cartoonist for the Saint John Telegraph-Journal and the Evening Times-Globe (Saint John, New Brunswick newspapers). During the course of the litigation involving Malcolm Ross, Beutel had drawn and published a number of cartoons relevant to the conflict.

Following the Supreme Court’s decision in the Ross case, Beutel was asked and agreed to speak before a meeting of the New Brunswick Teachers’ Association. He spoke about Ross and, in the process, showed a number of cartoons concerning the issues raised. Ross responded by bringing a suit for defamation. Specifically, Ross claimed that Beutel had depicted him, both in cartoons and speech, as an anti-Semite, a racist, and a Nazi.

New Brunswick Justice Paul Creaghan had no difficulty finding that Ross was an anti-Semite who strongly opposed Judaism and a racist in the sense of opposing racial intermingling. Justice Creaghan said: “[Ross] perceives Judaism as an enemy of traditional Christian teaching.... He embraces and he is prepared to do all he can to defend his faith against a group who he sees as being out to undermine it.”

But, Justice Creaghan said, Beutel went beyond the law when he likened Ross to a Nazi — indeed a Nazi propaganda leader (Joseph Goebbels) during the years of Adolf Hitler. Justice Creaghan stated: “[Ross] may have unknowingly, or even knowingly, picked up some ideas from current Nazi sympathizers, but to take as a fact that Malcolm Ross is a Nazi goes too far.” Ross was not a member of the Nazi party, and to have stated otherwise, the Justice continued, libeled and defamed him and his reputation. The Justice ordered that Beutel pay Ross $7,500 in damages and $2,000 in court costs (Toronto Star, January 20, 2000).

The judgment was appealed to the New Brunswick Court of Appeal. The Canadian Newspaper Association, the Association of Canadian Editorial Cartoonists, the Canadian Jewish Congress, and the League for Human Rights of B’nai Brith Canada joined Beutel’s appeal. The appellate court set two days for hearings on the matter.

Douglas Christie, Ross’s lawyer, called the groups’ interest a “monumental irony.” He said: “When Mr. Ross was being denied his job because of deeply held religious beliefs, you didn’t hear [many] defending his freedom of speech. But when he is defamed by false and malicious speech, those people proclaim their right to free speech.... [Beutel] mocked Ross’s religious beliefs and humiliated him in front of his peers.... The cartoon indicated he was the moral equivalent of Goebbels. It was not true and it was not fair comment.”

In a unanimous decision, the New Brunswick Court of Appeal reversed the judgment of the lower court against Beutel. The Chief Justice Joseph Z. Daigle, said, in part: “Honesty in expressing one’s real view has been found to be the bedrock foundation for a good defence of fair comment” (Toronto Star, June 1, 2001).

The Nature of Political Cartoons

Are political cartoons a special kind of expression? In their nature, do they permit exaggeration? We quote in part an editorial by the Toronto Star written in response to the judgment of Justice Creaghan in the Ross case action for libel and defamation:

Love ‘em or hate ‘em, editorial cartoons of the sort that we carry every day on this page are the lifeblood of democratic politics. Like editorials and opinion columns, they’re meant to provoke debate on important social issues. Indeed, more than a few public figures proudly display on their office walls cartoons that have lampooned them.

So it’s disturbing that a New Brunswick judge, Mr. Justice Paul Creaghan, has found cartoonist Josh Beutel of the Saint John Telegraph-Journal guilty of defaming former teacher Malcolm Ross, by likening him to a Nazi. Beutel was ordered to pay Ross $7,500 in damages for criticizing him at a public forum sponsored by the New Brunswick Teachers’ Association, which in turn was ordered to pay Ross $2,100 in court costs....

In a famous judgment on a cartoon that depicted former British Columbia cabinet minister — and later premier — Bill Vander Zalm pulling the wings off a fly, the B.C. appeal court overturned a ruling that the cartoon was libellous because the trial judge failed to take into account “the symbolism, allegory or satire and usual exaggeration to be found in cartoons.”

Closer to home, the Ontario Press Council, which serves as a watchdog on press ethics, has long recognized that cartoonists need considerable latitude to ply their art of caricature and exaggeration.

“A cartoonist traditionally uses grotesque representations of persons and things to express controversial, unpopular or satirical opinions on social issues,” the council wrote in a judgment last year involving a complaint by the police about a Toronto Star cartoon by Patrick Corrigan. In other rulings, the council has found that editorial cartoonists routinely use “caricatures, grotesque representations” and “exaggeration” to make points. “The council’s view is that readers do not generally take cartoons literally,” it ruled in 1994.

In other words, they know silliness when they see it. Creaghan’s judgment flies in the face of common sense and accepted journalistic practice. It risks putting a chill on editorial cartooning. That would undermine free speech and spirited debate in this country. This judgment should be appealed, and overturned (Toronto Star, May 4, 1998).

Beyond The Law: A Matter of Judgment

In this chapter, we have written about the law and the boundaries imposed on freedom of expression. The essential point here is that the law, declared by legislature, the courts, and the Charter, in effect do no more than set boundaries. How individuals, including the media, respond to those boundaries is another matter.

For example, a Danish publication decided to publish derogatory cartoons of the Prophet Mohammed. This stirred great tension in the Muslim community. There was no doubt that the publisher had the legal right to publish the cartoons. Whether they should have been published was a matter that called for the exercise of individual judgment. Of course, there is nothing to prevent a newspaper or any medium from refusing to publish a matter because in their view it exceeds good taste and fairness (London Free Press, February 13, 2006).

References and Further Reading * Cited by the Supreme Court of Canada.

Globe and Mail .“Top Court Rejects Anti-Semite as Teacher.” April 4, 1996.

_____. “The Crime, the Proof and the Punishment.” April 5, 1996.

Harding, Katherine. “Cartoonist Wins Defamation Case on Appeal.” Toronto Star, June 1, 2001.

London Free Press. “Editorial Freedom Also Means Responsibility.” February 13, 2006.

Reyes, Allison. 1995. “Freedom of Expression and Public School Teachers.” Dalhousie Journal of Legal Studies 4: 35.*

Statistics Canada, Religions in Canada, Ottawa: Industry, Science and Technology Canada, 1993. 1991 Census Canada, Catalogue No. 93-319.

Toronto Star. “Anti-cartoon Judgment.” May 4, 1998.

Toughill, Kelly. “Limits of Free Speech at Stake in Cartoonist’s Case.” Toronto Star, January 20, 2000.

Chapter 4

Freedom of Religion: Placing Limits on Tradition

Section 2 of the Charter provides: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion....” However, section 2(a) is conditioned by section 1 of the Charter: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Among the questions raised in this chapter are:

May public school students claim the right to freedom of religion?

May the state impose limits on the exercise of freedom of religion?

Is public safety a reasonable basis for limiting freedom of religion?

The primary case we shall discuss is Balvir Singh Multani and Balvir Singh Multani, in his capacity as tutor to his minor son, Gurbaj Singh Multani [Appellants] v. Commission scolaire Marguerite-Bourgeoys and Attorney General of Quebec [Respondents] and [as Interveners in the case] World Sikh Organization of Canada, Canadian Civil Liberties Association, Canadian Human Rights Commission and Ontario Human Rights Commission. For ease of discussion, we refer to the case as the kirpan case. We refer to the Commission scolaire Marguerite-Bourgeoys as the school board, which it is, in the sense of having supervisory authority over public schools in Quebec.

The kirpan case is concerned not with the right of an adult to freedom of religion, but with that of a minor — a student who claimed the right to wear a kirpan, a symbolic dagger, in the exercise of his religious duties as an Orthodox Sikh. The decision of the Supreme Court of Canada, handed down on March 2, 2006, was unanimous in its conclusion that the student had this right and that the school board had not demonstrated that wearing the kirpan could not be accommodated in the context of school safety.

On the constitutional analysis, Justice Charron spoke for the Court majority. Justices Deschamps and Rosalie Abella would have resolved the issues on non-constitutional grounds. They would have looked to the administrative standard that should have guided the school board, and they would have found that the board interpretation of that standard was unreasonable. Our review of the case is focused on the constitutional analysis of the Court majority.

The Kirpan Case

Gurbaj Singh Multani, twelve, was a public school student in Quebec. Like his father, Balvir Singh Multani, he was baptized as an Orthodox Sikh and believed that his religion required him to wear at all times a kirpan — a twenty-centimeter-long ceremonial dagger with a metal blade, a sheath, and a fabric holster worn close to the body.

On November 19, 2001, the kirpan that Gurbaj Singh was wearing under his clothing (as he usually did) accidentally fell to the ground. The school was concerned that he was carrying something that could injure other students. Its legal counsel sent a letter to Gurbaj Singh’s parents authorizing their son to continue wearing the kirpan to school provided it was sealed inside his clothing. They agreed with this condition that was seen by them and the school as a “reasonable accommodation.”

The school board, however, reached a different conclusion. It refused to ratify the agreement. By resolution, it claimed that the agreement violated regulations issued by it under provincial statutory authority. Included among those regulations was one prohibiting “the carrying of weapons and dangerous objects” on school grounds. The kirpan was viewed as a weapon or dangerous object. On further administrative review by the board, the decision was upheld. However, the reviewing authority stated that it would allow Gurbaj Singh to wear a “symbolic kirpan,” one that would be a pendant or that would look like a dagger but would be of a material that would make it harmless.

Decisions of the Lower Courts

Gurbaj Singh (supported by his father) and his father appealed individually the decision of the school board to the Quebec Superior Court. Among other provisions, they cited section 2(a) of the Charter which, as noted, sets out as a fundamental freedom the right to freedom of religion. At no point did any of the parties question the right of Gurbaj Singh, as a minor and as a student in a public school, to exercise this right.

Father and son asked the Superior Court to declare invalid the judgment of the school board — and until this was done, they requested an order (called an interim injunction) that would allow Gurbaj Singh to wear his kirpan under the conditions set out in the first letter from school counsel (i.e. sewn under his clothing and sheathed). On April 16, 2002, the interim injunction was allowed on conditions earlier set by the school counsel’s letter.

On May 17, 2002, Justice Danielle Grenier of the Superior Court declared the order of the school board null and of no force or effect. The judge authorized Gurbaj Singh to wear the kirpan on the following conditions:

that it be worn under his clothes;

that it be carried in a sheath made of wood, not metal, to prevent it from causing injury;

that it be placed in its sheath and wrapped and sewn in a sturdy cloth envelope, and that this envelope must be sewn to his clothing;

that school personnel be authorized to verify, in a reasonable fashion, that these conditions were met;

that Gurbaj Singh keep the kirpan in his possession at all times, and report its disappearance to school authorities immediately;

that failure to comply with these conditions would result in the loss of Gurbaj Singh’s right to wear the kirpan at school.

Justice Grenier discussed first the “accommodation” initially reached between Gurbaj Singh, his parents, and the school. She noted that the need to wear a kirpan was “based on a sincere religious belief held by Gurbaj Singh.” And, she found that there was no evidence of any violent incidents involving kirpans in Quebec schools.

Her decision was appealed to the Quebec Court of Appeal. Justice Louise Lemelin, speaking for a unanimous court, ruled that the school board had never agreed to “accommodate” Gurbaj Singh. Rather, it had always taken the position that the kirpan must be rendered harmless. The Court of Appeal reversed the decision of Justice Grenier.

For the Court of Appeal, Justice Lemelin had no doubt that Gurbaj Singh’s need to wear the kirpan was a sincerely held religious belief — a belief important to him. Nor did she have any doubt that the action taken by the school board infringed on Gurbaj Singh’s freedom of religion within the meaning of section 2(a) of the Charter.

The question on appeal was whether the conditions for limiting freedom of religion set out in section 1 of the Charter had been met. The action taken by the school board, she said, “was motivated by a pressing and substantial objective, namely to ensure the safety of the school’s students and staff.” She stated that there was a direct and rational connection between wearing the kirpan to school and the goal of maintaining a safe environment.

The difficulty with the trial court decision, Justice Lemelin said, was that the kirpan was a dangerous weapon. The conditions imposed by the trial court did not eliminate “every risk.” Those conditions only made it more difficult for someone else to pry the weapon from the undergarments of the student. To allow those conditions to stand, she continued, would cause the school board to lower its safety standards. In the result, for the Court of Appeal, she stated that the action taken by the school board was not unreasonable (Globe and Mail, April 12, 2005).

The Supreme Court of Canada Decides

At some point during the litigation, Gurbaj Singh transferred from his public school to a private school where he was permitted to wear the kirpan, consistent with his religious beliefs. The decision of the Quebec Court of Appeal was appealed to the Supreme Court of Canada. Five years after Gurbaj Singh’s kirpan had fallen on the grounds of his school, the Supreme Court ruled in his favour. It struck the decision of the school board, and it implied that the conditions first set by school counsel and agreed upon by Gurbaj Singh and his parents probably would meet the requirements of section 1 of the Charter.

Justice Charron, for the Court, spoke of the importance of freedom of religion. She quoted extensively from earlier Court decisions:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience....

With the Charter, it has become the right of every Canadian to work out for himself or herself what his or her religious obligations, if any, should be and it is not for the state to dictate otherwise.... Freedom of religion consists ... of the freedom to undertake practices and harbour beliefs, having a nexus [meaningful connection] with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.”

The Supreme Court of Canada accepted what the trial and appellate courts had concluded: Wearing the kirpan was an important part of the religious beliefs of Gurbaj Singh. Curtailing his right to wear it impinged on his section 2(a) Charter right to freedom of religion. The burden was on Gurbaj Singh to prove his belief as to wearing the kirpan was important and that it was religiously based. He did that. (For a discussion relating to this, see “You Be the Judge: ‘A Religiously Motivated Interpretation,’” below.)

The Primary Issue: Section 1 of the Charter

The school board made its kirpan ruling under authority of a provincial statute. In this sense, the action taken was that of government. For this reason, that action had to conform with the Charter. The action was a rule of law within the meaning of section 1 of the Charter which guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The burden of proof was on the school board to show, on a balance of probabilities, that the infringement was reasonable and demonstrably could be justified in a free and democratic society (the language of section 1). This required the board to meet two standards:

The kirpan rule must be sufficiently important to limit a constitutional right.

The means chosen by the school board must be proportional to the purpose of the rule. (That is, the rule must do no more than is necessary to achieve a legitimate government objective.)

Justice Charron examined the objective of the kirpan rule. She quoted from the Court of Appeal decision which stated that the board’s ruling “was motivated by [a pressing and substantial] objective, namely, to ensure an environment conducive to the development and learning of the students. This requires [the board] to ensure the safety of the students and the staff. This duty is at the core of the mandate entrusted to educational institutions.”

Gurbaj Singh conceded that this was a proper objective and that it passed the first stage of the test. The board also submitted fairly detailed evidence consisting of affidavits from various stakeholders in the educational community explaining the importance of safety in schools and the upsurge in problems relating to weapons and violence in schools.

Yet, Justice Charron said that the board’s goal, while valid, had to be more fully defined:

Clearly, the objective of ensuring safety in schools is sufficiently important to warrant overriding a constitutionally protected right or freedom. It remains to be determined what level of safety the governing board was seeking to achieve by prohibiting the carrying of weapons and dangerous objects, and what degree of risk would accordingly be tolerated.... The possibilities range from a desire to ensure absolute safety to a total lack of concern for safety. Between these two extremes lies a concern to ensure a reasonable level of safety.

On the facts, Justice Charron found that the goal of the school board was to achieve reasonable safety in the schools. This was a goal that fell between absolute safety and minimal safety. (For a discussion of this, see “A Matter of Balance,” below.) And, such a goal, she said is, without question, a pressing and substantial one.

Proportionality

In her section 1 analysis, Justice Charron moved to the issue of proportionality. This relates to the means used to achieve a proper goal — in this instance, reasonable safety in the schools. Here the question is: Does the board’s kirpan rule further its goal of reasonable safety in the schools? She said such a connection existed:

Prohibiting Gurbaj Singh from wearing his kirpan to school was intended to further this objective [of reasonable safety in the schools]. Despite the profound religious significance of the kirpan for Gurbaj Singh, it also has the characteristics of a bladed weapon and could therefore cause injury. The [board’s] decision therefore has a rational connection with the objective of ensuring a reasonable level of safety in schools. Moreover, it is relevant that [Gurbaj Singh] has never contested the rationality of the ... rule prohibiting weapons in school.

The next issue under proportionality is one that often is central to whether the questioned action can be justified under section 1 of the Charter. The Supreme Court has ruled that the limit must minimally impair the right or freedom that has been violated. Yet, this does not mean, said Justice Charron, that the “impairment” be the least possible invasion. This is how she expressed the standard: “The impairment must be ‘minimal,’ that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.”

This is the standard to apply to the school board in the kirpan case. Justice Charron stated: “It must be determined whether the decision to establish an absolute prohibition against wearing a kirpan ‘falls within a range of reasonable alternatives.’”

Yet, what the school board did was to impose an absolute prohibition against Gurbaj Singh wearing his kirpan to school. It claimed this was necessary because the presence of the kirpan at the school would pose numerous risks for the school’s pupils and staff. Yet, said Justice Charron, it was important to note that Gurbaj Singh never claimed a right to wear his kirpan to school without restrictions. Rather, he was willing to accept conditions imposed by Grenier J. of the Superior Court.

The Board’s Arguments

Justice Charron summarized the board’s fears, and then proceeded to deal with each of them:

To allow the kirpan to be worn to school involves the risk that it could be used for violent purposes by the person wearing it, or by another student who might take it away from him.

It could lead to an increase in the number of weapons at the school.

Its presence could have a negative impact on the school environment. The board argued that the kirpan is a symbol of violence and that it sends the message that the use of force is a way to assert rights and resolve conflicts. This, in turn, would undermine the sense of safety and compromise the spirit of fairness that should prevail in schools, in that its presence suggests the existence of a double standard.

Bear in mind that Justice Charron’s approach to each board argument was in reference to the objective or legitimate Charter goal of establishing reasonable safety in the school — not absolute safety. For the Court, she stated that the evidence showed that Gurbaj Singh did not have behavioural problems. Nor had he ever resorted to violence at school. Further, Justice Charron said:

The risk that this particular student would use his kirpan for violent purposes seems highly unlikely to me. In fact, the [board] has never argued that there was a risk of his doing so.

As for the risk of another student taking his kirpan away from him, it also seems to me to be quite low, especially if the kirpan is worn under conditions such as were imposed by Grenier J. of the Superior Court. In the instant case, if the kirpan were worn in accordance with those conditions, any student wanting to take it away from Gurbaj Singh would first have to physically restrain him, then search through his clothes, remove the sheath from his guthra, and try to unstitch or tear open the cloth enclosing the sheath in order to get to the kirpan. There is no question that a student who wanted to commit an act of violence could find another way to obtain a weapon, such as bringing one in from outside the school. Furthermore, there are many objects in schools that could be used to commit violent acts and that are much more easily obtained by students, such as scissors, pencils and baseball bats.

In her brief reasons, Grenier J. explained that her decision was based in part on the fact that “the evidence revealed no instances of violent incidents involving kirpans in schools in Quebec” and on “the state of Canadian and American law on this matter.” In fact, the evidence in the record suggests that, over the 100 years since Sikhs have been attending schools in Canada, not a single violent incident related to the presence of kirpans in schools has been reported.

The lack of evidence of risks related to the wearing of kirpans was also noted in 1990 by a board of inquiry of the Ontario Human Rights Commission, which considered the presence of kirpans in schools in great depth in Pandori v. Peel Board of Education (1990), 12 Canadian Human Rights Reports D/364; its decision was affirmed by the Ontario Divisional Court in Peel School Board v. Ontario Human Rights Commission (1991), 3 Ontario Reports (3d series) 531, and leave to appeal was refused by the Ontario Court of Appeal. The board of inquiry allowed kirpans to be worn in Ontario schools under conditions similar to the ones imposed by Grenier J. of the Quebec Superior Court. The board noted that there had been no incidents involving kirpans in Canadian schools....

The decision was affirmed by the Ontario Divisional Court, which stated: “We can see no error in principle in the way it applied its judgment to the facts of this case, particularly in light of the lack of any incident of kirpan-related violence in any school system [in Canada].”

Justice Charron, reviewing the evidence, found no basis for any claim that kirpans had been used as weapons in schools. Yet, there remained the claim of the board that it did not have to wait for harm to be done before acting. However, she said, that fear, not founded on fact, would not satisfy the burden placed on the board by section 1 of the Charter to justify an infringement of Gurbaj Singh’s right to freedom of religion. She said: “Given the evidence in the record, it is my opinion that the [board’s] argument in support of an absolute prohibition — namely that kirpans are inherently dangerous — must fail.”

There remained, however, two other board arguments:

Allowing kirpans would encourage students to bring other weapons to school.

The mere presence of kirpans would “contribute to a poisoning of the school environment.”

Justice Charron analyzed and dismissed both arguments. As to the first claim, she said it was essentially covered in her review of the lack of any evidence that kirpans had been used as weapons in schools. There simply was no evidence that students wearing kirpans acted as a motivator for other students to arm themselves. She concluded that the argument, in effect, was “purely speculative.”

Finally, there was the claim on the part of the board that allowing kirpans would have a negative impact on school environment. It would substitute the symbol of violence or force for peaceful resolution of disputes. Justice Charron rejected the argument not only because it was contradicted by the evidence, but also because, in the view of the Court, it did “not take into account Canadian values based on multiculturalism.” She wrote: “Religious tolerance is a very important value of Canadian society. If some students consider it unfair that Gurbaj Singh may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instill in their students this value that is, as I will explain in the next section, at the very foundation of our democracy. ”

In the result, Gurbaj Singh’s right to wear a kirpan, under conditions, was affirmed. However, as noted, at some point during the appeal process, he left the public school system and entered a private school which permitted students to wear the kirpan.

Justice Charron, for the Court, was not required to enter an order relating specifically to Gurbaj Singh. The Court did enter an order that declared the board rule void. But, the reasoning beyond that order clearly suggested that the conditions first imposed by the trial court relating to wearing the kirpan would be allowed (Globe and Mail, March 3, 2006).

You Be the Judge

“A Religiously Motivated Interpretation”

The Facts

The facts that follow were suggested in the kirpan case.

Randy Smith, a bright and alert fifteen-year-old, has become interested in Sikhism. His parents, who are non-religious, have done nothing to dissuade him. They see him as capable of making up his own mind.

With his parents’ permission, Randy has attended a number of Sikh meetings. He has studied Sikh scriptures, and firmly and fully embraces the tenets of Sikhism, including the wearing of the kirpan. He keeps the kirpan on his body at all times. Yet, he has not formally become a Sikh; he has not been baptized as such. He would like to change his name to include that which Sikh men are called: “singh,” meaning lion.

Randy is enrolled in a British Columbia public high school. There have been incidents of violence between students on school grounds. Weapons of many kinds have been used in such fights, including guns and knives. For many years the school board has had a policy prohibiting anyone entering school grounds from carrying guns or knives. They are considered dangerous weapons. Kirpans, from the viewpoint of the school board, fall into this category.

However, the school board, following discussions with representatives of the Sikh community, has modified its policy relating to kirpans: If the student is in fact a Sikh, he will be permitted to carry a kirpan in school. However, it must be sheathed and not visible, and it must be sewn to his clothing.

But, the school board does not consider Randy to be a Sikh. The fact that he sincerely believes in the tenets of Sikhim is not relevant. Under no circumstances will he be permitted, regardless of his wishes, to wear a kirpan under the school board’s kirpan exception.

The Issue

May Randy claim the right to freedom of religion within the meaning of section 2(a) of the Charter and carry the Sikh kirpan?

Points to Consider

The burden of proof is on Randy to show that his convictions are based on religion.

Randy must demonstrate that the position of the school board is not a “trivial” interference with his ability to act in accordance with his religious beliefs.

Randy has not formally been baptized into the Sikh religion.

By far, the majority of males in the Sikh community in the area where Randy lives agree with the school board policy concerning kirpans.

Randy’s religious belief concerning the wearing of the kirpan on the outer part of his clothing is sincere.

It is a general rule of law that the trial court judge makes findings as to the credibility of witnesses (that is, as to whether they are to be believed, a finding often based on demeanour).

Discussion

The issue is preliminary to the question as to whether the school board rule is reasonable in meeting the conditions set out in section 1 of the Charter. Unless Randy can satisfy the test of religious convictions, he cannot challenge the reasonableness of the school board rule. He must first prove that he is motivated by sincerely-held religious convictions. If he cannot do this, then the school board rule cannot be challenged by him on grounds that it violates his freedom of religion under section 2(a) of the Charter.

Justice Charron, speaking for the majority in the kirpan case, cited earlier Supreme Court of Canada decisions and stated that freedom of religion allows individuals the freedom to follow their religious practices or beliefs regardless of whether or not they conform with official religious dogma. To establish that their freedom of religion has been infringed, individuals must demonstrate sincere belief that their practices or beliefs have a real connection with religion and that a serious attempt has been made to interfere with their ability to act in accordance with those practices or beliefs.

What Was Proved in the Kirpan Case

Now, compare what the student proved in the kirpan case as compared to this exercise. We will deal first with the kirpan case. Here, what the student attempted to prove was that his faith required him at all times to wear a kirpan made of metal. Evidence was introduced, which was not contradicted. No one contested the fact that the orthodox Sikh religion requires its adherents to wear a kirpan at all times.

Viewing the evidence, Justice Charron stated:

The affidavits of [Sikh] chaplain Manjit Singh and of Gurbaj Singh [the student] explain that Orthodox Sikhs must comply with a strict dress code requiring them to wear religious symbols commonly known as the Five Ks: (1) the kesh (uncut hair); (2) the kangha (a wooden comb); (3) the kara (a steel bracelet worn on the wrist); (4) the kaccha (a special undergarment); and (5) the kirpan (a metal dagger or sword). Furthermore, Manjit Singh explains in his affidavit that the Sikh religion teaches pacifism and encourages respect for other religions, that the kirpan must be worn at all times, even in bed, that it must not be used as a weapon to hurt anyone, and that Gurbaj Singh’s refusal to wear a symbolic kirpan made of a material other than metal is based on a reasonable religiously motivated interpretation [emphasis added].

For the Court, Justice Charron ruled:

The fact that different people practise the same religion in different ways does not affect the validity of the case of a person alleging that his or her freedom of religion has been infringed. What an individual must do is show that he or she sincerely believes that a certain belief or practice is required by his or her religion. The religious belief must be asserted in good faith and must not be fictitious, capricious or an artifice.... In assessing the sincerity of the belief, a court must take into account, inter alia [among other things], the credibility of the testimony of the person asserting the particular belief and the consistency of the belief with his or her other current religious practices… .

[The student] says that he sincerely believes he must adhere to this practice in order to comply with the requirements of his religion. Grenier J. of the Superior Court declared ... and the Court of Appeal reached the same conclusion ... that [the student’s] belief was sincere. [The student’s] affidavit supports this conclusion, and none of the parties have contested the sincerity of his belief.

Furthermore, [the student’s] refusal to wear a replica made of a material other than metal is not capricious. He genuinely believes that he would not be complying with the requirements of his religion were he to wear a plastic or wooden kirpan. The fact that other Sikhs accept such a compromise is not relevant, since as [the trial judge] mentioned in her decision, “We must recognize that people who profess the same religion may adhere to the dogma and practices of that religion to varying degrees of rigour [emphasis added].”

Finally, the interference with [the student’s] freedom of religion is neither trivial nor insignificant. Forced to choose between leaving his kirpan at home and leaving the public school system, [he] decided to follow his religious convictions and is now attending a private school. The prohibition against wearing his kirpan to school has therefore deprived him of his right to attend a public school.

What Randy Must Prove

On the facts, there are similarities between Randy and the student in the kirpan case. Both profess belief in that part of Sikhism which requires the wearing of what the Supreme Court of Canada referred to as the “Five Ks,” including the kirpan. Both were minors, and both had asserted their religious beliefs while they were attending a public school. Both were subject to school rules which prohibited anyone from bringing to the school dangerous weapons, including daggers.

But, on the facts — and, ultimately, on the law — there are some differences between the two students. In the kirpan case, the student had been baptized, that is, formally initiated into the Sikh religion. Further, he had (among others) the chaplain of the temple where he prayed testify in his behalf as to his belief in the kirpan, and its importance — and whether it should be a real dagger, made of metal, or something smaller, made perhaps of wood or plastic.

Randy has never formally been baptized into the Sikh faith. Nor does he have anyone to testify for him — other than perhaps his parents — concerning his adherence to Sikh tenets. But, Justice Charron made it clear that being a formal member of a religion is not a pre-condition to the exercise of a claim to freedom of religion under section 2(a) of the Charter.

Still, the fact that Randy merely says that he believes in carrying the kirpan as a religious duty does not necessarily make it possible for him to do so. Justice Charron said that the claim to religious belief must be sincere and that it must reflect a deeply held belief. And, what this comes to is a matter of credibility. That is, Randy must convince the trial court judge, just as was done in the kirpan case, that he really means what he says. In the kirpan case, there was, in addition to the testimony of the student, the evidence of others, including a Sikh chaplain, who spoke about the nature of the Sikh religion and, as importantly, about the student’s “reasonable interpretation” of the kirpan requirement.

One can only say, again on the facts, that in law the decision as to whether Randy is credible will be left to the trial judge. It is the trial judge who must decide whether to believe or doubt whether Randy really holds as a religious conviction that carrying a kirpan of the kind described is necessary to his religious beliefs. But, it should be added, even if Randy satisfies the judge on this point, there remains the question, central to our discussion of the kirpan case, as to whether the school board rule was reasonable.

Challenge Question

Kirpans on Planes?

Air Canada announced a rule that kirpans, along with other sharp instruments, would not be permitted on any of its flights, either domestic or foreign. This was an absolute rule. No exceptions would be allowed.

Q. The issue was presented to a Canadian Human Rights Tribunal which administers a law that includes prohibiting religious discrimination. Should the rule in the kirpan case be applied? That is, should Air Canada be required to justify its rule in terms of “minimal impairment” of the right of Sikhs who believe, as an article of religious faith, that they must carry kirpans? In effect, is this case similar to that which the Supreme Court decided as to Sikh students in public schools?

Justice Charron discussed this issue in the kirpan case. She quoted from the tribunal’s decision allowing the Air Canada rule to stand. The tribunal stated (and Justice Charron apparently agreed):

In assessing whether or not [Air Canada’s] weapons policy can be modified so as to accommodate Sikhs detrimentally affected, consideration must be given to the environment in which the rule must be applied. In this regard, we are satisfied that aircraft present a unique environment. Groups of strangers are brought together and are required to stay together, in confined spaces, for prolonged periods of time. Emergency medical and police assistance are not readily accessible [emphasis added].

Unlike the school environment ... where there is an ongoing relationship between the student and the school and with that a meaningful opportunity to assess the circumstances of the individual seeking the accommodation, air travel involves a transitory population. Significant numbers of people are processed each day, with minimal opportunity for assessment. It will be recalled that Mr. Kinnear testified that Canada 3000 check-in personnel have between 45 and 90 seconds of contact with each passenger.

A Kirpan in a Courtroom?

Question: May a judge ban kirpans in a courtroom? Is this really any different than a school prohibiting kirpans?

Answer: Justice Charron dealt with this question. In the kirpan case, it was raised by the school board as a justification for prohibiting the use of kirpans. The case was The Queen v. Hothi, [1985] 3 Western Weekly Reports 256 (Manitoba Court of Queen’s Bench), affirmed on appeal, [1986] 3 Western Weekly Reports 671 (Manitoba Court of Appeal).

The trial judge was permitted to impose a no-kirpan rule. But, Justice Charron noted what she called the “special circumstances” of the case. She said:

The judge who prohibited the wearing of the kirpan in the courtroom was hearing the case of an accused charged with assault under §245 of the Criminal Code. [The judge noted] the special nature of courts and stated the following about wearing kirpans in courtrooms: “It serves a transcending public interest that justice be administered in an environment free from any influence which may tend to thwart the process [of justice]. Possession in the courtroom of weapons, or articles capable of use as such, by parties of others is one such influence.” [Justice Charron seemed to agree with this statement.]

A Matter of Balance

In the kirpan case, the Supreme Court of Canada ruled that an absolute ban on the kirpan in schools was not a reasonable limit within the meaning of section 1 of the Charter. However, let’s assume that the Court accepted that the kirpan ban was a reasonable means for achieving school safety.

Section 1 of the Charter would still require that a determination as to whether the harmful effects of allowing the kirpan outweigh its positive effects. And, Justice Charron suggested that the negative effects of prohibiting the use of the kirpan would outweigh the positive effects of promoting school safety. In her statement, she included citations of past Supreme Court of Canada decisions and stated:

An absolute prohibition would stifle the promotion of values such as multiculturalism, diversity, and the development of an educational culture respectful of the rights of others. This Court has on numerous occasions reiterated the importance of these values. For example [she said, citing other Supreme Court of Canada decisions]:

“A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate.

“Schools ... have a duty to foster the respect of their students for the constitutional rights of all members of society. Learning respect for those rights is essential to our democratic society and should be part of the education of all students. These values are best taught by example and may be undermined if the students’ rights are ignored by those in authority.

“Our Court [has] accepted that teachers are a medium for the transmission of values.... Schools are meant to develop civic virtue and responsible citizenship, to educate in an environment free of bias, prejudice and intolerance.”

Justice Charron continued:

A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. On the other hand, accommodating [the student] and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition thus outweigh its salutary [positive] effects.

You Be the Judge

The Case of “Zero Tolerance”

This case is a hypothetical one. It serves to illustrate points of law.

The Facts

Violence has been rampant in the public high schools administered by the Runnymede School Board of British Columbia. The intensity of that violence has steadily increased over the past four years. There have been numerous injuries to students, and even to some teachers who have tried to end fights. Several of these injuries have been life-threatening.

The weapons of choice range from handguns to knives and sharp instruments (such as compasses) used in studies. Fighting has taken place in the school and on school grounds, both during and after school hours.

Police and school investigators have been an increasing presence. Their investigations have pointed to a number of causes including gang development and competition, drugs, and a resulting “culture of violence.”

The school board, an elected body governed by statute, has responsibility to “ensure the safety of students and school staff so that an environment conducive to learning can be maintained.”

The board has held a number of meetings open to the public, and especially to parents, students, and staff of its high schools. Board officials have been there to answer questions, interact, and receive suggestions. By far, the suggestion approved by most was put forward by students, themselves: zero tolerance. That is, absolutely no instrument that could be used to fight should be permitted. And, fighting, itself, was to be banned.

The board accepts the proposal. Metal detectors are placed throughout each public high school. Everyone coming onto school grounds is subject to search by school officials or police (who are invited onto school grounds by the board for that purpose). Any sharp instrument, including compasses or scissors, will be confiscated and will not be returned. Any student who has material confiscated twice will be subject to discipline, including suspension. As for fighting, those involved even in a first offence will be subject to a one-week suspension, and this penalty could be increased (up to and including expulsion), depending on the severity of the fight and resulting injuries.

Raul Singh, like Gurbaj Singh Multani in the kirpan case, is an Orthodox Sikh. As a religious matter, he believes it is absolutely necessary for him to have a kirpan. Unlike Gurbaj Singh, he is absolutely unwilling to have the dagger sealed in cloth and sewn to the inside of his clothing. Yet, like Gurbaj Singh, he strongly believes that his religion forbids the use of the dagger as a weapon.

For its part, the school board is firm and clear as to its policy: The kirpan cannot be taken to school under any circumstances. It is a dagger, and the school board has a rule of zero tolerance.

The Issues

Under the Charter and its provision for religious freedom of belief, is the school board authorized to issue a zero-tolerance rule for the high schools subject to its regulations?

What is the effect of Raul Singh’s religious beliefs on the validity of the zero-tolerance rule?

Points to Consider

The Charter of Rights and Freedoms is part of the Constitution of Canada and, as such, it is the supreme law of the land.

Section 2(a) of the Charter provides that “everyone has ... freedom of conscience and religion.”

There is no question that Raul Singh wears a kirpan as a matter of religious belief.

Nor is there any question that the same religious belief compels Raul Singh to refuse to sew and hide the kirpan under his clothes.

If the zero-tolerance rule does violate Raul Singh’s right to freedom of religion, the school board may attempt to justify its action under section 1 of the Charter.

Such justification must demonstrate that the rule is sufficiently important to warrant limiting the right to freedom of religion.

And, the justification under section 1 of the Charter also requires that the means chosen by the school board be reasonably related (proportional) to the objective of the rule.

Discussion

The general facts of this section were alluded to by Justice Charron, who wrote the majority opinion in the kirpan case. The start point in analysis is that Raul Singh’s right to freedom of religion has been violated under section 2(a) of the Charter. He has a sincere religious belief regarding the kirpan that may or may not have been endorsed by his religion. But, whatever other Sikhs might believe concerning the kirpan, it does not take away from Raul Singh’s right to assert his belief.

The real issues for resolving the case centre on whether the school was justified in its actions under section 1 of the Charter. There are three aspects to a likely decision:

Was the objective of the zero-tolerance rule important relative to the proper objectives of the school board?

If the rule objective was proper, were the means chosen (the rule procedures) proportional? That is, did the means go beyond the legitimate thrust of the rule?

What should be the nature of the remedy, if any?

The burden of justifying the violation of Raul Singh’s right to freedom of religion is on the school board. In the kirpan case, Justice Charron stated:

The onus is on the [school board] to prove that, on a balance of probabilities, the infringement is reasonable and can be demonstrably justified in a free and democratic society. To this end, two requirements must be met. First, the legislative objective being pursued must be sufficiently important to warrant limiting a constitutional right. Next, the means chosen by the state authority must be proportional to the objective in question.”

We will examine each of these aspects.

Objective of the Zero-Tolerance Rule

The stated objective of the school board was to obtain safety in the high schools. This was the same objective of the school board in the kirpan case. And, it was an objective strong enough to override a claim to freedom of religion under the Charter. Justice Charron said in the kirpan case:

[The board’s] decision was motivated by [a pressing and substantial] objective, namely, to ensure an environment conducive to the development and learning of the students. This requires [the board] to ensure the safety of the students and the staff. This duty is at the core of the mandate entrusted to educational institutions. The appellant concedes that this objective is laudable and that it passes the first stage of the [section 1] test. The [school board] also submitted fairly detailed evidence consisting of affidavits from various stakeholders in the educational community explaining the importance of safety in schools and the upsurge in problems relating to weapons and violence in schools.

Clearly, the objective of ensuring safety in schools is sufficiently important to warrant overriding a constitutionally protected right or freedom.

Objective Defined

This hypothetical case presents an absolute rule. It is a rule of zero tolerance. No exceptions are allowed under the rule. The purpose of the rule is to approximate absolute safety. Justice Charron suggested in the kirpan case that such an objective might be beyond the scope of a school board’s legitimate objectives, taken by the Court as providing universal access to the public school system. In the kirpan case, Justice Charron said that the school board did not want to attempt absolute safety. It wanted to achieve reasonable safety. And, this was appropriate. The means used to achieve this objective could be measured. She stated:

It remains to be determined what level of safety the governing board was seeking to achieve by prohibiting the carrying of weapons and dangerous objects, and what degree of risk would accordingly be tolerated.... The possibilities range from a desire to ensure absolute safety to a total lack of concern for safety. Between these two extremes lies a concern to ensure a reasonable level of safety.

Although the parties did not present argument on the level of safety sought by the governing board, the issue was addressed by the intervener Canadian Human Rights Commission, which correctly stated that the standard that seems to be applied in schools is reasonable safety, not absolute safety. The application of a standard of absolute safety could result in the installation of metal detectors in schools, the prohibition of all potentially dangerous objects (such as scissors, compasses, baseball bats and table knives in the cafeteria) and permanent expulsion from the public school system of any student exhibiting violent behaviour. Apart from the fact that such a standard would be impossible to attain, it would compromise the objective of providing universal access to the public school system.

On the other hand, when the governing board [initially] approved the article in question, it was not seeking to establish a minimum standard of safety. As can be seen from the affidavits of certain stakeholders from the educational community, violence and weapons are not tolerated in schools, and students exhibiting violent or dangerous behaviour are punished. Such measures show that the objective is to attain a certain level of safety beyond a minimum threshold.

I therefore conclude that the level of safety chosen by the governing council and confirmed by the council of commissioners was reasonable safety. The objective of ensuring a reasonable level of safety in schools is without question a pressing and substantial one.

In this sense, the school board in the kirpan case acted properly. Its rule was intended to help establish reasonable safety.

What was said in the kirpan case could not be stated in this hypothetical case. In both cases, the general objective of safety in the schools was appropriate. However, in the hypothetical case, the rule was too inclusive relative to the legitimate objectives of the school board. The rule was designed to achieve absolute safety. This, the Court in the kirpan case suggested, was beyond the power of the school board in terms of the outer boundary that would be allowed by the Charter.

But, the school board rule, as applied in the kirpan case, failed the section 1 test of the Charter for another reason: The school board, which carried the burden of proof, did not show that its rule was crafted to minimally impair the religious rights of the student in the pursuit of reasonable school safety.

THE REMEDY

At the time of judgment in the kirpan case, the student no longer attended the school which had banned daggers. What remedy, then, was to be ordered? Justice Charron noted the power given the Court under section 24(1) of the Charter: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

The remedy ordered in the kirpan case was simply to declare the decision prohibiting the student from wearing his kirpan to be “null.”

What would be the probable outcome in this hypothetical situation? The student (or others similarly situated, if the case were brought as a class action) would be subject to the school board rule until the Court declared it void. But, in all likelihood, that would not be the end of the matter. The Court had declared that there is a zone for proper board action to provide for reasonable school safety. The school board would not be precluded from enacting such a rule — and, of course, having it tested under the conditions set by section 1 of the Charter.

Challenge Question

A Poll, Public Opinion, and the Charter

Q. Should public opinion be a factor in determining the outcome of a religious freedom question under the Canadian Charter of Rights and Freedoms?

After what we have called the kirpan case was decided, the Globe and Mail conducted an online poll. On March 3, 2006, it asked: “Do you agree with the Supreme Court decision permitting Sikh students to carry ceremonial daggers in school?” There were more than 20,000 responses. Of these, 5,372 agreed with the Court’s decision (26 percent). However, 15,460 disagreed with the Court’s ruling (74 percent).

At one level, the answer is quite straightforward. Courts are to be independent, and judges are to apply law to facts. That is part of what makes a society civilized. But, at another level, the question becomes more complex. We see ourselves as a democratic society. Parliament and provincial legislatures, within their areas of authority, are supreme. And, our legislators are responsive to the people. So, if the people give voice through their legislators that they do not like a particular rule of law as handed down by a court, then why can’t the legislature overturn that rule and declare, through law, a new rule? Why couldn’t provincial legislature simply declare as law: No student may carry any weapon, such as a dagger, regardless of that person’s religious beliefs?

The answer has two parts:

Government is not entirely free to declare and have enforced whatever it desires. Government is subject to the Charter of Rights and Freedoms, which is part of the Constitution of Canada and, as such, is the supreme law of the land. The Charter, in section 2(a), provides that everyone has the right to freedom of religion. It was that constitutional right that the Supreme Court of Canada was called upon to interpret in the kirpan case. The Court’s interpretation thus has become the supreme law of the land.

However, the same Charter does permit a legislature (either the Parliament or a provincial legislature) to declare that it will operate notwithstanding rights set out in sections 2 and 7 to 15. But, to do this, the legislature must be specific in its language and its intent. And, any such law will be in effect for only five years (unless the legislature earlier revokes it). Further, a legislature may “re-enact” the “notwithstanding law” at the end of the statutory period.

This is a legislative exception designed to be used sparingly by legislatures. Thus, as applied to the kirpan case, it is possible for a legislature to override the Supreme Court’s decision. But, this would have to be in the form of a new and a specific law that makes such an override clear. The new law, initially, would last for a maximum of five years, unless it were re-enacted. (These conditions are set out in section 33 of the Charter.)

Alberta: Driver’s Licences And Hutterite Concerns

Here the discussion centres not so much on the positive right to speak or to express oneself by dress. Rather, the discussion centres on the right to be left alone.

The religious convictions of Hutterites are deeply held. Their religion is central to their lives. For the most part, they live together in colonies. It is the colony (or commune) that holds property and assigns work. So far as possible, they live apart from larger communities.

While they live in a communal environment, the facts, agreed to by the government, are that the Hutterites are quite independent. They do not ask for help from “outsiders.”

To a considerable extent, Hutterite convictions are founded on the Ten Commandments. Their religion, started in Switzerland in the sixteenth century and initially rooted in Europe and Russia, is pacifist. In part, their refusal to join the armies of the Czar led to their persecution and flight to Canada and the United States. They established colonies in Alberta, Saskatchewan, and British Columbia, and also in Montana, Washington, and North and South Dakota. (According to census data, there were about 3,500 Hutterites resident in Alberta in 2001.)

An important part of the Hutterites’ belief system includes the Second Commandment, “Thou shalt not make unto thee any graven image.” To some Hutterites, this means no images of God. But, it has also been interpreted to include no taking of photographs or posing for them. The reasoning seems to be that humans are created in the image of God.

Driver’s Licences

For twenty-nine years, the government of Alberta allowed driver’s licences to be issued to resident Hutterites without any identifying photos.

For Hutterites, driving is not a recreational matter. Certain individuals are assigned work that may include driving. For example, drivers might be needed to go into the cities for supplies or to obtain medical services for other Hutterites, including children.

In 2003 the agency charged with auto licence registration issued new rules requiring photos of those licensed. Approximately two hundred and fifty Hutterites who held licences without photos at that time lost their exemption.

The agency explained the purpose of the compulsory photo requirement: It was designed to prevent identity theft in relation to auto licensing. The agency showed that identity theft was a growing problem. However, the agency could point to only a single case of identity theft in relation to licensing, and that did not involve a Hutterite.

Under the new regulation, photo identification was placed in a digital depository and retrieved to show whether the person photographed was indeed the person who obtained the licence. The retrieval was not foolproof, but it had a factual basis. The photo on the licence could be compared on a one-to-one basis with the photo on deposit, and it could be compared with those with similar features.

The agency was sensitive to the concerns and beliefs of the Hutterites. Before the regulation came into force, the agency and Hutterite representatives met. The agency made offers to partially shield the showing of any photographed Hutterite auto licencee. In part, this would have been done by storing the digital photo in the depository and not on the licence itself. The compromise was not acceptable to the Hutterites.

The Supreme Court Decides

The matter came before the Supreme Court of Canada. The issue was clear: Government, by law (regulation), had infringed upon the Hutterite freedom of conscience and religion. The Court had to decide whether that infringement, in the words of section 1 of the Charter, was a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

By a 4–3 vote, the Supreme Court ruled the regulation lawful under the Charter (Alberta v. Hutterian Brethren of Wilson Colony, [2009] Supreme Court of Canada Cases 37). Chief Justice McLachlin wrote the majority opinion, and Justice Abella wrote a lengthy dissent that also gave rise to other dissenting opinions endorsing her statement of principles.

The burden of the government, said the chief justice, was to show that the photo regulation was rationally connected to a “pressing and substantial goal” and that it minimally impaired the Hutterites’ freedom of religion. In this regard, the goal and the minimal impairment are to be balanced to ensure that the regulation is proportionate in its effects.

The chief justice said that the goal of the agency (mandatory photo identification) met a real concern, namely identity theft, and that it was a reasonable approach. It was not for the Court, she continued, to substitute its judgment as to the most reasonable approach for that of the administrative agency.

Section 1 of the Charter, the chief justice said, requires balancing the legitimate interests of the state against the encroached guaranteed freedom of religion of the Hutterites. She found the encroachment on the Hutterites to be minimal and the legitimate goal of the state (identity theft) to be substantial. She wrote:

The law has an important social goal — to maintain an effective driver’s licence scheme that minimizes the risk of fraud to citizens as a whole. This is not a goal that should lightly be sacrificed. The evidence supports the conclusion that the universal photo requirement addresses a pressing problem and will reduce the risk of identity-related fraud, when compared to a photo requirement that permits exceptions.

Against this important public benefit must be weighed the impact of the limit on the claimants’ religious rights. While the limit imposes costs in terms of money and inconvenience as the price of maintaining the religious practice of not submitting to photos, it does not deprive members of their ability to live in accordance with their beliefs. Its deleterious [hurtful] effects, while not trivial, fall at the less serious end of the scale.

Balancing the salutary [positive] and deleterious [harmful] effects of the law, I conclude that the impact of the limit on religious practice associated with the universal photo requirement for obtaining a driver’s licence, is proportionate.

I conclude that the limit on the Colony members’ freedom of religion imposed by the universal photo requirement for holders of driver’s licences has been shown to be justified under section 1 of the Charter. The goal of minimizing the risk of fraud associated with driver’s licences is pressing and substantial. The limit is rationally connected to the goal. The limit impairs the right as little as reasonably possible in order to achieve the goal; the only alternative proposed would significantly compromise the goal of minimizing the risk. Finally, the measure is proportionate in terms of effects: the positive effects associated with the limit are significant, while the impact on the claimants, while not trivial, does not deprive them of the ability to follow their religious convictions.

Dissent of Justice Abella

While Justice Abella, in a lengthy dissent, accepted the legitimacy of the photo identification goal, she did question the extent of its importance. She wrote:

Alberta acknowledged that it is not attempting to justify the photo requirement on the basis that it allows for quick and efficient driver identification at the side of the road. The exemption to the photograph requirement was in place for 29 years without any demonstrably negative effects on roadside enforcement.

Instead, Alberta stated that the purpose of the mandatory photo requirement was to ensure that every individual who has applied for a licence is represented in the Province’s facial recognition database. This database helps prevent an individual from applying for a licence in another person’s name. Driver’s licences are a widely accepted form of identification. False licences can be used to gain other fraudulent documentation. The objective, therefore, is to protect the integrity of the licensing system and its consequential benefit is the minimization of the risk of identity theft.

The majority rejects the Colony’s alternative proposal of a photoless licence stamped with an indication that it not be used for identification purposes, on the grounds that “the only way to reduce that risk [of misusing driver’s licences for identity theft] as much as possible is through a universal photo requirement” and “the alternative proposed by the claimants would significantly compromise the government’s objective.” ... But there is no cogent or persuasive evidence of any such dramatic interference with the government’s objective....

The positive impact of the mandatory photo requirement and the use of facial recognition technology is that it is a way to help ensure that individuals will not be able to commit identity theft. But the facial recognition technology is hardly fool-proof. Joseph Mark Pendleton, Director of the Special Investigations Unit of the Alberta Ministry of Government Services, acknowledged in his affidavit on behalf of the Government of Alberta, that “facial recognition software is not so advanced that it can make a definitive determination of whether two photographs are of the same person.” The software merely narrows down potentially similar faces to a manageable number. A human investigator must still “eyeball” the pictures to determine if they are the same person.

There is, in fact, no evidence from the government to suggest that the Condition Code G licences, in place for 29 years as an exemption to the photo requirement, caused any harm at all to the integrity of the licensing system. As a result, there is no basis for determining why the exemption is no longer feasible, or so dramatically obstructs the government’s objective that it cannot be re-instated....

700,000 Albertans are without a driver’s licence. That means that 700,000 Albertans have no photograph in the system that can be checked by facial recognition technology. While adding approximately 250 licence holders to the database will reduce some opportunity for identity theft, it is hard to see how it will make a significant impact on preventing it when there are already several hundred thousand unlicenced and therefore unphotographed Albertans. Since there are so many others who are not in the database, the benefit of adding the photographs of the few Hutterites who wish to drive would be marginal.

It is worth noting too that in Alberta, numerous documents are used for identity purposes, including birth certificates, social insurance cards and health cards — not all of which include a photograph. Nor has Alberta thought it necessary to introduce, for example, a universal identity card to prevent identity theft. This suggests that the risk is not sufficiently compelling to justify universality.

The fact that Alberta is seemingly unengaged by the impact on identity theft of over 700,000 Albertans being without a driver’s licence makes it difficult to understand why it feels that the system cannot tolerate 250 or so more exemptions.

The harm to the religious rights of the Hutterites weighs more heavily. The majority assesses the Wilson Colony members’ freedom of religion as being a choice between having their picture taken or not having a driver’s licence which may have collateral effects on their way of life. This, with respect, is not a meaningful choice for the Hutterites.

To suggest, as the majority does, that the deleterious effects are minor because the Colony members could simply arrange for third party transportation, fails to appreciate the significance of their self-sufficiency to the autonomous integrity of their religious community. When significant sacrifices have to be made to practise one’s religion in the face of a state imposed burden, the choice to practise one’s religion is no longer uncoerced.

The mandatory photo requirement is a form of indirect coercion that places the Wilson Colony members in the untenable position of having to choose between compliance with their religious beliefs or giving up the self-sufficiency of their community, a community that has historically preserved its religious autonomy through its communal independence.

The burden under section 1 is squarely on the government. That is where it should rigorously remain, without diminution for any reason. The majority’s approach — making the right dependent on a formalistic distinction and characterization of the nature of the law — creates, even if inadvertently, a legal hierarchy attracting diminishing levels of scrutiny. This not only imperils and contradicts human rights jurisprudence, it risks presumptively shrinking the plenitude of what is captured by freedom of religion in s. 2(a) of the Charter by tethering its scope to an artificial stratum of government action. (See McLachlin C.J. “Freedom of Religion and the Rule of Law: A Canadian Perspective” in Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (2004), 12.)

The harm to the Hutterites’ Charter right is substantial and easily ascertainable, but, as previously noted, the benefit of requiring the Hutterites to be photographed for the purposes of reducing identity theft, is not. Hundreds of thousands of Albertans have no driver’s licence and their photographs, therefore, are not available in the facial recognition database, to help minimize identity theft. It is not clear to me how having approximately 250 additional Hutterites’ photographs in the database will be of any significance in enhancing the government’s objective, compared to the seriousness of the intrusion into the Hutterites’ religious autonomy.

What we are left with is the desire to protect Albertans from the risks and costs associated with identity theft through a mandatory photo requirement, versus the cost to the Hutterites, religious and democratic, of not having their constitutional rights respected. Here, the constitutional right is significantly impaired; the “costs” to the public only slightly so, if at all.

Given the disproportion in this case between the harmful effects of the mandatory photo requirement on religious freedom, compared to the minimal salutary effects of requiring photographs from the Hutterites, the government has not discharged its burden of demonstrating that the infringement is justified under s. 1. This makes the mandatory photograph requirement for driver’s licences, in the absence of the availability of an exemption on religious grounds, inconsistent with section 2(a) of the Charter.

I would therefore dismiss the appeal, but would suspend a declaration of invalidity for one year to give Alberta an opportunity to fashion a responsive amendment.

(Globe and Mail, July 27, 2009; Globe and Mail, August 15, 2009; Globe and Mail, August 21, 2009)

Prayer Space for Students

The Muslim faith requires its followers to pray five times a day for five minutes, at intervals of roughly two to three hours. Students at two Quebec universities, unhappy with the lack of appropriate prayer spaces on campus, took action to remedy the situation.

In 2003 a $1.1 million complaint was filed on behalf of 113 Muslim students at Montreal’s Ecole de technologie supérieure (ETS), the engineering school affiliated with the University of Quebec. Students had complained that they were forced to kneel on prayer carpets in crowded stairwells because the school, citing its in-house policy of excluding religious groups, was unwilling to provide a separate prayer room.

On March 22, 2006, the Quebec Human Rights Commission ruled that the school was obligated to “allow students of the Muslim faith to pray, on a regular basis, in conditions that respect their right to the safeguard of their dignity.” ETS was given sixty days to remedy the problem. Marc-André Dowd, interim president of the commission, pointed out that other universities had created multi-faith or meditation rooms to meet the needs of their growing Muslim student bodies. Setting aside empty classrooms was suggested.

Five days later, ETS announced that it would provide Muslim students with a schedule of fifty-six classrooms available throughout the day to use as prayer space (Globe and Mail, March 23, 2006).

References and Further Reading * Cited by the Supreme Court of Canada.

Bailey, Sue. “Hutterites Lose Court Case Over Photos.” Globe and Mail, July 27, 2009.

Barak, Aharon. 2007. “Proportional Effect: The Israeli Experience.” University of Toronto Law Journal 57: 369.*

Blackwell, Richard. “Kirpan Ban Overturned.” Globe and Mail, March 3, 2006.

Cameron, Jamie. 1997. “The Past, Present, and Future of Expressive Freedom Under the Charter.” Osgoode Hall Law Journal 35: 1.*

Choudhry, Sujit. 2006. “So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis Under the Canadian Charter’s Section 1.” Supreme Court Law Review (2d series) 34: 501.*

Davis, Morris and Joseph F. Krauter. 1971. The Other Canadians: Profiles of Six Minorities. Toronto: Methuen.*

Eissen, Marc-André. 1993. “The Principle of Proportionality in the Case-Law of the European Court of Human Rights.” In R. St. J. Macdonald, F. Matscher and H. Petzold, eds., The European System for the Protection of Human Rights. Dordrecht, The Netherlands: Martinus Nijhoff.*

Globe and Mail.“No Real Risk of Identity Theft.” August 15, 2009.

Grimm, Dieter. 2007. “Proportionality in Canadian and German Constitutional Jurisprudence.” University of Toronto Law Journal 57: 383.*

Makin, Kirk. “Top Court to Weigh School Ban on Kirpan.” Globe and Mail, April 12, 2005.

McLachlin, Beverley M. (Chief Justice Supreme Court of Canada). 2004. “Freedom of Religion and the Rule of Law: A Canadian Perspective.” In Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy. Montreal and Kingston: McGill-Queen’s University Press.*

Nussbaum, Martha. 2008. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books.*

Pennings, Ray. “The Hutterite Driver’s Licence Ruling Misses the Big Picture.” Globe and Mail, August 21, 2009.

Peritz, Ingrid. “Find Prayer Space, School Told.” Globe and Mail, March 23, 2006.

Taylor, Charles. 1995. Philosophical Arguments. Cambridge, MA: Harvard University Press.*

Webber, Jeremy. 2006. “The Irreducibly Religious Content of Freedom of Religion.” In Avigail Eisenberg, ed., Diversity and Equality: The Changing Framework of Freedom in Canada. Vancouver: UBC Press.*

_____. 2008. “Understanding the Religion in Freedom of Religion.” In Peter Cane, Carolyn Evans and Zoë Robinson, eds., Law and Religion in Theoretical and Historical Context. Cambridge, UK: Cambridge University Press.*

Chapter 5

Indecency Defined: The Question of Harm

Section 2(b) of the Charter relates to freedom of expression. We will now focus on the kind of expression that the criminal law long has condemned: indecency.

Among the questions raised in this chapter are:

Under the Criminal Code, does morality determine “acts of indecency”?

Is a “community standard of tolerance” an objective standard?

How is a “risk of harm to the community” proved?

What is “indecency” or “acts of indecency” under the Criminal Code? Under section 210(1) of the Criminal Code, the “practice of acts of indecency” is made an offence punishable by two years in prison. The offence, under this provision, relates to keeping a “common bawdy-house.” This is defined as a place kept, occupied, or resorted to “by one or more persons for the purpose of prostitution or the practice of acts of indecency” (section 197(1) of the Criminal Code).

Parliament, however, did not define the “practice of acts of indecency.” Without Parliamentary definition written into law, giving definition was left to the courts because, in the final analysis, the courts must pass upon the law in determining guilt or innocence. It is a task that Chief Justice McLachlin of the Supreme Court of Canada has called “notoriously difficult.”

The difficulty is a result of judges having only past decisions rooted in the principle of community tolerance to guide them. In other words, how would the community, as a whole, tolerate other Canadians engaging in the questioned acts? This introduced a large measure of “subjectivity” or value judgment by each judge.

In The Queen v. Labaye, [2005] Supreme Court Cases 728, the Supreme Court of Canada re-examined the community tolerance test for determining indecency under section 210(1) of the Criminal Code. The Court, in a 7–2 decision, adopted a different test for deciding whether an act is indecent. Chief Justice McLachlin spoke for the Court majority. Justices Michel Bastarache and Louis LeBel dissented in an opinion written by Justice Bastarache.

The Queen v. Labaye: The Majority Opinion

Chief Justice McLachlin, in an opening statement for the Court majority in the Labaye case, gave the context for discussion. She wrote:

Defining indecency under the Criminal Code is a notoriously difficult enterprise. The Criminal Code offers no assistance, leaving the task to judges. The test developed by the cases has evolved from one based largely on subjective considerations, to one emphasizing the need for objective criteria, based on harm.

This heightened emphasis on objective criteria rests on the principle that crimes should be defined in a way that affords citizens, police and the courts a clear idea of what acts are prohibited.... We generally convict and imprison people only where it is established beyond a reasonable doubt that they have violated objectively defined norms. Crimes relating to public indecency are no exception.

On the facts and the law, the majority opinion in the Labaye case differed sharply from the dissent of Justices Bastarache and LeBel. We will set out the facts, as stated by the majority, and leave it to the reader to compare those facts with the dissenting view. We will do the same in relation to the majority view of the law. Here, however, we will note the majority conclusions, arrived at after analysis, that the status of the law was both ambiguous and called upon judges to use much subjective judgment.

More important, in our view, is the fundamental decision of the Supreme Court to change direction — to set a new test for defining indecency under section 210(1) of the Criminal Code. We will give the larger portion of this section over to the statement and explanation of that test, as given by Chief Justice McLachlin, speaking for a majority of the Court.

The Facts of the Case

The accused operated a club in Montreal called l’Orage. The purpose of the club was to permit couples and single people to meet each other for group sex, and that meant explicit sex in certain designated and ostensibly private areas of the club. Only members and their guests were admitted to the club. Members paid an annual membership fee.

L’Orage had three floors. The first floor was occupied by a bar, the second by a salon, and the third by what was called the “apartment” of the accused. A doorman controlled the main door of the club, to ensure that only members and their guests entered. Two doors separated access to the third floor apartment from the rest of the club. One was marked “Privé” (“Private”) and the other was locked with a numeric key pad.

Members of the club were supplied with the appropriate code and permitted to access the third floor apartment. This was the only place where group sex took place. A number of mattresses were scattered about the floor of the apartment. There, people engaged in a variety of sexual acts. There was participation by members in some of the acts, and also observation by members.

Entry to the club and participation in the activities were voluntary. No one was forced to do anything or watch anything. No one was paid for sex. While men considerably outnumbered women on the occasions when the police visited, there was no suggestion that any of the women were there involuntarily or that they did not willingly engage in the acts of group sex.

Thus, among the important findings, as stated by Chief Justice McLachlin, were:

The questioned sexual activities were private. They were not open to the public.

Those who participated in these activities, either actively or as spectators, did so voluntarily.

No money, as such, was paid for this member participation.

The trial court, following hearings, ruled that the accused was guilty of indecency within the meaning of section 210(1) of the Criminal Code. The judge stated that, in fact, the acts occurred in a public place, as defined by the Criminal Code, because the public had a right of access, either by membership or invitation. And, she said, the sexual practices fell below the Canadian community standard of tolerance. The conduct of those participating, she ruled, was calculated to induce anti-social behaviour in disregard of moral values, and such conduct raised the risk of sexually transmitted disease.

A majority of the Quebec Court of Appeal upheld the conviction. In the view of the court majority, the voluntary character of member and guest participation did not diminish the “resulting degradation, loss of integrity and self-respect.”

However, Justice Michel Proulx dissented, arguing:

Even if the establishment was a public place, as defined in the Criminal Code, members of the club did not perform the sexual acts in open public view, but in a context of relative privacy. Entrants were screened and informed. All the participants retained their full autonomy. The sexual exchanges they participated in reflected their personal choice and view of sexuality. Since there was no meaningful distinction between participants and observers, the presence of observers was not relevant for assessing the publicly indecent character of the activities. Moreover, there was no social harm comparable to ... where the payment of women for sexual services led to an inference of exploitation.

The Supreme Court allowed the appeal and, in a 7–2 decision, it set aside the conviction.

The Status of the Law: A Search for Objectivity

In the Labaye case, the chief justice spoke of a movement away from the personal judgment of a court as to whether an act was indecent under the criminal law. That movement was toward a more objective standard.

At its start, under English common law — that is, law as stated by the courts and followed by them as precedent —- the standard for obscenity was whether material would tend to deprave and corrupt other members of society. But, Chief Justice McLachlin said: “Depravity and corruption vary with the eye of the beholder, and the [early English] test proved difficult to apply in an objective fashion. Convictions often depended more on the idiosyncrasies and the subjective moral views of the judge or jurors than objective criteria of what might deprave or corrupt. Nevertheless, the [English] test remained in place for almost a century.”

In 1959 the Canadian Parliament introduced a new “undue exploitation of sex” test for obscene materials, now section 163(8) of the Criminal Code. In considering this test, the Supreme Court emphasized the failings of the previous test and the need for new criteria “which have some certainty of meaning and are capable of objective application and which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether judge or jury” (Brodie v. The Queen, [1962] Supreme Court of Canada Reports 681).

However, said Chief Justice McLachlin, the goal of objectivity was not reached. She stated:

Borrowing on decisions from Australia and New Zealand emphasizing the foundation of criminal legislation on obscenity and indecency in societal norms, the Court adopted a test based on the community standard of tolerance. On its face, the test was objective, requiring the trier of fact to determine what the community would tolerate.

Yet once again, in practice it proved difficult to apply in an objective fashion. How does one determine what the “community” would tolerate were it aware of the conduct or material? In a diverse, pluralistic society whose members hold divergent views, who is the “community”? And how can one objectively determine what the community, if one could define it, would tolerate, in the absence of evidence that community knew of and considered the conduct in question?

In practice, once again, the test tended to function as a proxy [means] for the personal views of expert witnesses, judges and jurors. In the end, the question often came down to what they, as individual members of the community, would tolerate. Judges and jurors were unlikely, human nature being what it is, to see themselves and their beliefs as intolerant. It was far more likely that they would see themselves as reasonable, representative members of the community. The chances of a judge or juror saying “I view this conduct as indecent but I set that view aside because it is intolerant” were remote indeed. The result was that despite its superficial objectivity, the community standard of tolerance test remained highly subjective in application.

In 1985 the Supreme Court continued the search for objectivity by introducing a two-part definition of community standards of tolerance in Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 Supreme Court Reports 494. The first way to establish obscenity (undue exploitation of sex) was to show that the material violated the norm of tolerance of what Canadians would permit others, whose views they did not share, to do or see. The second was to show that the material would have a harmful effect on others in society. The Towne Cinema case marked the first clear statement of the relationship between obscenity and harm in Canadian law, and represented the beginning of a shift from a community standards test to a harm-based test.

The shift to a harm-based basis of reasoning was completed by the Supreme Court’s decisions in The Queen v. Butler, [1992] 1 Supreme Court of Canada Reports 452, and Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 Supreme Court of Canada Reports 1120. In the Butler case, the two-part test for obscenity of the Towne Cinema case was fused into a single test in which the community standard of tolerance was determined by reference to the risk of harm flowing from the questioned conduct.

The Court in the Little Sisters case confirmed that harm is an essential ingredient of obscenity. As Justice Binnie stated: “The phrase ‘degrading and dehumanizing’ in Butler is qualified immediately by the words ‘if the risk of harm is substantial.’ This makes it clear that not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene. The material must also create a substantial risk of harm which exceeds the community’s tolerance.”

Chief Justice McLachlin said that the Labaye case allowed the Supreme Court to provide “further definition” of the “harm” principle. She wrote:

Grounding criminal indecency in harm represents an important advance in this difficult area of the law. Harm or significant risk of harm is easier to prove than a community standard. Moreover, the requirement of a risk of harm incompatible with the proper functioning of society brings this area of the law into step with the vast majority of criminal offences, which are based on the need to protect society from harm.

However, it is not always clear precisely how the harm test for indecency applies in particular circumstances. New cases have raised questions as to the nature and degree of harm sufficient to establish indecency. Further definition is required in order to resolve cases like this, and to permit individuals to conduct themselves within the law and the police and courts to enforce the criminal sanction in an objective, fair way.

The Harm Test

The chief justice set out two general requirements necessary for a finding of indecency:

The harm must be of the kind “recognized in [the Canadian constitution] or similar fundamental laws.” Put somewhat differently, the opposite side of “harm” relates to values that the Constitution or other fundamental laws are designed to protect.

An expression of such values can be found in the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada. For example, section 7 of the Charter provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” This is, in part, a constitutional expression going to the dignity of the individual. Similarly, human rights codes, both at the federal and provincial levels, tend to re-enforce such rights by prohibiting discrimination on the bases of race, religion, gender, and disability — among other grounds.

The chief justice suggested that the rights and values noted are those “formally recognized” by Canadian law. As such, the criminal law, such as those relating to indecency, might directly enforce those rights and values.

But, this is only the first step. It is concerned with the nature of the harm. The chief justice said: “The first step asks whether the Crown has established a harm or significant risk of harm to others that is grounded in norms which our society has formally recognized in its Constitution or similar fundamental laws.”

We come now to the second step in the Court’s more detailed definition going to objectivity. This step is concerned with the degree of harm. In the words of Chief Justice McLachlin: “It asks whether the harm in its degree is incompatible with the proper functioning of society.”

In the Labaye case, the Court went to some length to provide detail for both elements. In doing so it noted that each element must be proved beyond reasonable doubt before an act can be considered indecent under the Criminal Code.

The Nature of Harm

The Court dealt first with the nature of harm. The chief justice stated:

Three types of harm have thus far emerged from the jurisprudence as being capable of supporting a finding of indecency: (1) harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; and (3) harm to individuals participating in the conduct.

Each of these types of harm is grounded in values recognized by our Constitution and similar fundamental laws. The list is not closed; other types of harm may be shown in the future to meet the standards for criminality established.... But thus far, these are the types of harm recognized by the cases.

The second source of harm, said the chief justice, is the kind that “predisposes others to anti-social acts or attitudes, such as the physical or mental mistreatment of women by men or, less likely, the reverse. She wrote:

This source of harm is not confined to explicit invitations or exhortations to commit anti-social acts.... The inquiry embraces attitudinal harm. Conduct or material that perpetuates negative and demeaning images of humanity is likely to undermine respect for members of the targeted groups and hence to predispose others to act in an anti-social manner towards them. Such conduct may violate formally recognized societal norms, like the equality and dignity of all human beings, which is protected by the Canadian Charter of Rights and Freedoms and similar fundamental laws such as the provincial human rights codes.

Because this source of harm involves members of the public being exposed to the conduct or material, here, too [as in the first type of harm], it is relevant to inquire whether the conduct is private or public. This type of harm can arise only if members of the public may be exposed to the conduct or material in question.

A third source of harm, physical and/or psychological, is that affecting participating individuals. The chief justice stated:

Sexual activity is a positive source of human expression, fulfilment and pleasure. But some kinds of sexual activity may harm those involved. Women may be forced into prostitution or other aspects of the sex trade. They may be the objects of physical and psychological assault. Sometimes they may be seriously hurt or even killed. Similar harms may be perpetrated on children and men. Sexual conduct that risks this sort of harm may violate society’s declared norms in a way that is incompatible with the proper functioning of society, and hence meet the … test for indecent conduct under the Criminal Code.

The consent of the participant will generally be significant in considering whether this type of harm is established. However, consent may be more apparent than real. Courts must always be on the lookout for the reality of victimization. Where other aspects of debased treatment are clear, harm to participating individuals may be established despite apparent consent.

Unlike the previous types of harm by confrontation and by inculcation [instruction], the third type of harm is only minimally dependent on whether the conduct is private or public, since its focus is not on harm to society or members of society, but on individuals involved in the acts. Harm of this type is not dependent on public viewing, and may occur in a private room of an establishment, so long as the minimal element of publicity is satisfied to bring it within the scope of the indecency provisions, by showing it to be a place kept for the purpose of practising such acts, for instance. In the final analysis, the critical issue is not how members of the public might be affected, but how the participant is affected [emphasis added].

The Degree of Harm

We come now to the degree of harm. The harm, we will assume, fits under one of the three classes set out by Chief Justice McLachlin. For there to be a finding of indecency, there must be the necessary extent or degree of harm. Chief Justice McLachlin stated:

At this stage, the task is to examine the degree of the harm to determine whether it is incompatible with the proper functioning of society. The threshold is high. It proclaims that as members of a diverse society, we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be objectively shown beyond a reasonable doubt to interfere with the proper functioning of society.

Only if the impact of the acts in degree of harm poses a real risk of damaging the autonomy and liberty of members of the public, judged by contemporary standards, can indecency be established.

Incompatibility with the proper functioning of society is more than a test of tolerance. The question is not what individuals or the community think about the conduct, but whether permitting it engages a harm that threatens the basic functioning of our society. This ensures in part that the harm be related to a formally recognized value, at step one. But beyond this it must be clear beyond a reasonable doubt that the conduct, not only by its nature but also in degree, rises to the level of threatening the proper functioning of our society.

Whether it does so must be determined by reference to the values engaged by the particular kind of harm at stake. If the harm is based on the threat to autonomy and liberty arising from unwanted confrontation by a particular kind of sexual conduct, for example, the Crown must establish a real risk that the way people live will be significantly and adversely affected by the conduct. The number of people unwillingly exposed to the conduct and the circumstances in which they are exposed to it are critical under this head of harm. If the only people involved in or observing the conduct were willing participants, indecency on the basis of this harm will not be made out.

If the harm is based on predisposing others to anti-social behaviour, a real risk that the conduct will have this effect must be proved. Vague generalizations that the sexual conduct at issue will lead to attitudinal changes and hence anti-social behaviour will not suffice. The causal link between images of sexuality and anti-social behaviour cannot be assumed. Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear. What is required is proof of links, first between the sexual conduct at issue and the formation of negative attitudes, and second between those attitudes and real risk of anti-social behaviour.

Similarly, if the harm is based on physical or psychological injury to participants, it must again be shown that the harm has occurred or that there is a real risk that this will occur. Witnesses may testify as to actual harm. Expert witnesses may give evidence on the risks of potential harm. In considering psychological harm, care must be taken to avoid substituting disgust for the conduct involved, for proof of harm to the participants. In the case of vulnerable participants, it may be easier to infer psychological harm than in cases where participants operate on an equal and autonomous basis.

These are matters that can and should be established by evidence, as a general rule. When the test was the community standard of tolerance, it could be argued that judges or jurors were in a position to gauge what the community would tolerate from their own experience in the community. But a test of harm or significant risk of harm incompatible with the proper functioning of society demands more. The judge and jurors are generally unlikely to be able to gauge the risk and impact of the harm, without assistance from expert witnesses. To be sure, there may be obvious cases where no one could argue that the conduct proved in evidence is compatible with the proper functioning of society, obviating the need for an expert witness.

To kill in the course of sexual conduct, to take an obvious example, would on its face be repugnant to our law and the proper functioning of our society. But in most cases, expert evidence will be required to establish that the nature and degree of the harm makes it incompatible with the proper functioning of society. In every case, a conviction must be based on evidence establishing beyond a reasonable doubt actual harm or a significant risk of actual harm. The focus on evidence helps to render the inquiry more objective. It does not, however, transform the entire inquiry into a pure question of fact. A finding of indecency requires the application of a legal standard to the facts and context surrounding the impugned conduct. It is this legal standard that the harm-based test seeks to articulate.

Where actual harm is not established and the Crown is relying on risk, the test of incompatibility with the proper functioning of society requires the Crown to establish a significant risk. Risk is a relative concept. The more extreme the nature of the harm, the lower the degree of risk that may be required to permit use of the ultimate sanction of criminal law. Sometimes, a small risk can be said to be incompatible with the proper functioning of society. For example, the risk of a terrorist attack, although small, might be so devastating in potential impact that using the criminal law to counter the risk might be appropriate. However, in most cases, the nature of the harm engendered by sexual conduct will require at least a probability that the risk will develop to justify convicting and imprisoning those engaged in or facilitating the conduct.

Applying the Test

The Court majority in The Queen v. Labaye reviewed the three types of harm spelled out in the “test.” It found, on the facts, that none of the three types of harm occurred. We will state the Court’s findings in detail:

The sexual acts at issue were conducted on the third floor of a private club, behind doors marked ”Privé” and accessed only by persons in possession of the proper numerical code. The evidence establishes that a number of steps were taken to ensure that members of the public who might find the conduct inappropriate did not see the activities. Pre-membership interviews were conducted to advise of the nature of the activities and screen out persons not sharing the same interests. Only members and guests were admitted to the premises. A doorman controlled access to the principal door.

On these facts, none of the kinds of harm discussed above was established. The autonomy and liberty of members of the public was not affected by unwanted confrontation with the sexual conduct in question. On the evidence, only those already disposed to this sort of sexual activity were allowed to participate and watch.

Nor was there evidence of the second type of harm, the harm of predisposing people to anti-social acts or attitudes. Unlike the material at issue in Butler, which perpetuated abusive and humiliating stereotypes of women as objects of sexual gratification, there is no evidence of anti-social attitudes toward women, or for that matter men. No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others. The fact that l’Orage is a commercial establishment does not in itself render the sexual activities taking place there commercial in nature. Members do not pay a fee and check consent at the door; the membership fee buys access to a club where members can meet and engage in consensual activities with other individuals who have similar sexual interests. The case proceeded on the uncontested premise that all participation was on a voluntary and equal basis.

Finally, there is no evidence of the third type of harm — physical or psychological harm to persons participating. The only possible danger to participants on the evidence was the risk of catching a sexually transmitted disease. However, this must be discounted as a factor because, as discussed above, it is conceptually and causally unrelated to indecency.

As stated above, the categories of harm are not closed; in a future case other different harms may be alleged as a basis for criminal indecency. However, no other harms are raised by the evidence in this case. All that is raised, in the final analysis, is the assessment that the conduct amounted to “an orgy” and that Canadian society does not tolerate orgies.... This reasoning erroneously harks back to the community standard of tolerance test, which has been replaced, as discussed, by the harm-based test....

I conclude that the evidence provides no basis for concluding that the sexual conduct at issue harmed individuals or society. Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society. The Crown failed to establish this essential element of the offence. The Crown’s case must therefore fail. The majority of the Court of Appeal erred, with respect, in applying an essentially subjective community standard of tolerance test and failing to apply the harm-based test.

The Court saw no need to examine the second part of the harm-based test, namely the question going to the degree of harm.

Summary of the Test under The Queen v. Labaye

Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:

By its nature, the conduct challenged causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value in the Constitution or similar fundamental laws by, for example:

(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or

(b) predisposing others to anti-social behaviour; or

(c) physically or psychologically harming persons involved in the conduct.

That the harm or risk of harm is of a degree that conflicts with the proper functioning of society.

The categories of harm in the first requirement are not closed, nor is any one of the listed categories in itself a necessary part of the definition of harm. For example, predisposition to anti-social behaviour is only one illustration of the type of harm that undermines or threatens to undermine one of society’s formally recognized values.

This test, applied objectively and on the basis of evidence in successive cases as they arise, is directed to stating legal standards that, as Chief Justice Mclachlin wrote: “enhance the ability of persons engaged in or facilitating sexual activities to [know] the boundary between non-criminal conduct and criminal conduct. In this way, the basic requirements of the criminal law of fair notice to potential offenders and clear enforcement standards to police will, it is hoped, be satisfied.”

Definition — Morality or Law?

Question: Are “acts of indecency” defined by morality or law in terms of interpreting the Criminal Code?

Answer: The Court majority in the Labaye case made it clear that courts are to look to the law in giving meaning to “acts of indecency,” though this was not to deny a relationship between the two. Chief Justice McLachlin, for the Court, stated:

Indecency has two meanings, one moral and one legal. Our concern is not with the moral aspect of indecency, but with the legal. The moral and legal aspects of the concept are, of course, related. Historically, the legal concepts of indecency and obscenity, as applied to conduct and publications, respectively, have been inspired and informed by the moral views of the community.

But over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices. This led to a legal norm of objectively ascertainable harm instead of subjective disapproval.

Another View: The Dissent

As noted, Justices Bastarache and LeBel dissented in the Labaye case. Justice Bastarache, writing for the dissent, argued that social or public morality of the entire Canadian community does have a direct role to play in determining whether an act is indecent within the meaning of the Criminal Code. It impacts directly on defining the applicable standard of tolerance. He wrote:

Nonetheless, where indecency is concerned, place and context are relevant to the establishment of the applicable limits when assessing certain sexual acts and their conformity to the standards of tolerance of the Canadian community. By reason of the nature of the standard of tolerance, applying it necessarily entails a choice of values that relate to social or public morality and are recognized by the entire Canadian community as minimum, but mandatory, standards.

The standard of tolerance does not impose a morality based on particular religious beliefs or particular ideologies. It implements a social morality that is the product of values characteristic of the entire community. These values generally reflect a social consensus that manifests itself through, for example, a concern for ... the dignity of individuals and their autonomy, potential for development and fundamental equality.

What must be done is not, therefore, to choose the preferences of a particular social group and impose them on others. Rather, it is necessary to establish the degree of tolerance of the majority of the Canadian community as a whole toward sexual acts, taking their context, including the place where they occur, into account. The test for indecency thus remains sufficiently objective, because it is based on a social consensus among Canadians as to what is acceptable in terms of sexual practices.”

You Be the Judge

Public View: Obscenity?

The case that follows was suggested in The Queen v. Labaye.

The Facts

Bert Johnson owns a bar near a solid “blue collar” residential neighbourhood. Business has been slow but he believes that he has a way to increase profits. He will advertise the bar as one where adults may take off their clothes, and they may touch one another — assuming consent has been given. Force and intimidation will be expressly forbidden, and these rules will be fully enforced.

But, what will make his bar “unique,” in Johnson’s view, is that a wide-screen video will display — without sound — what takes place in the bar. Johnson will advertise: “Here’s your chance to be outlandish.” In fact, to test public interest, Johnson has gone ahead with the wide-screen video, and some of the scenes shown involve nudity and fondling among patrons. The videos are projected in a large window of the bar for passersby to see.

There are a number of houses of worship close to Johnson’s bar. All the neighbourhood ministers and clerics (numbering about twenty), strongly urged on by their parishioners, want an end to the public display of the bar’s wide-screen video.

The police and Crown have been quick to respond. Charges have been laid against Johnson and his business, directed specifically at the wide-screen public display video. Those charges have been brought under section 163(8) of the Criminal Code which provides: “For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.”

The Issue

Is the public display of the wide-screen videos of nudity and sexual fondling taking place inside the bar obscene within the meaning of section 163(8) of the Criminal Code in that it is an “undue exploitation of sex”?

Points to Consider

For purposes of the Criminal Code, obscenity and indecency are treated as having the same meaning.

In a well-structured survey, the view of the ministers and clerics was found accurately to reflect that of their colleagues nationally.

The same survey found that, if the community is defined as the neighbourhood around Johnson’s bar or even the city where it is located, an overwhelming number of residents find the publicly displayed videos obscene.

The “values” that laws against obscenity or indecency are intended to uphold, according to the decision in the Labaye case, are fundamental to Canadian society as a whole.

Such “fundamental” values include: autonomy, liberty, equality, and human dignity.

Discussion

The chief justice, speaking for the Court majority in The Queen v. Labaye, suggested that the law against obscenity in the kind of fact situation presented would not be allowed. This was the first of three types of harm such laws are designed to prohibit: “harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct.” Those who walked by Johnson’s bar or lived in the neighbourhood have important rights, even fundamental rights, the chief justice seemed to say. An invasion of these rights would reduce their “quality of life.”

The chief justice stated:

First is the harm of public confrontation with unacceptable and inappropriate conduct. One reason for criminalizing indecent acts and displays is to protect the public from being confronted with acts and material that reduce their quality of life. Indecent acts are banned because they subject the public to unwanted confrontation with inappropriate conduct.

This harm is conceptually akin to nuisance. Nevertheless, to call this eyesore the basis of criminalization of indecent acts is to trivialize the harm. The harm is not the aesthetic harm of a less attractive community, but the loss of autonomy and liberty that public indecency may impose on individuals in society, as they seek to avoid confrontation with acts they find offensive and unacceptable. The value or interest protected is the autonomy and liberty of members of the public, to live within a zone that is free from conduct that deeply offends them.

We live in an age when sexual images, some subtle and some not so subtle, are widely dispersed throughout our public space. However, this does not negate the fact that even in our emancipated society, there may be some kinds of sexual conduct the public display of which seriously impairs the livability of the environment and significantly constrains autonomy. Sexual relations are an intensely personal, religious and age-sensitive matter.

People’s autonomy and enjoyment of life can be deeply affected by being unavoidably confronted with debased public sexual displays. Even when avoidance is possible, the result may be diminished freedom to go where they wish or take their children where they want. Sexual conduct and material that presents a risk of seriously curtailing people’s autonomy and liberty may justifiably be restricted. The loss of autonomy and liberty to ordinary people by in-your-face indecency is a potential harm to which the law is entitled to respond. If the risk of harm is significant enough, it may rise to the degree of the test for criminal indecency — conduct which society formally recognizes as incompatible with its proper functioning.

Since the harm in this class of case is based on the public being confronted with unpalatable acts or material, it is essential that there be a risk that members of the public either will be unwillingly exposed to the conduct or material, or that they will be forced to significantly change their usual conduct to avoid being so exposed.

Religious Views and Obscenity

Yet, how are the values of Canadian society to be determined? What is to be said of views of the ministers and the clerics? Don’t their conclusions, supported by their members, go to define the values to be protected?

In this regard, the key words for the Supreme Court are what values Canadian society has formally recognized. Among other sources for that formal recognition by Canadian society is the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the supreme law of the land.

This is what the chief justice had to say about religious freedom in the context of the law against obscenity:

The complexity of the guarantee of freedom of religion in this context requires further comment. The claim that particular sexual conduct violates particular religious rules or values does not alone suffice to establish this element of the test [for a finding of obscenity].

The question is what values Canadian society has formally recognized. Canadian society through its Constitution and similar fundamental laws does not formally recognize particular religious views, but rather the freedom to hold particular religious views. This freedom does not endorse any particular religious view, but the right to hold a variety of diverse views.

The requirement of formal endorsement ensures that people will not be convicted and imprisoned for transgressing the rules and beliefs of particular individuals or groups. To incur the ultimate criminal sanction, they must have violated values which Canadian society as a whole has formally endorsed.

Challenge Question

A Matter of Objectivity?

In the Labaye case, the Supreme Court, as noted, set a two-part harm-based test for determining indecency under section 210(1) of the Criminal Code. This was a change from a community tolerance test that had previously guided the Court in deciding such cases. In large part, the Court majority was motivated to make the change by the goal of objectivity. That is, criminal law, especially because it imposes penal sanctions (in the case of section 210(1) of up to two years in prison), ought to be clear so that the citizenry can understand what is expected of them, and police and courts can administer the law fairly.

Q. Does the new two-part test set out in The Queen v. Labaye eliminate subjective judgment on the part of judges?

The Court stated that the two-part harm-based test was more objective than the community tolerance test. But, the majority conceded that the new test left room for “value” judgment — especially in deciding whether the harm involved was incompatible with the proper functioning of Canadian society. But, the majority insisted that such “value” judgment need not be subjective.

The chief justice, speaking for the Court majority, stated:

The objective test for criminal indecency that this Court has long insisted must be our goal requires careful and express analysis of whether the alleged harm is on the evidence in the particular case truly incompatible with the proper functioning of Canadian society. This involves value judgements. What is the “proper” functioning of society? At what point do we say an activity is “incompatible” with it?

Value judgements in this domain of the law, like many others, cannot be avoided. But this does not mean that the decision-making process is subjective and arbitrary. First, judges should approach the task of making value judgments with an awareness of the danger of deciding the case on the basis of unarticulated and unacknowledged values or prejudices. Second, they should make value judgments on the basis of evidence and a full appreciation of the relevant factual and legal context, to ensure that it is informed not by the judge’s subjective views, but by relevant, objectively tested criteria. Third, they should carefully weigh and articulate the factors that produce the value judgements. By practices such as these, objectivity can be attained.

The Dissent

The dissent of Justices Bastarache and LeBel noted an element of subjectivity in the majority test. But, Justice Bastarache said, the community tolerance test does have within it the elements calling for objective judgment. In part, this arises from the reality that any such decision is treated as one of law and, as such, may be reviewed by a court as to its correctness. (Trial decisions of fact are generally given the presumption of correctness by a reviewing court.) Justice Bastarache stated:

In support of using harm as the basic test for establishing indecency, the majority cites the need to make the analysis more objective. It must be acknowledged, however, that a certain degree of subjectivity is inherent in the establishment of the standard of tolerance because of the judge’s role as interpreter of the community’s minimum standards regarding sex.

Despite this problem, the analysis remains objective on the whole as long as the judge ignores his or her personal convictions and instead tries to determine the nature of the social consensus. Judges must not only identify the harm addressed by the Criminal Code’s provisions on indecency, but also determine the nature and content of the moral values of the community in which they perform their functions in order to establish the standard of tolerance.

The judge’s role is not to review the evidence for the sole purpose of determining whether or not a particular social harm has been sustained and establishing the degree of that harm. His or her role is to resolve a question of law by assessing the nature of the acts in their context and evaluating them in relation to the practices and attitudes of Canadians. It is a difficult task, but [quoting Justice LeBel] “because it is a product of his or her times, shaped by his or her culture and concerns, the judge must assume the risks of the problems involved in identifying and reconciling values that are, at times, contradictory.”

Despite the difficulties, the original test for tolerance should not be set aside to make way for a new one based solely on harm. The test was from the start designed to be a sufficiently objective standard, both conceptually and when applied to the facts.... Judges inquire into the behaviour and attitudes of Canadians relating to morals and then consider the parties’ evidence on this issue. A choice of values is made, but the judge must subordinate his or her personal views on morality to community-wide standards. This approach makes it possible to uphold the values on which there is a social consensus and thereby ensure a sufficient level of objectivity. Following it does not appear to pose insurmountable problems for the courts.... Nor is this the only area in which judges must engage in such an exercise.

A Test Fully Defined?

Question: Is the harm-based test set out by the Supreme Court in The Queen v. Labaye a full statement of what now is required to prove indecency within the meaning of section 210(1) of the Criminal Code?

Answer: No. The chief justice in the Labaye case emphasized that this case arose as one calling for interpretation of a statute by the Court. While the Court made reference to “fundamental law,” such as values contained in the Charter of Rights and Freedoms, which is part of the Constitution of Canada, the nature of the case required that it be treated “in the tradition of the common law.” And this means that the law will be developed in the context of new cases as they arise.

The chief justice stated, for the Court majority: “Developing a workable theory of harm is not a task for a single case. In the tradition of the common law, its full articulation will come only as judges consider diverse situations and render decisions on them. Moreover, the difficulty of the task should not be underestimated. We must proceed incrementally, step by cautious step.”

A Strong and Lengthy Dissent

Justices Bastarache and LeBel, as noted, issued a strong and lengthy dissent in The Queen v. Labaye. They saw no reason for ending the community standard of tolerance test to determine indecency under section 210(1) of the Criminal Code. They would have dismissed the appeal and upheld the conviction.

For the dissent, the standard of assessing the questioned act in the context of community tolerance allowed a judge to consider all the relevant factors as to whether an act was indecent. They acknowledged that among these factors could be (and often was) the element of harm. But, they emphasized that it was only one of the factors. And sometimes, they said, an act may be indecent even without the element of harm.

Justice Bastarache, who wrote the dissent, stated:

There can be no doubt that ... social harm has [become] a very important test for establishing indecency.... However, despite the importance of the social harm test, it cannot be said to be the only standard by which the tolerance of the Canadian community for sexual practices is to be measured.

The very definition of social harm warrants closer examination before this test can be applied to determine the level of tolerance of the Canadian community.... Bearing in mind the reasons that led to the adoption of the social harm test, it does not follow from [past cases] that the courts must determine what the community tolerates by reference to the degree of harm alone, and in particular of harm as it is defined by our colleagues in the majority in Labaye. The standard of tolerance is established by means of a contextual analysis....

Thus, serious harm is not the sole criterion for determining what the Canadian community will tolerate. Harm is but one indicator of the community standard of tolerance. The cases cited by the majority must be placed in the context of a line of authority that focusses on determining whether the standard of tolerance has been violated, based on the nature of the acts, the places where the acts occurred and the context. In our opinion, therefore, the majority’s analysis departs in practice from the case law by adopting an approach based solely on harm.

Critique: The Role of the Judge under the Harm Test

Under the majority opinion in the Labaye case, the role of the judge has changed. According to Justice LeBel, past decisions, in effect, allowed reviewing courts a broader range in passing upon lower courts decisions as to whether an act was indecent under the Criminal Code. An explanation may be useful.

Not every decision of a trial court may be reviewed by an appellate court. Often the scope of such review is limited by whether the lower court decision is one of fact or law. If the decision of the lower court is found to be one of fact, then generally the appellate court is limited in its reviewing to the question as to whether there was sufficient evidence in the record (the proceedings before the trial court) to support the initial decision. There is a presumption of validity that usually accompanies a trial court’s findings. In effect, an appellate court has only a limited power to review the trial court’s findings if they are limited to the facts only.

On the other hand, if acts of indecency under the Criminal Code are deemed to be questions of law, appellate courts have a much broader scope for review of a trial court’s decision. Appellate courts are not bound to give any presumptive validity to the decisions of a trial court. The appellate court can ask itself whether the lower court decision was, in the higher court’s view, correct.

Justice LeBel seemed to argue that the majority decision in the Labaye case cut back the appellate court’s range for review of what a trial court might decide. It made such issues those of fact that are to be tested under a new broad standard of community harm rather than tolerance.

This is how Justice LeBel put the matter:

It is clear from the case law that the judge’s role is, through contextual analysis, to interpret the community’s view of sexual practices as expressed in various places at various times. Whether the impugned acts met the Canadian community standard of tolerance is thus a question of law.... However, by adopting certain categories of harm that emphasize the mere exposure of the general public to sexual acts or the risk of serious psychological or physical harm, the majority’s approach tends to reduce the judge’s analysis to a purely fact-based one. The inquiry into the standard of tolerance thus becomes more a question of fact, which is contrary to this Court’s case law [emphasis added].

The Dissent: Meaning to a “Contextual Approach”

In the dissent of Justice Bastarache, the only way the standard of tolerance could be gauged is by placing the questioned act in context. Here, no one factor would be determinative. Rather, the reviewing court, as a matter of law, would inquire as to all the relevant factors.

To limit a court to harm for the purpose of section 210(1), said Justice Bastarache, would heavily impact practices or acts which Canadian society has long considered indecent. He offered as examples: child pornography, incest, polygamy, and bestiality. He stated:

The community considers these acts to be harmful in themselves. Parliament enforces this social morality by enacting statutory norms in legislation such as the Criminal Code. The community does not tolerate degrading acts or sexual exploitation either.... Nor is the purchase of sexual favours in public places accepted, as evidenced by the various provisions of the Criminal Code that prohibit common bawdy-houses and prostitution.

In this second type of situation, morality is conveyed by means of provisions that demand that each individual case be assessed in light of its specific context and circumstances in order to gauge the Canadian community’s tolerance for the acts in question. Certain acts are thus prohibited because of their harmful nature. Others are prohibited because of the context and places in which they arise, as in [this case]. Harm is thus ultimately linked to a concept of social morality. There is also harm where what is acceptable to the community in terms of public morals is compromised.

Thus, the need to prove societal [harm] to a degree approaching social disorder would appear to unduly restrict the situations in which a court could reach a finding of indecency. The importance of this requirement profoundly alters the traditional concept of tolerance by suggesting that the public will tolerate anything that is contrary to public morals unless it can be established that an act will cause significant social disorder.

Public or Private: Its Place in Analysis

For the dissent, whether the challenged acts occurred in a private or public place did have meaning. But, again the significance to the dissent was one of looking at the entire context. So it was that Justice Bastarache both itemized relevant factors going to establish context and then addressed the question of public or private place where the acts took place. He wrote:

It can be seen from this Court’s case law on indecency and obscenity that the following contextual factors may be taken into consideration in determining the standard of tolerance: (1) the private or public nature of the place; (2) the type of participants and the composition of the audience; (3) the nature of the warning given regarding the acts; (4) the measures taken to limit access to the place; (5) the commercial nature of the place and the acts; (6) the purpose of the acts; (7) the conduct of the participants; and (8) harm suffered by the participants.... This list is not exhaustive, however.

First, Justice Bastarache referred to the expert testimony of Dr. Campbell. (Following examination by counsel before the trial court, Dr. Campbell was deemed qualified to offer testimony as to the acts and behaviour in question.) In effect, Justice Bastarache said, the expert testimony demonstrated that the level of community tolerance varies in part on whether the act challenged is public or private. Dr. Campbell’s testimony and its impact was summarized by the municipal court (the trial court):

However, the Court understands from Dr. Campbell’s testimony that for Canadians, in all cases, swinging is understood to mean that the swapping of sexual partners is done in private, that is, “among themselves.” The witness referred to a kind of “social contract” that is entered into, tacitly or specifically, between those who wish to participate in swapping. Thus, the more closed and off-limits the “social contract” is to third parties, the closer it is to falling within the “classical” definition of swinging. According to the witness, this is where the threshold of the contemporary Canadian community lies, that is, on the condition that the sexual activities take place in private.

Similarly, if the sexual activities take place in public, what is happening is no longer “swinging,” but an “orgy.” According to Dr. Campbell, Canadians clearly do not tolerate orgies and do not accept that other Canadians, even informed and consenting adults, participate in them.

Dr. Campbell confirmed this approach several times in his testimony at trial.

It was not enough, Justice Bastarache said, for the accused to limit the ability of patrons to “circulate freely within the confines of the establishment.” To view the matter in context requires more. He wrote:

For these reasons, a swingers’ club cannot automatically be characterized as a “private” place on the basis that the general public is not permitted to circulate freely within it. The place may retain a public dimension that is sufficient to support a finding of indecency.

If the contrary position were adopted, it would be impossible, provided that the participants consent and that the spectators are considered only to be participants, to sanction any sexual act that is not degrading or harmful to the participants. As we have seen, this unacceptable solution amounts to denying that the standard of tolerance can be applied to sexual acts performed in establishments that are accessible to the public. Such a solution does not take into account the fact that indecency is based on what Canadians do not abide other Canadians seeing or doing.... It would also amount to saying that only the morality of the participants themselves is relevant.

The Dissent: Applying a Standard of Community Tolerance to the Facts

The dissent zeroed in on the application of the tolerance test to the facts. It found no room for doubt that either so-called privacy or consent of those participating shielded the accused from a finding of indecency under section 210(1) of the Criminal Code. We quote that portion of the dissent in some detail:

An analysis of the place where the acts were performed shows that the establishment is a public one. Although advertised as a private club, l’Orage was a place to which the public had ready access by invitation, express or implied.... Several facts illustrate this public dimension and the ease with which the public could enter the establishment. It should be noted that, despite the measures allegedly taken to limit access, members of the general public were on many occasions invited to join the club and to take part in sexual activities on the third floor.

The number of people who had access to the establishment and, potentially, to the third floor was also very high, about 800. All that was necessary to gain access to the establishment was to pay the requested fee after a cursory interview that was quite superficial. It was even easier to gain access to the establishment and to the third floor simply as the guest of a club member. Neither the [accused] nor his employees interviewed guests or gave them an official warning. They merely relied on the members to tell their guests about the exact nature of the sexual acts taking place on the third floor and to ensure that those guests shared the philosophy of partner swapping and would not be shocked by what they saw….

The majority’s reasons for judgment appear to indicate that since the “public” in [this] case consisted solely of club members and their guests, the “general public” was at no risk of seeing the acts in question. We cannot subscribe to this interpretation. The “public” in [this] case consisted of people who were both participants and spectators. A place can be sufficiently public even though the people gathered there are members of a “private” club or the guests of members.... The fundamental issue remains whether the community tolerates having these individuals witness these activities or take part in them in this context [emphasis added].

In [this] case, the [accused] claims to have set up an adequate system for limiting access to the establishment and to the third floor to individuals who shared the philosophy of partner swapping and who knew what to expect when they entered the establishment. Our colleagues agree with him that the initial interview, the membership fees, the doorman on the first floor, the word “Privé” (private) on the door leading to the third floor and the [combination] lock on the door to the [accused’s] apartment were effective and appropriate measures for controlling access.

With respect, these conclusions contradict the trial judge’s findings, and we see no fatal error in her analysis. The interview with prospective members served merely to answer their questions, they were given no warning or official explanation regarding the sexual acts taking place in the establishment, and the veracity of their statements was not verified. The membership fees only confirm the commercial nature of the place and of the impugned acts, as we will see below. The purpose for which the money was collected is irrelevant, as the only material question is whether it was necessary to pay to take part in the acts. The notice on the door to the third floor was just as ineffective, since there was, as the trial judge indicated, a constant flow of people between the establishment’s three floors. The trial judge pointed out that the third floor was a dependency of the two lower floors.... Finally, the evidence shows that all club members were given the combination to the lock on the apartment door upon joining the club and that they were all free to take guests there. In short, these measures did not adequately limit the public’s access to a place where very explicit sexual acts were performed. In our view, the degree of privacy was therefore insufficient.

An analysis of the establishment’s operations reveals the commercial nature of the activities that took place there. Several of the facts mentioned above testify to the commercial nature of the [accused’s] business. Sexual acts could be performed on the third level of the establishment only after a mandatory commercial transaction between the participants and the owner of the establishment, since everyone had to pay a fee to become a member. The participants essentially purchased sexual services provided by other participants….

Canadians are not inclined to tolerate the commercial exploitation of sexual activities, which is contrary to a number of values of the Canadian community, such as equality, liberty and human dignity. The existence of facts that appear to be indicative of the commercial exploitation of sexual acts, while not in itself sufficient to support a finding of indecency, does clearly support the conclusion that the community standard of tolerance has been offended in [this] case. Under s. 210(1), whether or not social harm has been sustained is not a determinative factor in establishing indecency. It may, however, assist in gauging the degree of community tolerance when humiliating, degrading or demeaning acts are performed.

In [this] case, it is still possible to conclude that a form of social harm has been sustained that indicates that the level of tolerance of Canadians has been exceeded. This harm results from the failure to meet the minimum standards of public morality rather than from incompatibility with the “proper functioning of society” or from predisposing others to anti-social behaviour. This conclusion is specific to s. 210(1) and results from the establishment of the standard of tolerance on the basis of an objective, contextual analysis of the sexual acts.

Thus, an analysis of the context in which the acts took place may make up for the absence of harm as defined by the majority, as whether or not such harm has been sustained is just one of the factors to be considered. In [this] case, the public and commercial dimensions of the sexual practices in issue would lead to the conclusion that those practices were indecent even if there were no harm.

In [this] case, the sexual acts were very explicit acts, and they took place in a commercial establishment that was easily accessible to the general public. This situation caused a certain form of social harm resulting from the failure to meet the minimum standards of public morality. In light of these contextual factors, we are of the opinion that the sexual acts performed in the [accused’s] establishment clearly offended the Canadian community standard of tolerance and were therefore indecent. Our analysis does not permit us to conclude that the Canadian community would tolerate the performance, in a commercial establishment to which the public has easy access, of group sexual activities on the scale of those that took place in this case. The [accused’s] establishment is therefore a common bawdy-house within the meaning of s. 210(1).

You Be the Judge

Another Ground for Indecency?

The issue in this case was raised in The Queen v. Labaye.

The Facts

The Jester is a bar and fast food outlet located in an area of downtown Vancouver frequented by prostitutes and used for the sale and injection of drugs. The rate of HIV infection is several times greater in this area than in the rest of the city, the province or, for that matter, the rest of the nation.

Fred and Daisy, the new owners of The Jester, are anxious to increase profits. They have been careful to prevent the sale or use of drugs in the bar, and they have stopped solicitation by sex trade workers. Also, through careful surveillance, they have limited patronage to adults only.

Fred and Daisy want to provide a “forum” for what they call “openness” in their adult-only establishment. Consenting patrons will be able to dress (or undress) and behave as they want — as long as they do not injure themselves or others. A private area, physically separate from the street level entrance, will be made available for members only. It will be a place where explicit sex could take place — again only between consenting adults.

Such individuals will have to pay annual dues of fifty dollars and be interviewed to ensure that they understand the nature of the private area. In any event, the area will be accessible only (1) by interview to guarantee that is indeed where individuals want to go, and (2) by two locks, the combinations of which only members will know. No guests will be permitted. Membership will be limited to five hundred. No recording equipment of any kind will be allowed.

To the police and health authorities, however, the “private area” of The Jester, if allowed to function, poses a real problem. To them, there is a risk of sexual transmitted disease and especially HIV infection.

Fred and Daisy decide to proceed with the planned club, including the so-called “private area.” It is that area which becomes the centre of the Crown’s charge against them under the Criminal Code.

The Issue

May the “private area” of The Jester be prohibited on the basis that it would be “indecent” due to the real risk to public health of sexually transmitted disease?

Points to Consider

Under section 210(1) of the Criminal Code, it is an offence, punishable by two years in prison, to keep a common bawdy-house.

A bawdy-house is defined in section 197(1) of the Code as a place kept, occupied, or resorted to by “one or more persons for the purpose of prostitution or the practice of acts of indecency.”

The Crown does not argue that prostitution took place in the “private area.” No money was paid or received by those taking part in the sexual acts.

The Jester, itself, is a “public place,” although the so-called “private area” is open only to screened members.

Explicit sex did indeed take place in the “private area.” The acts involved were numerous.

Expert evidence from physicians and public health officials left no doubt there was danger that sexually transmitted disease would be passed on as a result of such explicit sex. In that sense, there was harm to those participating as well as the public.

Discussion

The issue of sexually transmitted disease was raised in the Labaye case as a separate ground for finding explicit sex indecent. The Supreme Court, in its 7–2 decision, rejected the argument. It did not dispute the health dangers that might arise from such activity. Rather, Chief Justice McLachlin, speaking for the Court, in effect said that the danger was not relevant to the question as to whether the acts in question were indecent.

The chief justice wrote:

A form of harm to participants that invokes special considerations is the danger of sexually transmitted disease. Clearly this is an important harm that may flow from sexual conduct. It has been considered as a factor in determining whether conduct is criminally indecent, and as a factor exacerbating an already existing harm....

However, it is difficult to assign the risk of sexually transmitted disease an independent role in the test for indecency. The risk of disease, while it may be connected to other legal consequences, is not logically related to the question of whether conduct is indecent, either conceptually or causally. Indecency connotes sexual mores rather than health concerns, and sex that is not indecent can transmit disease while indecent sex might not [emphasis added].

Let’s pause for a moment to understand what the chief justice said and didn’t say. First, she made it clear that the danger of sexually transmitted disease, by itself, will not support a finding that an act is indecent. However, the danger of sexually transmitted disease may be an element in the context of proving an act is indecent. And, it may add to the proof of existing harm. Finally, the chief justice did not rule out the possibility that the danger of sexually transmitted disease might not give rise to other violations of law, even the criminal law.

The Dissent

As noted, Justices Bastarache and LeBel dissented from the Court’s opinion in the Labaye case. On the question of sexually transmitted disease, Justice Bastarache, who wrote the dissent, stated:

Harm to the participants is also relevant. Attention must therefore be paid to the risk of physical or psychological harm. This approach permits the risk of spreading sexually transmitted diseases (“STDs”) to be taken into account. If the evidence demonstrates a real risk of transmission linked to the systematic absence of protective measures, this factor will be relevant. We do not agree with the majority on this point, since Canadians’ tolerance of sexual practices is influenced by the risks of spreading STDs.

In support of his view, Justice Bastarache cited The Queen v. Tremblay, [1993] 2 Supreme Court of Canada Reports 932. There the Court refused to find an act of a nude female dancer indecent in part because she had no physical contact with customers. The Court stated:

Although the lack of physical contact is not determinative of the issue [of finding indecency within the meaning of the Criminal Code], it is nonetheless highly significant. The rule [of the establishment where she danced] ensured that there would be little likelihood that physical harm or hurt would be done to either individual. Of equal importance was that it ensured that the transmission of infectious sexual diseases was prevented. This factor should increase the level of the tolerance of the community for the acts performed at The Pussy Cat.

Challenge Question

Debate after the Supreme Court’s Decision?

Q: Following the Supreme Court of Canada’s decision in The Queen v. Labaye, what role, if any, does Parliament have in modifying that portion of the Criminal Code relating to “indecency”?

Bear in mind that the decisions of the Supreme Court of Canada reflect the supreme law of the land. And, it should be noted that the Charter of Rights and Freedoms is part of the Constitution of Canada and, as such, embodies guarantees and values which, in certain instances, courts and government must honour and, in other situations, judges may be called upon in interpreting the meaning of laws, such as the Criminal Code.

In the Labaye case, the Supreme Court was called upon to interpret the meaning of “indecency.” The provision of the Criminal Code in which it appeared did not specifically define the term. The Court found meaning by looking to past cases and those fundamental values reflected in the Charter.

The decision, as such, leaves it open to Parliament and the citizenry to engage in a discussion as to whether the statutory meaning of “indecency” should be changed, for example, to reflect “community standards of tolerance.” This is not to say that any change in that regard would not in turn raise questions under the Charter. But, it is to say that the door is open for Parliamentary action. That action could include enactment of a law which specifically incorporates the community standard of tolerance. Again, recall that, as a matter of interpretation, the Court majority in the Labaye case rejected that standard in favour of a harm-based test.

The Decision: A Start for Discussion?

In an editorial, the Globe and Mail argued for just such a debate. It stated:

It shouldn’t be impossible for a liberal society to tolerate diversity without abandoning common values and standards. It shouldn’t be impossible to say that, while people do get divorced, stable marriages and families that stay together are a foundation stone of a healthy society. It shouldn’t be impossible to say that while people can do what they like in their own homes, it offends and degrades the community when group-sex parties are allowed in neighbourhood bars....

The Supreme Court’s groundbreaking decision is a good starting point for a real debate. What does community mean in the modern world? What is the role of the state, if any, in regulating morality? Is there even such a thing as public morals in a modern society? (Globe and Mail, January 3, 2006)

The Press Responds: Different Views

The Supreme Court of Canada’s decision in The Queen v. Labaye resulted in substantial comment in the press. We have included two excerpts and cited others.

Globe and Mail

Cold country, hot sex. The Economist will love us. The Europeans will sing our praises. The Americans will denounce us even as they book their hotel reservations. But as a matter of law, the Supreme Court of Canada’s 7–2 ruling [in the Labaye case], legalizing most sex clubs and throwing out the community test of tolerance, makes no sense.

Oh, it was an ultra-modern, superbly tolerant philosophical treatise — under such high-flown headings as “Toward a Theory of Harm” — but it collapses under scrutiny. For one thing, it sets an impossible standard for dealing with sex clubs: proof of harm verging on social disorder. For another, it describes as private places clubs that are licensed bars in commercial buildings, that advertise in newspapers and magazines, and that send out thousands of brochures. For a third, it undermines the very notion that the criminal law should be regulating morality….

This is about much more than sex. It is about the uses to which the criminal law may be put. Should the Criminal Code be used to legislate morality or ethics or, oh archaic word, decency? ... The commercializing of sex in public places may offend community standards, and the courts should not be afraid to say so (Globe and Mail, December 22, 2005).

Le Québécois Libre

While it seems painfully obvious that swinging must increase the stresses on a relationship, it is also obvious that some people are much better than others at handling stress. Even more telling, some people are good at handling one kind of stress and therefore make good police officers, for example, but would flounder trying to handle the kinds of stresses a grade three teacher navigates with grace. People are different, and it is certainly plausible that for some couples who are better able to deal with the particular stresses of swinging, the benefits might just outweigh the costs.

You don’t need to be a libertarian to applaud the Supreme Court in this instance. You just need to be willing to tolerate the choices other people make even when you disagree with those choices. You need to be willing to let people fall down once in a while rather than treat them like little children unable to assume any measure of personal responsibility. And, you need to be willing at least to entertain the possibility that maybe, just maybe, you don’t know with one hundred percent certainty what’s best for everyone else — a little tolerance, a helping of individual responsibility, and a touch of humility (Le Québécois Libre, January 15, 2006).

(Globe and Mail, December 27, 2005; Winnipeg Free Press, January 8, 2006)

References and Further Reading

Blackwell, Richard. “Top Court Redefines Obscenity.” Globe and Mail, December 22, 2005.

Buckingham, Janet Epp. “The Supreme Court Swingers Decision Strips Away Community Values.” Globe and Mail, December 27, 2005.

Doucet, Bradley. “Supreme Court Strikes a Blow for Swingers’ Rights.” Le Québécois Libre, January 15, 2006.

Globe and Mail. “Just Like That, There Go Community Standards.”, December 22, 2005.

_____. “Of Norms and Morals.” , January 3, 2006.

Jantz, Harold. “Moral Confusion — No Harm from Swingers’ Clubs? Really?” Winnipeg Free Press, January 8, 2006.

Moore, Oliver. “Swingers’ Clubs Hope Ruling Will Help Stimulate Their Business.” Globe and Mail, December 23, 2005.

Peritz, Ingrid. “Swinger Hot Spot Declares Victory.” Globe and Mail, December 22, 2005.

Crime Scene Investigation

Acknowledgements

First, I would like to acknowledge the Supreme Court of Canada. Over the decades, the membership of this nine-person Court has altered through retirement (mandatory at age seventy-five) or death. Increasingly, the Court has tried to hand down judgments that come ever closer to being decisions that can be read, understood, and discussed by those who want to be informed about the structure of our law, of our government, and more importantly, of our society’s values. So, I thank — most profusely — the Supreme Court of Canada.

A second link in the chain between the law and the people is the media. It is possible, of course, in our highly computerized society to read the decisions of the Supreme Court of Canada online, but that can be an arduous process. On occasion, magazines such as Maclean’s feature a particular subject for investigative reporting in which the Supreme Court of Canada’s judgments (such as those relating to tobacco) may form a part. Newspapers such as the Toronto Star may select a story reflecting a matter of social concern, such as bullying. And, on a daily basis, radio or television may report on such stories.

The net effect of media reporting, at best, ranges from episodic to minimal. Perhaps the one constant to which we frequently refer in this series is the informed editorials in Canada’s national newspaper, the Globe and Mail. Without hesitating, the Globe and Mail granted the right to reprint editorials (and there were many) on Supreme Court of Canada decisions. The approach of the Globe and Mail seems to be: Let the public be made aware. I thank them for their generosity and for maintaining consistently high standards.

Ordinarily, I would say that I take full responsibility for the contents of this book. Hopefully, however, the contents do not reflect my judgments but those of the Supreme Court of Canada. My task, as I saw it, was to discuss those judgments in a non-judgmental and accessible way.

Introduction

A police officer walking a beat or driving a patrol car may be a reassuring sight, giving a sense of security to onlookers. Police presence alone may serve to prevent crime. Yet, crime does occur. This book focuses on crime scene investigations (CSI) — police searches for evidence that can lead to the identity of the wrongdoer and his/her apprehension, trial, and conviction.

The first job of investigating officers is to get the facts and to determine whether charges will be laid and prosecution will follow. The badge and the uniform — both signs of authority — do not give police unlimited power to demand information by way of detention or seizing possible evidence. The Charter of Rights and Freedoms, along with statutes and police regulations, places conditions on how police may go about crime scene investigations

It is the intersect of crime scene investigations and individual rights that is the focus of much of this book.

Police operate under rules which, if allegedly broken, often are investigated by the police themselves. But, there is another kind of review of police action. If the Crown attempts to use tarnished evidence, a court can pass on the matter and, under the Charter, a judge has a wide discretion in determining whether such evidence can be used at trial.

At what point must police inform persons under detention of a right to counsel, and whether a lawyer must be present during police interrogation? This is the subject of Chapter 1.

In Chapter 2 we see an attempt by police to search personal home computers for evidence of child pornography. Such searches, however, may go beyond any evidence of child pornography. How can police know where to look inside the computer? How far can police go in probing the life of an individual and his/her family through inspection of a personal computer?

Proof of crime may lie beyond police questioning or examination of a suspect’s personal computer. Proof may come from such mundane objects as garbage which, by definition, is intended to be discarded. On what basis, then, may an individual assert a “privilege” of ownership and privacy against a police garbage search? To the police, however, such refuse may tell a story. It may disclose a lifestyle; it may even point to evidence of crime, such as the use of prohibited drugs.

In addition, there are searches that have the appearance of not being searches at all. Suppose police suspect a home is being used as a “grow-op” — a place for the unlawful cultivation of marijuana. One way to get evidence that, in turn, might be used to justify a search warrant is a plane “fly-over” with heat sensors — police can establish whether an inordinate amount of heat generated by electricity is being used at the suspected house. That excess heat could serve to aid in the cultivation of marijuana plants. Such a fly-over is a search, but is it subject to legal limits?

We return to the police on patrol. Their training and everyday experience gives them a sense of their “turf.” Here we come to the police “pat-down,” an intersect between police investigation and individual privacy rights. Consider an individual walking on a sidewalk. On the face of it, she has done no wrong. However, the area is one designated by police as “high crime.” Two police officers doing their regular beat stop the walker and proceed to do a pat-down. An officer brushes the outside of the walker’s clothing and finds a “bulge.” She reaches inside to find that the bulge is a packet containing cocaine. An arrest is made, and charges are laid. The question: Was the search legal? This is the subject of Chapter 3.

In crime scene investigations, police can make mistakes that can be costly and otherwise hurtful to the persons investigated. Sometimes, they reach what may appear to be a dead end in their investigations. In Chapters 4 and 5 we discuss other methods used by police in their search for the facts. Topics range from hypnosis to DNA testing.

Police investigations may be like links in a chain, where one link seems to lead to another, forging a chain that leads to charges and conviction of a person who later is found to be innocent. And, there are times when police investigations are conducted negligently — even knowingly so. Are there any remedies for such police and Crown action? Will the victim be inhibited from bringing forward such action? This is the subject of Chapter 6.

Who Are the Judges?

A few words must be said about the judges (or justices, as Supreme Court of Canada judges are called). Who are they? How are they chosen? How do they go about coming to decisions? The answer to these questions may help us better understand the decisions that we will be examining.

In 1989 Beverley McLachlin, then chief justice of British Columbia, received a telephone call from the prime minister of Canada. He asked if she would consider a new position: that of a justice of the Supreme Court of Canada.

It was within the power of the prime minister, accepted by his Cabinet, to offer the position. The appointment of a justice of the Supreme Court of Canada did not have to go through parliamentary committee or parliamentary consent, as such — a process enormously different from that of the United States, where the president nominates and the Senate, following hearing, either gives the nomination a stamp of approval or rejection. (If the Senate rejects, then the candidacy of that person comes to an end.)

Justice McLachlin thanked the prime minister, accepted his offer, and became a justice of the Supreme Court of Canada. On January 7, 2000, the prime minister offered Justice McLachlin the position of chief justice of the Supreme Court, and she accepted.

There are nine justices who make up the Supreme Court of Canada. The conditions for their appointment are few, but they are important. They are appointed through the prime minister and the Governor in Council. In this regard, the “pool” for appointment by law is comprised of superior court judges or barristers with at least ten years in practice in a province or territory.

Once named to the Supreme Court, a justice cannot be removed from office so long as the justice carries out her/his duties in accordance with the law. But, at the age of seventy-five, there is forced retirement. (However, many retired justices are called back to serve in appointments such as chairing special commissions.) A serving justice can only be removed from office for bad conduct or incapacity (such as illness).

By law, the prime minister is required to appoint three justices from Quebec. By tradition, the prime minister also appoints three justices from Ontario, two from the West, and one from Atlantic Canada.

How the prime minister goes about selecting a justice for the Supreme Court, given the broad limits described, is for the prime minister to determine. In 2012 Prime Minister Stephen Harper set new guidelines. He named a panel of five members of the House of Commons: three Conservatives (the prime minister’s governing party), one New Democrat, and one Liberal. Their task was to review a list of qualified candidates put forward by the federal justice minister in consultation with the prime minister, the chief justice of the Supreme Court of Canada, the chief justice of Quebec (where the next justice was to be selected), the Attorney General of Quebec, and provincial and territorial bar associations (as well as public suggestions).

The panel was instructed to submit a list of three recommended candidates — unranked — to the prime minister and he would select one from that list. A public hearing before a special parliamentary committee would be held before the prime minister finalized the appointment.

The first justice selected through the process described above was Richard Wagner, who was a long-time trial lawyer before becoming a justice of the Quebec Court of Appeal. In an interview with the Globe and Mail, Justice Wagner said: “I might surprise you, but I liked the [hearing] process. There is nothing to hide. I think a judge should follow the directions of society, and that means to explain to citizens what we do, how we do it and why we do it. I think it’s fair and it’s reasonable.”

A central concern, said Justice Wagner, is ensuring access to the justice system for all Canadians.

Some Facts

On the whole, it can be said that justices of the Supreme Court of Canada historically do not like to talk about themselves. But, there are some facts that may give rise to questions going to the makeup of the Court:

There have been no persons “of colour” appointed to the Supreme Court of Canada.

There have been no persons from among the “first peoples” (First Nations, Métis, and Inuit) appointed to the Supreme Court of Canada.

The fact is that white men, drawn from an elite part of the legal profession, constituted the “pool” from which justices of the Supreme Court of Canada were drawn — at least until 1982. In that year — at the time the Charter of Rights and Freedoms, an important part of the Constitution of Canada, came into effect — the prime minister named the first woman to the Supreme Court: Bertha Wilson. She had immigrated to Canada with her husband John, a Presbyterian minister in Scotland, in 1949.

Justice Wilson had received an M.A. in philosophy at the University of Aberdeen. Once in Canada, she applied for admission to the law program at Dalhousie University in Halifax. She recalled an interview with the dean of the law school, and chuckled about it later. The dean advised her to “go home and take up crocheting.” She didn’t. She entered the Dalhousie law program in 1955 and was called to the Nova Scotia Bar after graduation.

In 1959 Justice Wilson moved to Toronto where she found employment with a leading law firm and later became head of research for that firm. Her job consisted in no small measure in writing opinions for members of the firm — a task that went a long way toward preparing her for work as a judge.

Justice Wilson received an invitation in 1979 to sit as a judge on the Ontario Court of Appeal. Her immediate response was surprise — and then laughter when, as a judge whose opinions reflected women’s rights, she said: “I’ll have to talk it over with my husband.” She accepted the position on the Court of Appeal and served there until her appointment to the Supreme Court of Canada.

Justice Wilson was a Supreme Court justice from 1982 to 1991, retiring at the age of sixty-eight. There, she had an important role in interpreting the then newly-established Charter of Rights and Freedoms, including decisions relating to a woman’s right to abortion (The Queen v. Morgentaler [1988] 1 Supreme Court of Canada Reports 30) and a spouse’s right to claim self-defence to murder based on physical abuse by her/his spouse (called in law the battered wife syndrome) (The Queen v. Lavallée [1990] 1 Supreme Court of Canada Reports 852).

Since the appointment of Justice Wilson, a number of women have served as justices of the Supreme Court of Canada. In 2012, after serving as a justice for what she called ten “intense” years, Justice Marie Deschamps of Quebec resigned at the age of fifty-nine. (At that time, there were four women sitting as justices.) In an interview with CBC News a week after her resignation, Justice Deschamps was asked about “gender balance” on the Court. She answered, “I think every court should aim for half and half.... It’s important that [the Court] is balanced.... I hope that the government will maintain at least four women on the Court. Whether the next candidate is a woman or it’s the one that follows it will be for the government to decide.”

In fact, the prime minister named Justice Richard Wagner of Quebec to the Court, thus lowering the number of women justices (at least for the time) to three.

It should be noted that the chief justice at the time of Justice Deschamps’s resignation was Beverley McLachlin (CBC.ca, August 15, 2012).

How Are Judges to Decide?

May emotion play a role in decision-making? For us, in reviewing decisions of the Supreme Court of Canada (or the decisions of any court, for that matter), an important question is whether justices can decide a case largely on the facts and the law as given. Can they remove (or largely isolate) any individual bias?

There are two parts to the answer — at least as applied to the Supreme Court of Canada:

No single justice decides a case. If the Court sits as a panel, there usually are seven justices who meet, discuss, and work toward an opinion which the chief justice usually assigns to a specific justice. If there is disagreement that cannot be otherwise resolved, then the way is open to a written dissent or a concurring opinion. (Often the justices are able to work out their disagreement to form a majority or a unanimous opinion.)

A case may be one that summons enormous emotion. Such was the case of Robert Latimer, a Saskatchewan farmer charged and convicted in the “mercy” killing of his disabled daughter. Twice the case went on appeal to the Supreme Court of Canada. The second time, the appeal was from a judgment of the Saskatchewan Court of Appeal that had increased a sentence of one year to ten years.

In a decision by the Court as a whole in the Latimer case — not one attributed to any particular justice — the Supreme Court of Canada affirmed the judgment. The role of emotion in coming to decision was lessened.

Justice Ian Binnie, on his retirement after serving fourteen years on the Court, commented on the Latimer case in an extensive interview with Kirk Makin of the Globe and Mail:

The Robert Latimer case was a hugely controversial case, but to me, the legal outcome was straightforward. You can’t have people making their own judgments as to whether their child should live or die.

In saying that, I make no moral judgment about what Latimer did. I accept his word that he did it because he thought it was best for his daughter.

But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows from the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.

So, there is no necessary [relation] between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant (Globe and Mail, September 23, 2011).

References and Further Reading

Fitzpatrick, Meagan. “Supreme Court Should Have Four Women Says Retiring Justice,” CBC.ca, August 15, 2012.

Makin, Kirk. “Justice Ian Binnie’s Exit Interview.” Globe and Mail, September 23, 2011.

_____. “Supreme Court Judge Warns of ‘Dangerous’ Flaws in the System.” Globe and Mail, December 12, 2012.

Chapter 1

Police Questioning: Must a Lawyer be Present?

Science in crime detection dates back more than two centuries. It includes photography, fingerprinting, and blood samples. Perhaps, however, no technique is more important to effective investigation than police finding and questioning witnesses who, in violent crimes such as murders, often become suspects.

In this chapter we will explore how police, in conducting a criminal investigation, must do so in ways that satisfy the fundamental rights of Canadians — with special reference to the Charter of Rights and Freedoms. (The Charter is part of the Constitution of Canada and, as such, is the highest law of the land. The final interpretation as to the meaning of the Charter — subject to a quite limited exception called the notwithstanding clause — is that given by the Supreme Court of Canada.)

The principal case in this chapter is The Queen v. Sinclair, 2010 Supreme Court of Canada Reports 35. It deals with police questioning of a murder suspect and that person’s right to consult a lawyer of his choice before any interrogation.

Sinclair was arrested in British Columbia and charged with second degree murder. He was subject to “custodial questioning” by police following that arrest. (Two companion cases were also decided by the Supreme Court. They will be presented as “You Be the Judge” exercises.)

Among the questions raised in this chapter are:

At what point does an arrested person have a right to the advice of a lawyer (counsel)?

What are an individual’s rights in terms of having a lawyer of his/her choice?

Does the right to counsel include the opportunity to have the arrested person’s lawyer present at every stage of questioning?

Can such contact be limited to one telephone call?

When, if at all, must police renew the right to counsel if the arrested person initially refused the offer?

If the right to counsel is denied, does it follow that evidence unlawfully obtained will be excluded from trial?

Who Are Law Enforcement Officers?

Much police work does not relate to crime but to the maintenance of order and safety. For example, a large number of police within any department have little responsibility, as such, over serious crimes (felonies). Traffic officers — those charged with helping to maintain safety on streets and highways — are only incidentally involved with the criminal law, such as when there is an arrest for excessive speeding, impaired driving, or serious injury through driver negligence.

Most people thought of as law enforcement officers in fact are not police. In 2006 there were about 102,000 private security personnel in Canada, compared to 68,000 police officers. This means that there were about three private security personnel for every two regular police officers. Security guards made up 90 percent of private security personnel.

Between 2001 and 2006 private security forces in Canada grew by 15 percent. In that same period, regular police forces increased by 3 percent.

Private officers may be in uniform. They may be prohibited from carrying restraints such as handcuffs, mace, or batons. Some officers, such as those transporting valuable goods, may be licensed to carry weapons. On demand, they may be required to produce identification. Most private law enforcement officers are employed by companies such as those managing or constructing buildings or shopping malls.

Private officers are subject to government licensing. And, over the years, the licensing process has become more demanding — though not nearly as stringent as it is in those special schools established for those seeking police jobs.

However, some of these private security organizations seem almost like regular police forces. For example, in Canada there is an organization nearly a century old called the Commissionaires. It is a private security firm that originally hired largely retired military personnel, but now includes former police officers and others. Its contracts are largely, though not exclusively, with government. Its employees can be found as guards at military installations in the company’s own unique uniforms. Their employer is not the government but the Commissionaires. They wear insignia of rank and follow a military-type structure.

The Power of Private Security Guards

Private security officers have the power to protect property and, should they witness any crime, to make a “citizen’s arrest.” If there is a home break-in — in a gated community, for example — the likelihood is that the incident is reported to the police. (If goods are stolen and they are insured, then the insurance company probably will require a police report of the incident as a condition for collecting on the insurance policy.)

The Power of Police

For the most part, we understand that police carry a badge and are trained and employed by government. They are subject to government regulation in terms of how they are to respond to reported crimes. And, their behaviour is subject to military-style discipline, including the possibility of discharge for serious violation of police rules.

Often police are in uniform and drive specially marked vehicles. (Sometimes, however, they are not in uniform. “Detectives” frequently are in “plain clothes.”) It is fair to say that police, as they are employed by government, are set up along military lines. Police have the power, in law, to arrest those within their jurisdiction on a showing of probable cause, and to lay charges which the Crown may prosecute in the criminal courts.

Why the Difference?

As a practical matter, what is the difference between a “regular” police officer and a private security guard?A regular police officer is an employee of government and she/he is licensed by government. It follows that her/his actions can be seen as the actions of government. For the most part, the discussion in this chapter focusses on regular police.

The Charter of Rights and Freedoms applies to regular police officers, though not to private security guards. And the Charter, as noted, is part of the Constitution of Canada which sets standards that the police must observe in their dealing with individuals. These include affording rights under section 10, including the obligation to be informed “promptly of the reasons for arrest or detention,” the right to obtain and instruct a lawyer, and the right to have the validity of such detention determined by a court of law.

Section 32 of the Charter provides that it: “(1)(a) applies to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.”

The Sinclair Case: The Facts

As noted, the Sinclair case will be the main judgment for discussion relating to adults. There the Court divided, with the majority ruling that it was enough for the police to have given a murder suspect the opportunity for a brief phone call to his lawyer. In a 5–4 decision, Chief Justice McLachlin and Justice Louise Charron wrote the majority opinion in which Justices Deschamps, Marshall Rothstein, and Thomas Cromwell concurred. Justice Binnie wrote a dissenting opinion, and Justices Louis LeBel and Morris Fish, joined by Justice Rosalie Abella, wrote another dissent.

The facts, as in most cases, are important in order to recognize the issues and to understand the decision reached — both as to majority, concurring, and dissenting opinions. (One never knows when a differently constituted Court may look at a dissent and use it to read more narrowly the majority opinion. Supreme Court justices must retire at age seventy-five. The result is that the Court composition is always in a state of change.)

Sinclair was charged with second degree murder in the November 21, 2002 killing of Gary Grice, and ultimately was convicted by a jury of the lesser offence of manslaughter. The events that concern us on this appeal took place following Sinclair’s arrest early in the morning of Saturday, December 14, 2002, by members of the RCMP detachment in Vernon, British Columbia.

It was then that RCMP officers told Sinclair that he was being arrested for the killing of Grice, that he had the right to retain and instruct counsel without delay, that he could call any lawyer he wanted, and that a Legal Aid lawyer would be available free of charge. When asked whether he wanted to call a lawyer, Sinclair responded: “Not right this second.” He was then taken to the RCMP detachment, with assurances that he would have another opportunity to contact counsel once he got there.

After booking (being formally charged by police), Sinclair was again asked whether he wanted to exercise his right to counsel. This time he told the officer, Corporal Leibel, that he wanted to speak with a lawyer named Victor S. Janicki, whom he had once retained to defend him on an unrelated charge. The police placed the call and Sinclair spoke with Janicki by phone in a private room for about three minutes. Corporal Leibel asked Sinclair whether he was satisfied with the call, and Sinclair answered: “Yeah, he’s taking my case.”

About three hours later, Corporal Leibel called Janicki to find out if he was coming to the police station to meet with Sinclair. Janicki said no because he did not yet have a Legal Aid retainer, but he asked to speak with Sinclair again by phone. Another three minute phone call in a private room with Sinclair followed. And, again, Sinclair told Corporal Leibel that he was satisfied with the call.

Later that day, Sinclair was interviewed for about five hours by Sergeant Skrine, a police officer with training as an interrogator. Before the interview began, Sergeant Skrine confirmed with Sinclair that he had been advised of and had exercised his right to counsel. The officer also warned Sinclair that he did not have to say anything and informed him that the interview was being recorded and could be used in court.

Then, as Skrine began to ask Sinclair harmless questions about his background and upbringing, Sinclair stated that he had nothing to say “until my lawyer’s around and he tells me what’s goin’ on and stuff, like [that]....“ Sergeant Skrine responded: “Fair enough.” He assured Sinclair that he indeed had the right not to speak.

Sergeant Skrine also said that, as he understood the law in Canada, Sinclair had the right to consult his lawyer but that he did not have the right to have the lawyer present during questioning. Sinclair appeared to accept this, and the interview continued with Sergeant Skrine attempting to build trust with Mr. Sinclair while getting some preliminary information.

A short time later, Sinclair again said he was uncomfortable being interviewed in the absence of his lawyer. Sergeant Skrine replied that Sinclair had the right to choose whether to talk or not, but that his right to counsel had already been satisfied by the earlier telephone calls. This explanation seemed to satisfy Sinclair for the time being, and the questioning continued.

That questioning then shifted to the crime itself. Sergeant Skrine focused on the crime scene. He told Sinclair for the first time that police knew it was Grice’s blood on the carpet in his hotel room. Sinclair stated: “Well I choose to say nothing at the moment.” Sergeant Skrine responded “Fair enough,” and he continued to reveal details about the investigation.

Bear in mind that this was ongoing questioning in a confined space — in a small room with no windows — and, on the whole, with no breaks from the questioning.

Shortly after, Sinclair repeated that he was “not talking right now” and that he wanted to speak to his lawyer about “all this.” Sergeant Skrine told him that it was his decision whether to speak or not.

Still, the interview continued in this manner for some time. Four or five times, Sinclair said he wanted to speak with his lawyer and that he intended to remain silent on matters touching on the murder. Each time, Sergeant Skrine emphasized that it was Sinclair’s choice to make.

On one of these occasions, Sinclair expressed uncertainty about what he should do. He said: “Just don’t know what to do right now. And that’s why I say I wanna wait and think and muddle things through my mind and talk to my lawyer and talk to people.... I know you’re tryin’ to do your job. And I do think you’re doin’ a good job, it’s just I just don’t know what to say at the moment.”

Sergeant Skrine began to get the kind of answers he was looking for. Sinclair commented “You already knew all the answers before you even brought me into the room,” and he began to describe what had happened between him and Grice.

According to Sinclair, the two men had been drinking liquor and Grice had been using cocaine in Sinclair’s hotel room. They were both intoxicated. At one point Grice approached Sinclair holding a knife. Sinclair thought that Grice wanted money for another fix and reacted by hitting him over the head with a frying pan. A struggle ensued, and Sinclair ended up stabbing Grice several times and slitting his throat. He disposed of the body and the bloodied bedding in a dumpster.

Later, the police placed Mr. Sinclair in a cell with an undercover officer who was aware that Sinclair had been under lengthy questioning. Sinclair said to him: “They’ve got me, the body, the sheets, the blood, the fibres on the carpet, witnesses. I’m going away for a long time but I feel relieved.” He explained that he would not have to keep looking over his shoulder for the police.

Sinclair also accompanied the police to where Grice had been killed, and he participated in a re-enactment.

The Sinclair Case: The Decision

The Charter rights raised in the Sinclair case are:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right (section 10(b)).

Any person charged with an offence has the right not to be compelled to be a witness in proceedings against himself/herself in respect of the offence (section 7).

Any confession with respect to any charged offence must be informed and voluntary.

The Majority Decision

Chief Justice McLachlin and Justice Charron, as noted, wrote the majority opinion in which Justices Deschamps, Rothstein, and Cromwell concurred, thus making the Court judgment a 5–4 decision. Their primary focus was on section 10(b) of the Charter. If that section could be read as guaranteeing a right to counsel even during police interrogation, that would have been the end of the matter. Sinclair would have won the case. Police denial of the right to his counsel to sit in on the interrogation of Sinclair would have been ruled unconstitutional because it would have violated the Charter.

However, the Court majority did not give section 10(b) that reading. Rather, the majority stated that a “deeper purposive analysis is required.” Essentially, the arrested person has a decision to make in the exercise of his/her section 10(b) right to counsel — whether to co-operate with police interrogation, or not. The Court majority stated:

The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law, but equally if not more important, to obtain advice as to how to exercise those rights.... The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.

Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of section 10(b) and results in a breach of the detainee’s rights.... Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel.

Re-Consult Counsel

In effect, the majority opinion accepted the right of Sinclair to consult counsel in order to understand his rights and what he had to do to affect them. But, in the exercise of these rights, the majority opinion emphasized the need for balance. This seemed to mean that the right to retain and instruct counsel had to be done in the context of allowing police to pursue their legitimate investigative goals. The Court majority stated:

These purposes can be achieved by the right to re-consult counsel where developments make this necessary.... They do not demand the continued presence of counsel throughout the interview process....

The scope of s. 10(b) of the Charter must be defined by reference to its language; the right to silence; the common law confessions rule [section 7]; and the public interest in effective law enforcement in the Canadian context.... We conclude that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview. There is of course nothing to prevent counsel from being present at an interrogation where all sides consent.... The police remain free to facilitate such an arrangement if they so choose, and the detainee may wish to make counsel’s presence a precondition of giving a statement [emphasis added].

Yet, what are some of the conditions which would require police to give the arrested person the right to re-consult counsel? The Court majority stated:

Sometimes developments occur which require a second consultation in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.

The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate.

The Court majority then gave situations when the opportunity to re-consult counsel may be required. The list was not intended to be complete:

(1) New Procedures Involving the Detainee

The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to meet the purpose of section 10(b) to give the detainee the information needed to make a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary.

(2) Change in Jeopardy

Section 10(a) of the Charter requires police to give reasons for detention. And, it is in this context that the individual seeks counsel. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate. To meet the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

(3) Reason to Question the Detainee’s Understanding of his Section 10(b) Right

It may be that the arrested person did not understand her/his right to counsel. If the police are (or reasonably should have been) aware of this, there is a duty to again give that person the right to seek counsel. So, too, if police in their questioning of the arrested person ‘undermine’ the advice counsel has given, there may be a further need to all for re-consultation.

The Court majority continued: “The change of circumstances, the cases suggest, must be objectively observable in order to trigger re-consultation. It is not enough for the accused to assert, after the fact, confusion or the need for help.”

There must be, said the Court majority, “objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to co-operate with the police investigation or refuse to do so.”

In his dissent in the Sinclair case, Justice Binnie would have expanded the category to include all situations where the detainee reasonably requests re-consultation in the course of a custodial interview. He then set out a non-exhaustive list of factors which may provide reasonable grounds for a further consultation for the guidance of police and reviewing courts.

The Court majority stated:

We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to re-trigger the section 10(b) right to counsel.... What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of section 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(b) have been breached.

Duty on the Detainee

In The Queen v. Sinclair, the Court majority made it clear that Sinclair had responsibilities to make effective his section 10(b) rights. He had to assert his Charter rights, or he could “waive” those rights. The Court majority stated:

The police obligations flowing from section 10(b) are not absolute. Unless a detainee [Sinclair] invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended.

Once informed of his right to consult counsel, the detainee may waive the right, deciding not to avail himself of the opportunity to consult that has been provided. The right to choose whether to cooperate with the police, the basic purpose of section 10(b) has been respected in the event of a valid waiver, and there is consequently no breach.

A Right to Silence

Is the right to be silent the same as the right to counsel within the meaning of section 10(b) of the Charter?

To the Court majority in the Sinclair case, the right to retain and consult counsel is related to, but stands independently of, the right to be silent under section 7 of the Charter. The Court majority said:

The section 10(b) right to consult and retain counsel and to be advised of that right supports the broader section 7 right to silence. However, it is not to be confused with the right to silence.

An important purpose of legal advice is to inform the accused about his right to choose whether to co-operate with the police investigation and how to exercise it. Section 10(b) is a specific right directed at one aspect of protecting the right to silence — the opportunity to secure legal assistance [emphasis added].

A given case may raise both section 10(b) and section 7 issues. Where it is alleged under section 7 and the confessions rule that a statement is involuntary because of denial of the right to consult counsel, the factual underpinning of the two inquiries may overlap.... Yet they remain distinct inquiries. The fact that the police complied with section 10(b) does not mean that a statement is voluntary under the confessions rule [that is, a rule as to when and under what circumstances a confession will be deemed voluntary]. Conversely, the fact that a statement is made voluntarily does not rule out breach of s. 10(b). It follows that ... the section 7 right to silence does not resolve the issue on this appeal [emphasis added].

Restoring Power Balance between Police and Detainee?

The majority opinion continued:

Mr. Sinclair argues that the purpose of s. 10(b) is broader than this. In his view, accepted by our colleagues LeBel and Fish JJ. [dissenting], the purpose of section 10(b) is to advise the detainee how to deal with police questions. The detainee, it is argued, is in the power of the police. The purpose of section 10(b) is to restore a power-balance between the detainee and the police in the coercive atmosphere of the police investigation. On this view, the purpose of the right is not so much informational as protection [for the detainee].

We cannot accept this view of the purpose of section 10(b). As will be discussed more fully ... this view of section 10(b) goes against 25 years of jurisprudence defining section 10(b) in terms of the right to consult counsel to obtain information and advice immediately upon detention, but not as providing ongoing legal assistance during the course of the interview that follows, regardless of the circumstances.

We conclude that in the context of a custodial interrogation, the purpose of section 10(b) is to support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult counsel [emphasis added].

Re-Consultation for Sinclair?

The Court majority asked whether the facts called for the opportunity for Sinclair to have a re-consultation with his lawyer — or, putting it another way, whether he should have had the chance to rethink co-operation with the police. The Court majority answered this question in the negative, stating:

Mr. Sinclair’s jeopardy remained the same throughout; he knew from the outset he was facing a charge of murder. The evidence the police told him about did not change the jeopardy he was facing. The police were not requesting his co-operation in a line-up. And as the Court of Appeal held, the police representations as to the strength of the evidence against him do not, without more, raise the need for further consultation with a lawyer.

The only possibility for Sinclair to obtain re-consultation, said the Court majority — on the facts of the case — was if he were “confused” about his choices, of his right to remain silent. The Court majority stated:

The sequence of the interview relevant to this line of inquiry begins with Mr. Sinclair’s reaction to Sergeant Skrine’s statement that the case against him was “absolutely overwhelming.”

To this Mr. Sinclair answered, “I want my lawyer to look through all that.” This can be interpreted as a need for legal advice on the actual strength of the case against him....

Mr. Sinclair continued to ask for legal advice. On one of these occasions, quoted before he expressed uncertainty about what to do, [he stated]: “Just don’t know what to do right now. And that’s why I say I wanna wait and think and muddle things through my mind and talk to my lawyer and talk to people.... I know you’re tryin’ to do your job. And I do think you’re doin’ a good job, it’s just I just don’t know what to say at the moment” [emphasis added].

Read broadly and in isolation, these passages arguably support the allegation that Mr. Sinclair may have been confused about his rights and how he should exercise them. However, read in context, it is clear that Mr. Sinclair never had any doubt about the choices the law allowed him and, in particular, his constitutional right to remain silent. The police did not denigrate the legal advice he had received. Rather, they repeatedly confirmed that it was Mr. Sinclair’s choice whether or not to speak.

After his confession, and the so-called re-enactment, Mr. Sinclair had an exchange with Sergeant Skrine [the police interrogator] which made clear his awareness of the choice he faced and the fact that it went against the advice of his lawyer.

The Court continued its recitation of the interrogation:

Sinclair: Lawyer’ll probably be mad that I told everything out but it’s like whatever....

Skrine: Yeah. Well you know and that’s what I said up front. I mean you’re given advice, but at the end of the day you make the decision right?

Sinclair: Yeah.

Skrine: It’s your decision to make. Um in this country and you know my opinion is you made the right decision right?

Sinclair: Well now there’s closure [emphasis added].

Findings of the Trial Court Quoted

The majority opinion of the Court quoted the following findings of the trial judge, stating that they confirmed that Mr. Sinclair was never confused about his legal options:

“I am satisfied by [Mr. Sinclair’s] own comments that he understood his right was to remain silent, to choose whether to speak or not. Nobody ever tried to tell him that he did not have that right....”

“Mr. Sinclair’s counsel advised him not to discuss anything important with anybody, advised about some of the devices the police might use, including a cell plant, and advised not to say anything ‘because they lie’.”

“The police did not make any attempt to denigrate counsel or the advice he had received from counsel. All they did was confirm that ultimately it was Mr. Sinclair’s decision as to whether he said anything or not.”

‘”I am satisfied that [Mr. Sinclair] is certainly intelligent enough to understand what his situation was and to make his own choices.”

“What, in my opinion, happened in this case is that all of the efforts that Sergeant Skrine made to try and encourage Mr. Sinclair to speak were without avail. Mr. Sinclair stood up to them very well.”

“Ultimately when Mr. Sinclair knew that the body had been found, that is when he decided the game was up and he thought he may as well come clean and he did so, not because anybody offered him anything, because it relieved him of the pressure he was under, the police investigation, not the interview, and as he said himself, the court might look more kindly on him having co-operated and that is why he decided to do the re-enactment as well.”

“After he had made his initial statement, Mr. Sinclair told his cell mate (who was in fact an undercover police officer): ‘They’ve got me, the body, the sheets, the blood, the fibres on the carpet, witnesses. I’m going away for a long time but I feel relieved’.”

The Court majority in The Queen v. Sinclair stated: “We conclude that Mr. Sinclair’s claim that his s. 10(b) Charter rights were infringed has not been made out.”

You Be the Judge

The Case of the Repeated Request

The case that follows is real. The facts are detailed because they bear upon the issues to be decided and because they have some obvious similarity to the Sinclair case.

The Facts

On December 3, 2005, the RCMP arrested Donald Russell McCrimmon at his home in relation to eight assaults against five different women over the past few months. He was alleged to have picked up the women in downtown Chilliwack, British Columbia, driven them to an isolated area, and assaulted them. Two of the women alleged that he had drugged them with what turned out to be chloroform. The offences with which he was charged included assault, sexual assault, assault causing bodily harm, unlawful confinement, and the administration of a noxious substance with intent to cause bodily harm.

At the outset of his arrest, Constable Laurel Mathew advised McCrimmon of the reasons for his arrest, his right to retain and instruct counsel, and his right to remain silent. She told him that he could call any lawyer he wanted, and that he had a right to contact a Legal Aid lawyer through a twenty-four-hour telephone service. McCrimmon stated that he wished to speak to a specific lawyer, a person who had once represented him.

Constable Mathew took McCrimmon to a nearby RCMP detachment where he gave the name of his “preferred” Vancouver lawyer. Constable Mathew called that lawyer’s office but was unable to reach him. However, she left a message on the answering machine. She did not attempt to find the lawyer’s home telephone number, nor did McCrimmon ask her to do so. He said to her: “I don’t know if I’ll hear back from him. Like I said, I only used him once. He’s the only guy I know. I’ve never really dealt with a lawyer before.”

Constable Mathew asked McCrimmon if he would like to call a Legal Aid lawyer, to which he replied: “Well, yes, definitely, but I prefer [the lawyer who once represented me].” McCrimmon then spoke privately with Legal Aid’s duty counsel for approximately five minutes. At the end of his conversation, he confirmed that he was satisfied with the consultation and that he understood the advice provided by duty counsel.

At 5:15 p.m., Sergeant Allan Proulx, an officer with specialized training in interrogation techniques, took McCrimmon into an interview room outfitted with an audio and video recorder and spoke with him for more than three hours. At the outset of the interview, McCrimmon confirmed having spoken with a Legal Aid lawyer, revealing that he had been advised that he did not have to say anything to the police. Sergeant Proulx affirmed McCrimmon’s right to silence, cautioned him that anything he said could be used against him, and commenced the investigative interview.

When the interview began, McCrimmon said he first wanted to speak with his lawyer, though he didn’t mind speaking with Sergeant Proulx. Sergeant Proulx again told McCrimmon it was his choice to speak or keep silent, but that his lawyer would not be allowed in the interview room.

Then, for about ten minutes, Sergeant Proulx explained “the incriminatory nature of potential DNA evidence.” Again, McCrimmon asked to speak with his lawyer. And, again, Sergeant Proulx refused, stating that McCrimmon had already exercised that right in his conversation with duty counsel — advice with which McCrimmon, at the time, seemed satisfied.

McCrimmon did not dispute this but asked to be taken back to his cell. He was not going to answer any more questions. Sergeant Proulx told McCrimmon he did not have to answer questions but that it was his job as a police officer to provide him with the facts.

Sergeant Proulx continued the interview, the purpose of which seemed to be to persuade McCrimmon to discuss the incidents under investigation. He scattered his remarks with references to what the police knew about the incident and referred to witness statements. When pressed for his version of events, McCrimmon emphasized the absence of his lawyer, his sense of feeling “vulnerable without any representation,” and his ignorance of “the legal ways.”

McCrimmon insisted that he would not speak without his lawyer present. He stated: “My voice will be heard in the end, with my lawyer,” and said that he was “adamant about that.” Sergeant Proulx affirmed that McCrimmon had the right to exercise his right to silence and that he did not have “to keep repeating it ... to get that.”

Sergeant Proulx then carried on with long monologues obviously designed to establish a rapport with McCrimmon and elicit information from him. Later, steering the topic of conversation back to the alleged offences, Sergeant Proulx related more details known to the police, prompting McCrimmon to begin describing his version of the events.

As Sergeant Proulx showed photographs of the assaulted women, McCrimmon said he was going to be sick, and he was escorted to the washroom where he threw up. At this point, two hours after the interview had started, McCrimmon began to admit to his involvement in the investigated offences, following Sergeant Proulx’s display of photographs taken by a store security camera. He subsequently made a number of statements implicating himself in the offences. The interview concluded at approximately 8:24 p.m. and McCrimmon was returned to his cell.

The Issues

Was McCrimmon afforded the right to retain and instruct counsel?

Was the confession given by McCrimmon voluntary?

Points to Consider

Section 10(b) of the Charter provides that “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

McCrimmon was afforded the right to contact the lawyer of his choice. As noted, the lawyer was not in, and a message left on the lawyer’s answering machine went unanswered.

McCrimmon was given the choice of speaking with a Legal Aid “duty counsel.” The conversation, by phone, lasted about five minutes. The advice to McCrimmon was essentially to remain quiet in his interview with police.

The interview room where McCrimmon was questioned was a confined space. He asked to be returned to his cell, but this request was denied.

For a confession to be admitted in evidence in a criminal proceeding, it must be “voluntary.” It cannot be forced. The rule relating to confessions is based on the common law. But, it also is reflected in the Charter provisions relating to a fair hearing, such as that contained in section 7 which provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.”

Discussion

The case is The Queen v. McCrimmon, 2010, Supreme Court Cases 36. It was a companion case to The Queen v. Sinclair.

The incriminatory statements of McCrimmon (really statements of confession) were allowed by a majority of the Supreme Court of Canada. Chief Justice McLachlin and Justice Charron spoke for the Court majority. Justice Binnie concurred, and Justices LeBel, Fish, and Abella dissented.

Majority Decision

McCrimmon, said the Court majority, had the opportunity to seek counsel of his choice both in terms of his first choice and, later, in accepting the opportunity to speak with duty counsel for Legal Aid. Moreover, McCrimmon told the police that he was satisfied with the advice he was given.

What makes McCrimmon’s case somewhat different is the question as to whether there were changed circumstances in the course of the police interview. More particularly, as the interview became more focused on the incidents reflecting the alleged crimes and McCrimmon’s claim that he felt vulnerable and in need of counsel, were the police required to give him the right to speak with counsel at that point?

The majority opinion recognized this as a valid issue. But, the question remained whether, on the facts, McCrimmon’s request was valid. This is what the majority opinion stated:

In Sinclair, we explained that a single-occasion rule for consulting counsel will not always fulfill the purpose of section 10(b). A principled and purposive interpretation of the section 10(b) right to counsel requires that detainees should be able to speak to a lawyer again during the course of a custodial interrogation where [as was stated in Sinclair] “a change in circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.” While we noted in Sinclair that the categories of situations in which a change in circumstances triggers a detainee’s right to consult with counsel again are not closed, we did identify three situations currently recognized in which section 10(b) requires a renewed right to consultation with counsel: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe the first information provided was deficient. The question then becomes whether, in this case, there was a change of circumstances of this nature that made it necessary to provide Mr. McCrimmon with a further opportunity to consult with counsel to fulfill the purpose of section 10(b) [emphasis added].

We would also find no breach when Sergeant Proulx continued speaking to Mr. McCrimmon despite the latter’s assertion, immediately when the discussion turned to the incidents in question, that he did not want to discuss the incidents under investigation until he had spoken with his lawyer.... At that point, Sergeant Proulx confirmed with Mr. McCrimmon that he understood it was his choice whether to say anything but that he, Sergeant Proulx, had a lot of information to provide and wanted to get to know Mr. McCrimmon....

Some ten minutes further into the discussion, Mr. McCrimmon stated that he wanted to speak to a lawyer, indicated that he would answer no further questions until he spoke to his own lawyer, and asked to go back to his cell.... Sergeant Proulx explained that it was his job to get to understand Mr. McCrimmon and to provide him with the facts. What followed was essentially a long monologue in which Sergeant Proulx continued to discuss the police investigation in relation to the incidents and tried to establish a rapport with Mr. McCrimmon in an attempt to persuade him to give his side of the story. During this portion of the interview, there was no objectively discernible change in circumstances which gave rise to Mr. McCrimmon’s right to consult again with counsel.

Sergeant Proulx then proceeded to progressively reveal the evidence against Mr. McCrimmon. As described earlier, when pressed for his version of the events, Mr. McCrimmon emphasized the absence of his lawyer, expressing his sense of vulnerability without legal representation and his ignorance of the ‘”legal ways,” and insisted that he would not speak without his lawyer.... As we discussed in Sinclair, the gradual revelation to the detainee of the evidence that incriminates him does not, without more, give rise under section 10(b) to a renewed right to consult with counsel. However, where developments in the investigation suggest that the detainee may be confused about his choices and right to remain silent, this may trigger the right to a renewed consultation with a lawyer under section 10(b).

Arguably, Mr. McCrimmon’s expression of vulnerability and ignorance of the law, when considered in isolation, could indicate such confusion. However, when the circumstances are viewed as whole, it is clear that Mr. McCrimmon understood his right to silence. Sergeant Proulx repeatedly confirmed that it was Mr. McCrimmon’s choice whether to speak or not. It is apparent from Mr. McCrimmon’s interjections in the course of the interview that he understood this. As the trial judge put it: “He clearly discerned which questions might put him in jeopardy and indicated he did not wish to answer those questions.”

We conclude that there were no changed circumstances during the course of the interrogation that required renewed consultation with a lawyer.

Concurring Opinion

Justice Binnie dissented in Sinclair, but he concurred with the majority opinion in McCrimmon. He agreed with the majority view that there were no changed circumstances arising in the police interview that objectively required the opportunity for McCrimmon to speak with counsel. Justice Binnie wrote:

There is nothing in the [interview] transcript to suggest that his requests were “reasonably justified by the objective circumstances.” Mr. McCrimmon says that he wants “the opportunity to have [his] counsel present” and the officer responds that “there’s law that says that doesn’t happen.” General questions about relations with sex workers follow. Mr. McCrimmon says “no comment” on several occasions, clearly understanding his right to silence. He again asks for his lawyer to be present, repeated at [transcript] p. 50, but at p. 52 the police officer says “you don’t have to keep repeating it” and the interview proceeds for a further couple of hours or so without any further request to consult counsel. The officer’s request not to “keep repeating it” may have been a factor in inhibiting further requests, but nowhere in the balance of the interrogation can Mr. McCrimmon flag a point in time or an issue on which a further consultation could be considered ‘reasonably justified by the objective circumstances, which were or ought to have been apparent to the officer: [citing] Sinclair, at para. 80.

It follows that we reject Mr. McCrimmon’s further argument that the trial judge’s failure to recognize a breach of the right to counsel undermined his conclusion that the statement was voluntary. It is important to add, however, as we noted in Sinclair, that the continuation of an interview in the face of the detainee’s repeated expression of his desire for the interview to end and to speak with counsel may raise a reasonable doubt as to the voluntariness of any subsequently given statement. However, it is clear from the trial judge’s reasons that he considered all relevant circumstances in determining that the statements were voluntary, including any subjective impact the refusal of Mr. McCrimmon’s requests to speak to counsel may have had on him. Consequently, we see no reason to interfere with the trial judge’s conclusion on voluntariness.

Dissent

Justices LeBel, Fish, and Abella carried forward their dissent in the Sinclair case: The right to counsel is constitutional. It is embedded in the Charter. It follows that any limitation on that right must be justified. That is, the burden is on the government to justify the limitation of the right to counsel. In that regard, the Court should be more attuned to the nature of custodial investigations — the so called “investigative interview.” It is, said the dissent, a relentless interrogation of a confined suspect.

This is what the dissent, written by Justices LeBel and Fish and concurred with by Justice Abella, stated:

Our particular concern here, as in the companion [appeal] of Sinclair ... is with the effective exercise of the right to counsel by detainees who are subjected to relentless custodial interrogation, even after they have unequivocally and repeatedly invoked their right to silence or to counsel. Both rights, and their meaningful exercise, are integral aspects of a detainee’s pre-trial protections under the Charter. The right to counsel is both fundamental and necessarily broad in scope. While the initial advice to simply keep quiet may suffice at the outset of an interrogation, more substantive advice and assistance may be required as the interrogation progresses.

We do not agree with our colleagues that detainees who, in this context, invoke their right to counsel in order to render more effective their right to silence can be denied either right on the ground that doing so would improperly frustrate the investigative interview. We do not believe that the right to consult counsel depends on the narrow and restrictive finding, in the opinion of the police interrogator, of a manifest or material change in jeopardy....

It is a limitation on the right to counsel, not the exercise of that right, that must be constitutionally justified. We reiterate our objection to any limitation on the s. 10(b) right without constitutional justification and evidence of necessity, and that would depend on the interrogator’s exercise of discretion.

Moreover, a custodial interrogation by any other name remains just that. Characterizing the relentless interrogation of a confined suspect as an “investigative interview” does not transform its true nature and sole purpose. An interview is a conversation between two or more consenting participants who are free to leave as they choose. A relentless custodial interrogation, on the other hand, is an attempt by police officers, who have total physical control of a detainee, to obtain an incriminating statement by systematically disregarding the detainee’s express wish and declared intention not to speak with them. That is the exercise that concerns us here, as it did in Sinclair.

The decisive issue is whether the police can refuse to allow a detainee to consult counsel and, by pursuing their custodial interrogation, render ineffective the detainee’s assertion of the right to silence. Our firm answer to that question is ‘no, they cannot.’

Since detainees have no legal obligation to participate in a custodial interrogation, they can hardly be said to frustrate, impermissibly, any persistent attempts by the police to prevent them from exercising their constitutional right to counsel. There is no police right, under the common law or the Constitution, to the unfettered access to a detainee, for interrogation to the point of confession.

This case illustrates yet again why the right to counsel is not spent upon its initial exercise. It demonstrates the broader role played by counsel even within the relatively narrow confines of a custodial interrogation.

Challenge Question

An Opportunity to Choose?

Stanley James Willier was arrested by police for murder. He was promptly and fully informed of his right to counsel and police facilitated a brief telephone conversation with duty counsel available through Legal Aid.

The next day, when offered another opportunity to speak with counsel, Willier made an unsuccessful attempt to reach a specific lawyer. He was told that the lawyer would not likely call him back before the next day. Police reminded him of the availability of duty counsel and Willier decided to speak with duty counsel a second time, although his preference was the lawyer he had earlier selected. The conversation lasted only a few minutes, after which Willier expressed satisfaction with the advice received. After a brief interval, the investigative interview began.

Q. For our purposes, can it be said that Willier had been given his section 10(b) rights under the Charter?

This reflects another companion case to The Queen v. Sinclair decided by the Supreme Court of Canada: The Queen v. Willier, 2010 Supreme Court of Canada Cases 37. There, a unanimous Supreme Court ruled that Willier had been given his section 10(b) rights. In one sense, the standard used in reaching the Court’s decision, again one handed down by the chief justice and Justice Charron, was that Willier had the choice to speak with police investigators that was both free and informed. But, this should be added: Willier had an individual duty to act diligently in exercising his right to choose counsel — after having been informed of his right to do so.

For discussion purposes, we set out parts of the Court’s decision:

The informational duty imposed on the police is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding.

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

Thus, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, section 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then....

Detainees who choose to exercise their section 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel.... What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole....

Such a limit on the rights of a detainee are necessary ... because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society.

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, section 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation.... If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: The Queen v. Ross, [1989] 1 Supreme Court of Canada Reports 3. As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exercise of the right to counsel of choice (pp. 10–11):

“Although an accused or detained person has the right to choose counsel, it must be noted that ... a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police ... are suspended. Reasonable diligence in the exercise of the right to choose one’s counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.’’

What If?

Suppose a police confession is obtained in violation of section 10(b) of the Charter. Does it follow that the confession cannot be used in evidence in a later criminal trial?

It does not. The Charter conditions the exclusion of evidence obtained in violation of its provisions in section 24(2) which provides: “Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

In the McCrimmon case, discussed in “You Be the Judge: The Case of the Repeated Request,” the dissent discussed the potential role of section 24(2). They stated:

In determining whether the admission of evidence obtained by way of a Charter breach would bring the administration of justice into disrepute, the court must weigh three factors:

(1) the seriousness of the Charter-infringing conduct;

(2) the impact of the breach on the accused’s Charter-protected rights and interests; and

(3) society’s interest in the adjudication of the case on its merits.

Our analysis in Sinclair is equally applicable in this case. We nonetheless think it necessary to add the following observations.

Sergeant Proulx (the police interrogator) proceeded on the basis of his understanding of the law as it stood at that time, and was therefore acting in good faith. However, like the interrogating officer in Sinclair, Sergeant Proulx acted as if he was entitled to Mr. McCrimmon’s statement — that he was entitled to have his side of the story. Sergeant Proulx therefore not only denied Mr. McCrimmon his right to counsel. In doing so, Sergeant Proulx also explicitly refused to accept and respect Mr. McCrimmon’s assertion of his constitutionally-entrenched right to silence.

The officer’s Charter-infringing conduct was therefore serious, and that conduct had a serious impact on Mr. McCrimmon’s Charter rights.

Accordingly, we would exclude Mr. McCrimmon’s statement pursuant to section 24(2) of the Charter.

Challenge Questions

Confessions on False Evidence

Suppose police use non-existent evidence to obtain a confession. For example, suppose police say to the person being questioned that they have an eyewitness who has definitely identified the person being interrogated as the shooter in a homicide. In fact, however, police do not have such a witness. They are using this “story” to obtain a confession — and they succeed. The person being interviewed confesses.

Q. Is there a risk that the confession may be ruled invalid on the ground that it may breach the rule allowing an individual to remain silent? Or, may the confession be ruled invalid in that it may deny the individual a further right to counsel?

There is a risk on both points. In the Sinclair case, the Court majority stated:

We note that our colleagues LeBel and Fish JJ. express concern that these reasons in effect create “a new right on the part of the police to the unfettered and continuing access to the detainee for the purposes of conducting a custodial interview to the point of confession.”

We do not agree with the suggestion that our interpretation of section 10(b) will give [such power] to the police. This argument overlooks the requirement that confessions must be voluntary in the broad sense now recognized by the law. The police must not only fulfill their obligations under section 10(b); they must conduct the interview in strict conformity with the confessions rule. On this point, we disagree with Binnie J.... The confessions rule is broad-based and clearly encompasses the right to silence. Far from truncating [limiting] the detainee’s constitutional right to silence, its recognition as one component of the common law rule enhances the right as any reasonable doubt on the question of voluntariness must result in the automatic exclusion of the statement....

Our colleagues LeBel and Fish JJ. also assert that our approach is such that the detainee is effectively forced to participate in the police investigation. The suggestion is that the questioning of a suspect, in and of itself, runs counter to the presumption of innocence and the protection against self-incrimination. This is clearly contrary to settled authority and practice.

In our view, in defining the contours of the section 7 right to silence and related Charter rights, consideration must be given not only to the protection of the rights of the accused but also to the societal interest in the investigation and solving of crimes. The police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime. While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say, in our respectful view, would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone.

Editorial Comment

The Globe and Mail made the following editorial comment on the Sinclair and McCrimmon cases under the title “A Right Diminished.” The Globe critique was based on the paper’s understanding of the right to counsel and to remain silent as set out in the Charter of Rights and Freedoms.

The right to counsel and the right to silence have been taken out to the parking lot and given a good working over — by the Supreme Court of Canada, no less. Both these rights are intimately connected to the core premise of Canadian justice: that the state bears the burden of proving an individual’s guilt. Our highest court has unjustifiably and surprisingly weakened those rights.

In one case before the court, a British Columbia man accused of murder was put through several hours of interrogations, during which he repeatedly asked to speak with a lawyer. In a separate case, a B.C. man, accused of a series of assaults on women, tried over and over again to invoke his right to silence and a lawyer. In both cases, the men had spoken briefly, over the telephone, to a lawyer before being questioned. Having done so, they had, in effect, exhausted their right to counsel.

Section 10(b) of the Canadian Charter of Rights and Freedoms reads: “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” But a majority of the nine-member court — six judges — says that the initial phone call is enough, unless something has changed during the interrogation to justify another call. As for what that change is, consult a constitutional scholar — it is now beyond the average person’s ability to understand. Simply being questioned for several hours in the middle of the night while being refused the right to return to one’s cell is not deemed reason enough to have a lawyer present.

The only instruction that now makes sense for an anticipated interrogation, Mr. Justice Ian Binnie wrote in dissent in one case, is “You have reached counsel. Keep your mouth shut. Press one to repeat the message.”

Detainees have no legal obligation to participate in a custodial interrogation, other dissenters, going even further, said. How can they be in the wrong in asking for their constitutional right to counsel?

The Charter’s right to counsel, even the right to silence, no longer seems to say what it means. In practical terms, it will be easier for police to find incriminating information. But in the end, the Charter rights to silence and to counsel have been undermined (Globe and Mail, October 9, 2010).

You Be the Judge

Citizen’s Arrest

Ordinarily, there is a public expectation that arrests are made by police. However, the law provides for what might seem to be an exception. Citizens seeing or experiencing a crime may make an arrest in the absence of police.

The Facts

It was May 23, 2009 in Toronto’s Chinatown. On a video camera, David Chen, owner of the Lucky Moose Food Mart, spotted a shoplifter who had taken some plants (later valued at seventy-two dollars) and run away. About an hour later, the shoplifter returned. Chen approached him and asked for payment for the plants taken.

The alleged shoplifter, later identified as Anthony Bennett, refused. He ran from the store. Chen and two employees chased and caught him. They bound him and notified police.

The Chinatown area had been the site of numerous shoplifting incidents. Frequently police were notified but, apparently because of the number of other calls received, they were not always able to respond promptly. In any event, Bennett was later charged by police and he pleaded guilty to shoplifting. He was sentenced to thirty days in jail.

Our concern, however, goes to charges pressed by police and the Crown against Chen. He found himself faced with charges of kidnapping, carrying a dangerous weapon (a box cutter), forcible confinement, and assault. His trial and court decision came a year later.

The Issue

Did Chen make a lawful citizen’s arrest?

Points to Consider

If Chen were a security guard, he could do no more than make a citizen’s arrest. So, the issue remains: Did Chen make a lawful citizen’s arrest?

Chen, with the help of his two employees, caught and restrained Bennett an hour after he allegedly took the plants from Chen’s store. And, he caught Bennett in a chase from the store.

Bennett resisted being restrained. He was tied and placed in a van by Chen and his two employees until police arrived in response to a call from Chen.

A citizen’s arrest generally must take place close in time to the commission of the claimed crime.

Discussion

Justice Khawly, the trial judge, acquitted Chen. Before a crowded courtroom, he rejected the argument of the Crown that there was a time lapse between the first theft by Bennett and his later return to the store. If there were a substantial lapse, then it could be argued that Bennett really was in the process of committing a second crime — an offence apparently that he did not complete. If this theory were accepted, it followed that Chen had no power to make a citizen’s arrest.

Justice Khawly called the Crown argument a “red herring.” He deemed the return of Bennett to the store part of a “continuing theft — pure and simple.” Thus, on the findings of fact, Chen was empowered to make a citizen’s arrest.

More to the point, perhaps, the judgment of the court reflected the authority of the trial judge to make findings of fact which are difficult to overturn on appeal — unless they are clearly erroneous.

A Larger Problem?

Justice Khawly was sensitive to problems of theft in Chinatown and the difficulties of police in responding to shoplifting complaints. In a lengthy opinion, he asked: “Is Chen’s community sending a message of vulnerability in the face of perceived police inaction? However unfair or unfounded, is that not really what stoked the embers of this case?”

Citing the “broken windows” theory, by which communities lose faith in the rule of law when minor crime goes unpunished, the judge suggested that Chen “tried to fill the void where the justice system failed,” and asked if Chen could “after all, not be the canary in the coal mine?”

Mark Pugash, spokesman for Toronto police, said he understood the concern, but insisted that police take theft seriously; it’s just a matter of prioritizing calls. He said:

I have no doubt that if I were a merchant being plagued by that, I’d want to be able to pick up the phone and I’d want people to be there immediately, [but] most people understand we have to prioritize our calls. So if we get a call that you’re getting beaten and we get another call that says, “Someone stole something from me,” I think people would want us to treat crimes of violence or threat of violence more seriously.”

A “Limited” Government Response?

The federal government responded to merchant concern for more police protection by an amendment to the Criminal Code in 2013. Referred to as the “Lucky Moose Bill,” it allows citizens and store owners more leeway in protecting themselves and their property. For example, a citizen’s arrest need not take place exactly at the time of the crime. It could occur within a “reasonable time” of the crime, and if there is no police officer immediately available. Further, citizens and store owners can defend themselves if they believe they or their property are at “risk.”

Obviously, there are questions that can arise:

How much time is covered by “reasonable time”?

What is the extent to which citizens or store owners may go in defending themselves or their property?

Protecting the “Vulnerable”

Police often are the individual’s first point of contact with the criminal process. They investigate possible criminal violations, and they can detain, arrest, and lay charges against those believed to have violated the criminal law. Police can be seen as the community’s first formal agency in bringing the accused to the “dock” — or not.

There are special rules binding on police in dealing with the young. For the most part, the rules for police conduct, or interface, with the young, are set out in the Youth Criminal Justice Act (YCJA).

As a preliminary matter, two points are made:

The rules of conduct for police under the YCJA are mandatory and police must follow them. If they fail to do so, they (or, more particularly, the Crown prosecutor) may find the case against the accused significantly weakened because evidence derived through improper police procedures might be thrown out by the court.

The YCJA, in its interpretation and enforcement, must conform to the Charter of Rights and Freedoms which, as we have noted, is part of the Constitution of Canada.

There is a protective shield for youths at the point when they are detained or arrested by police. That shield gives them greater rights than adults may claim under similar circumstances. The reasons underlying their establishment were set out by the Supreme Court of Canada in L.T.H. v. The Queen, 2008 Supreme Court of Canada Reports 49. Justice Fish, speaking for the seven-member Court majority, said:

Young persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate. Parliament has for that reason provided them by statute with a complementary set of enhanced procedural safeguards in §146 of the Youth Criminal Justice Act, Statutes of Canada 2002, chapter 1 (YCJA), which governs the admissibility of statements made to persons in authority by young persons who are accused of committing offences.

These rights apply to all young persons between the ages of twelve and eighteen. They are cast in terms of procedural rights — such as the right to have counsel and/or an adult present before making a statement to the police. The failure to comply with these procedural rights can have real consequences: The Crown may be denied the right to introduce such statements in evidence against the accused.

While the intent of the YCJA seems clear — protect “vulnerable” youngsters from police interrogation until they obtain the assistance of counsel or an adult — there are a number of questions that arose in the L.T.H. case. They include:

What must police do to obtain a waiver of a young person’s right to the assistance of counsel or an adult?

Will a young person give up the right to counsel or the advice of an adult simply by making a clear statement to that effect?

Can police assume that a young person knows his/her rights to counsel or assistance of an adult if that individual has had frequent contact with the police?

Does the seriousness of the offence have any bearing on whether a trial judge will forgive police errors in obtaining a lawful waiver by a young person of the right to counsel or the advice of an adult?

The Facts of L.T.H. v. The Queen

By the time the Supreme Court of Canada handed down its decision in L.T.H. v. The Queen, the accused was no longer a youth within the meaning of the YCJA. He was nineteen, and it was four years after the events that gave rise to the Court’s decision. (This “coming of age” — being a young offender at the time of arrest, and moving to adult status at the time of final judgment — is not unusual in YCJA criminal cases.)

L.T.H., then fifteen, was arrested in the early morning hours of August 8, 2004, by the RCMP in Cole Harbour, Nova Scotia, following a car chase that ended only when his car caught fire and was brought to a stop. Initially, L.T.H. was charged with dangerous driving. Then, he was transferred to the Halifax Regional Police Service where the charges against him increased. They included theft, possession of property obtained by crime, and failing to stop — as well as the original charge: dangerous driving.

L.T.H. was taken into custody by police at about 5:00 a.m. He was asked several times if he wanted the help of a lawyer. Each time, he refused such assistance.

Several hours after the arrest, L.T.H. was taken from the Cole Harbour police station to the Dartmouth police station where he slept for a few hours. Then he was transferred to the Halifax police station where he was interviewed by Constable Jeffrey Carlisle. The constable had a young offender police statement form that he reviewed with L.T.H.

It is important to note that the interview was videotaped; and that tape was made available by the Crown to the trial court judge, the appellate court, and, with the consent of Crown counsel and L.T.H.’s lawyer, to the Supreme Court of Canada, which reviewed it in the appeal that gave rise to the decision of the Court.

The Interview and the Waiver

This was not the first time that police had interviewed L.T.H. Indeed, in the hearing before the trial judge, L.T.H.’s mother said she had warned the police at the time of his arrest that her son had a learning disability — one which made it difficult for him to understand the questions put to him. She said that in earlier encounters with the police, it had been necessary for her to “explain” the questions and their meaning to her son.

Still, Constable Carlisle pressed on with the interview of L.T.H. He read from questions in the form that included a statement of an accused young offender’s rights. He asked L.T.H. if he understood his rights. He answered: “Yes.” The constable asked L.T.H. if he wanted to call a lawyer or talk with a lawyer in private. He answered: “No.” L.T.H. also answered that he did not want a parent or “another appropriate adult” present while he was giving a statement or while he was questioned.

This is not to say that L.T.H. was “frozen” in his replies. He did assert himself. At one point, he interrupted Constable Carlisle’s reading of the form and said he was “not going to answer all of the questions” asked.

Constable Carlisle responded that the questions were only of the “do-you-understand” type. L.T.H. raised no further objection to the questioning, and Constable Carlisle continued. He finished reading the “waiver-of-rights form,” which L.T.H. initialed. L.T.H. then signed a waiver of rights.

At that point, police took a statement from L.T.H. who confessed to actions that formed the basis of the Crown’s case against him.

A “Technicality”?

Counsel for L.T.H. challenged the waiver and the trial judge agreed. She ruled that the statement could not be received in evidence. The Crown presented no further evidence. The result: The charges against L.T.H. were dismissed. An acquittal was ordered.

The trial judge accepted that L.T.H.’s statement was voluntary. But, that was not enough. She said that the YCJA sets additional requirements for a youth to give a lawful waiver. In this regard, the trial judge said she was not convinced beyond a reasonable doubt that L.T.H. understood his rights and the consequences of waiving them.

The Crown appealed the decision of the trial judge. The Nova Scotia Court of Appeal allowed the appeal. It set aside the acquittal and ordered a new trial. The Court of Appeal ruled that the Crown must prove beyond a reasonable doubt that the young person was given a clear and proper statement of rights and choices under the YCJA.

But, said the Court of Appeal, the Crown does not have to prove that the young person in fact understood those rights. In this regard, the Court of Appeal acknowledged that actual (or subjective) understanding of such waiver rights is required by the YCJA.

But, having said this, it is another matter to state the level of proof required to show such understanding. That is, how does one prove actual understanding? Here, the Court of Appeal said that the Crown must prove waiver on a balance of probabilities. This is a lower standard of proof than beyond a reasonable doubt.

The Role of Videotapes

What role could the videotape play in the appeal of L.T.H.?

Section 146 of the YCJA requires that the statement of a young person be taken either by videotape or in writing. With L.T.H., the statement was taken by videotape.

The videotape would allow the Court to see the demeanour of the constable and L.T.H.. By that, we mean the Court could see some indications as to whether the constable intended to communicate with L.T.H. and if he succeeded in that regard.

The Court would see that the constable apparently intended not to make eye contact with L.T.H. Further, the Court would be able to see that the constable rushed the waiver questions. (If the waiver were based solely on the written statement, there would be no indication, as such, that the waiver questions were rushed.)

In terms of L.T.H., the videotape apparently allowed one to observe that L.T.H. did not seem to take the police interview seriously. This, in turn, allowed the Court to infer that, as a young offender, he was all the more in need of the advice of a lawyer and/or an adult. With more pointed and sensitive police questioning — especially after having been given some warning by L.T.H.’s mother concerning her son’s learning difficulties — there might have been greater awareness of how much more was required to ascertain whether there had been any knowing waiver by L.T.H.

The Supreme Court Decides

The decision in the L.T.H. case was appealed to the Supreme Court of Canada. The matter was heard and decided by a seven-member panel of the Court. All members of the panel agreed with the result, though three of the justices disagreed with the test that led to that result.

For all the justices, the issue to be decided was not one of “mere technicality.” The statement of principles in the YCJA was quoted by Justice Fish, who spoke for the Court majority. He wrote:

Section 3(b) of the YCJA ... provides that the criminal justice system for young persons must be separate from that of adults and emphasize the following ... (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

The procedural rights set out in §146 represent one instance of the enhanced protection Parliament has seen fit to provide for young persons. The relevant parts of §146 provide that no statement by a young person to a person in authority will be admissible in evidence against that young person unless: (1) the statement was voluntary (§146(2)(a)); (2) the person who took the statement “clearly explained to the young person, in language appropriate to his or her age and understanding,” the young person’s right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview) (§146(2)(b)); and (3) the young person was given a reasonable opportunity to exercise those rights (§146(2)(c)).

Finally, §146(4) provides that young persons, subject to certain conditions, can waive their right to consult counsel and an adult before making the statement and can also waive the right to have counsel and the adult present when the statement is made.

There is purpose to the procedural protections of the YCJA. Justice Fish recited the Court’s view of Parliament’s reasons for enacting section 146 of the YCJA. He wrote:

This Court has consistently held that the rationale for §146, and its predecessor, lies in Parliament’s recognition that young persons generally do not understand their legal rights as well as adults, are less likely to assert those rights in the face of a confrontation with a person in authority and are more susceptible to the pressures of interrogation.... Given the purpose of the provision, it would be inconsistent to find that the statutory requirements of §146 will be complied with whenever a clearly worded form is read to a young person [emphasis added].

Even before the enactment of the YCJA and its predecessor, trial courts recognized that statements made by young persons should be treated differently than statements made by adults. In The Queen v. Yensen, [1961] Ontario Reports 703 (High Court), for example, McRuer (Chief Judge High Court) held that the interrogating officer must “demonstrate to the Court that the child did understand the caution as a result of careful explanation and pointing out to the child the consequences that may flow from making the statement.”

Recognizing Reality

At the same time, Justice Fish said that the trial court should not turn its head away from reality. He wrote:

The requirement of understanding and appreciation applies to all young persons, including those who are no strangers to the criminal justice system. Section 146(2)(b) incorporates principles of fairness that must be applied uniformly to all without regard to the characteristics of the particular young person.

This does not mean that experience in the criminal justice system is irrelevant to the inquiry as to the young person’s understanding. An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding.

Police officers, in determining the appropriate language to use in explaining a young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

In effect, the police are required to take the individual measure of the young person. Generalities, alone, will not do.

The Basis for the Majority Test

It was the view of the majority in the L.T.H. case that the test of beyond a reasonable doubt set out in section 146 reflected both the common law and the requirements of section 10 of the Charter. This is how Justice Fish stated the matter:

Section 146 gives statutory expression to common law rules and constitutional rights that apply to adults and to young persons alike. It provides, for example, that no statement by a young person to a person in authority will be admissible in evidence against that young person unless it is voluntary. And it reaffirms the right to counsel enshrined in section 10 of the Canadian Charter of Rights and Freedoms.

Parliament has recognized in this way that the right to counsel and the right to silence are intimately related. And that relationship is underscored in §146 by the additional requirements that must be satisfied in order for statements made by young persons to be admissible against them at their trials. Parliament has in this way underscored the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.

Accordingly, §146 provides that statements made by young persons are inadmissible against them unless the persons who took them “clearly explained to the young person, in language appropriate to his or her age and understanding,” the specific rights conferred by §146. This condition of admissibility has been referred to as the ‘informational requirement’ of §146 and it raises two questions that, again, are intimately related [emphasis added].

The first is whether the Crown must prove not only that the necessary explanation was given in appropriate and understandable language, but also that it was in fact understood by the young person who made the statement. The second is whether compliance with the informational requirement must be proved by the Crown beyond a reasonable doubt, or only on a balance of probabilities.

Because of their interdependence, ... I would answer both questions together. In my view, the Crown’s evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under §146 of the YCJA. A mere probability of compliance is incompatible with the object and scheme of §146, read as a whole. Compliance must be established beyond a reasonable doubt.

Finally, §146 provides that young persons, subject to certain conditions, can waive their right under that section to consult with counsel and an adult relative before making a statement and their right to have counsel and the relative present when the statement is made. As we shall see, an unbroken line of authority, beginning with Korponay v. Attorney General of Canada, [1982] 1 Supreme Court of Canada Reports 41, establishes that a waiver must be established by “clear and unequivocal [evidence] that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process”.... Manifestly, where Parliament has specifically sought to endow young persons with enhanced procedural protections, this high standard has not been satisfied if the court is left with a reasonable doubt whether the requirements set out in Korponay and subsequently reaffirmed, have been met.

I hasten to add, however, that this exacting standard should not be taken to impose on the Crown a burden that it cannot properly be expected to discharge. Where compliance with the informational component is established beyond a reasonable doubt, the trial judge will be entitled — and, indeed, expected — to infer, in the absence of evidence to the contrary, that the young person in fact understood his or her rights under §146.

In this case, the trial judge was not satisfied that the Crown discharged its burden under §146 of the YCJA. She therefore found the appellant’s statement inadmissible and ultimately entered an acquittal. The Court of Appeal disagreed. For the foregoing reasons, and the reasons that follow, I would allow the appeal and restore the appellant’s acquittal at trial.

In Conclusion

Courts can and do review police investigations, especially where questions arise as to whether police have complied with rights afforded all Canadians under the Charter of Rights and Freedoms. In general, it might be said that court review means looking to the reality of what happened — not to the legalisms, but to the real facts. For example, it doesn’t matter that police might call their questioning of what amounts to be a suspect merely an informational chat when the reality is that the “chat” is in-depth questioning.

The burden to provide real Charter rights is not placed solely on the police. The person being questioned must assert his or her own claim, for example, to the right to counsel — once police have made it known (as they must) that such a right exists.

Finally, it must be understood that the Charter does not void, as such, any police violation of rights afforded all Canadians. Recall section 24(b) of the Charter that provides: “Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

References and Further Reading

* Cited by the Supreme Court of Canada

Allen, Ronald J. “Miranda’s Hollow Core.” Northwestern University Law Review 100 (2006): 71.*

Appleby, Timothy. “Toronto Shopkeeper Welcomes Changes to Citizen’s Arrest Laws.” Globe and Mail, February 17, 2011.

“A Right Diminished.” Globe and Mail, October 9, 2010.

Bailey, Ian. “Cops with Cameras Future of Policing — Vancouver Chief.” Globe and Mail, December 20, 2009.

Cassell, Paul G. “Miranda’s Social Cost: An Empirical Reassessment.” Northwestern University Law Review 90 (1995–95): 387.*

Cassell, Paul G. and Bret S. Hayman. “Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda.” U.C.L.A. Law Review 43(1995–96): 839.*

Cassell, Paul G. and Richard Fowles. “Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement.” Stanford Law Review 50 (1997–98): 1055.*

“Citizen’s Arrest Canada: New Rules Come Into Effect.” Canadian Press, March 11, 2013.

Godsey, Mark A. “Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings.” Minnesota Law Review 90 (2006): 781.*

Leo, Richard A. “Inside the Interrogation Room.” Journal of Law and Criminology 86 (1996): 266.*

Makin, Kirk. “No Right to Counsel During Interrogation.” Globe and Mail, October 9, 2010.

Newfoundland and Labrador. The Lamer Commission of Inquiry in the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes, St. Johns: Government of Newfoundland and Labrador (2006).*

“No Right to Counsel in Police Interview: Top Court.” CBC.ca, October 8, 2010.

Reinhart, Anthony and Anna Mehler Papering. “Shopkeeper Learns His Lesson in Acquittal.” Globe and Mail, October 29, 2010.

Schulhofer, Stephen J. “Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs.” Northwestern University Law Review 90 (1996): 500.*

Stewart, Hamish. “The Confessions Rule and the Charter.” McGill Law Journal 54 (2009): 417.*

Stuesser, Lee. “The Accused’s Right to Silence: No Doesn’t Mean No.” Manitoba Law Journal 29 (2002): 149.*

Tibbetts, Janice. “No Right to Lawyer During Police Interrogation: Supreme Court.” National Post, October 9, 2010.

“Toronto Chinatown Grocer Found Not Guilty.” CBC.ca, October 29, 2010.

Ward, John. “No Right to a Lawyer During Interrogation, Supreme Court Rules.” Globe and Mail, October 8, 2010.

Weisselberg, Charles D. “Mourning Miranda.” California Law Review 96 (2008): 1519.*

Younger, Evelle J. “Results of a Survey Conducted in the District Attorney’s Office of Los Angeles County Regarding Effect of the Miranda Decision upon the Prosecution of Felony Cases.” American Criminal Law Quarterly 5 (1966–67): 32.*

Chapter 2

Unseen Searches

How can there be a search without a search warrant? How can police obtain information about a suspect without that person’s knowledge, with only the police being aware of the facts gathered?

Here we are not speaking of banking information or the kind of data one submits in completing required information such as tax returns. Think, for example, of the use of aircraft or drones equipped with special cameras and other equipment that can peer inside a home or an office. They can then test for and gather information relating to activity, or the inference of activity, such as the use of electricity far beyond that normally required for similar homes or offices. A question that arises is whether such information can be used to present to a judicial officer in order to obtain a search warrant for police to enter that home or office and search for drug manufacture.

The lead case in this chapter, The Queen v. Walter Tessling, [2004] 3 Supreme Court of Canada Reports 432, was used by police to support a request for a search warrant that was granted and, in turn, led to finding illicit drugs. Charges were laid and a conviction obtained. The facts of that case will be set out shortly. Again, it must be emphasized that the initial information obtained by the police was secured without a search warrant.

Government, including the police, is bound by the Charter of Rights and Freedoms, part of the Constitution of Canada. Section 8 of the Charter provides: “Everyone has the right to be secure against unreasonable search and seizure.” However, the Charter also provides that even unlawfully obtained evidence can be used in criminal proceedings if it does not bring the administration of justice into disrepute (section 24).

We will find, however, that in the Tessling case, as well as in cases featured in the “You Be the Judge” exercise in this chapter, the primary question for the most part is whether the initial gathering of information, in itself, was a search and thus subject to the requirements of section 8 of the Charter. The government took the view that the information gathered was not private to the accused. Rather, it was public, and thus available to all — if they only had the devices to obtain it.

In Tessling, the trial court allowed the use of the contested information to obtain a search warrant that led to charges and conviction. The Ontario Court of Appeal ruled that the evidence initially obtained by the police was improper. It set aside the conviction. However, the Supreme Court reversed the ruling of the Court of Appeal and sustained the decision of the trial court.

Among the questions raised in this chapter are:

Is there a single test for determining whether information is protected by the safeguards of section 8 of the Charter against unreasonable search and seizure?

What role does the “privacy” of the individual play in defining search criteria?

On what basis is “privacy” defined? Does the law of search and seizure look to whether, as a hypothetical matter, one’s privacy might be invaded by a warrantless search? Or, is the question of whether a search has occurred based on the “here and now” facts, rather than how the science of probing might develop?

You will find that the Court places considerable emphasis on the facts of each case both in developing and applying principles of law:

The “You Be the Judge” exercises feature cases which came before the Supreme Court of Canada. The first case, concerning a marijuana grow-op, deals with police access to utility company records disclosing how much electricity the accused used, and how that total compared with homes of comparable size in the community. The second case concerns police installation of a video “bug” in a hotel room to gather evidence of illegal gambling. Now, on to the facts of Tessling.

The Facts of the Queen v. Tessling

In February of 1999, the RCMP began investigating the accused and, in particular, his home in Kingsville, a small town in southern Ontario. Two informants had reported to police that the accused and a “colleague” called Ken were producing and trafficking in marijuana (a controlled substance). One informant, the RCMP stated, was a “source whose credibility was untested.” The second informant, however, was one the RCMP characterized as a “proven source.” That person told the RCMP that a known drug dealer was buying large quantities of drugs from Ken in the area where the accused lived. But, the second informant did not directly tie the accused with the alleged drug transactions.

The RCMP contacted Ontario Hydro to find out if there was any unusual electricity usage at the properties owned by the accused or Ken. But the reply from Ontario Hydro was that, according to the metered supply, electricity usage was normal. The police then did visual surveillance of the questioned properties. The results were negative. Nothing suggested a marijuana grow-op. Still, the investigation continued.

The RCMP then used a thermal imaging device to take a “heat” picture of the home of the accused from an overhead aircraft. The camera, using Forward Looking Infra-Red (FLIR) technology, recorded not patterns of light but the distribution of heat over the surface of the building. The RCMP did not obtain a search warrant for the overflight.

The FLIR camera cannot “see” through the external surfaces of a building. (It is “off-the-wall” as opposed to “through-the-wall” technology.) However, the substantial amounts of heat generated by marijuana growing operations must eventually escape from the building. The FLIR camera creates an image of the distribution of escaping heat at a level of detail not apparent to the naked eye. A FLIR image, put together with other information, can help the police get reasonable and probable grounds to believe that a marijuana growing operation is in residence. And that standard, once met, is enough to satisfy a court in granting a search warrant.

And so it was in this case. The RCMP were able to obtain a warrant based on the results of the FLIR image of the home of the accused, coupled with the information supplied by the two informants. When the RCMP entered the home, they found a large quantity of marijuana, two sets of scales, freezer bags, and several guns.

The street value of the marijuana was between $15,000 and $22,500. The accused was charged with a variety of offences, to which his response was that the FLIR overflight was a violation of his Charter rights and that the police should therefore never have been granted a search warrant based in part on the FLIR image. Accordingly, in the absence of a valid search warrant, he argued that the evidence obtained by the police from inside the house should be excluded. Since there was then insufficient evidence to support the convictions, he argued that he should be acquitted.

The Supreme Court Decides

The central issue in the Tessling case is whether the FLIR overflight was a search within the meaning of section 8 of the Charter. (In this regard, bear in mind that Charter rights are those granted to individuals against government action.)

To answer that question, the Supreme Court first set out the value, or interest, that section 8 is designed to protect.

Broadly stated, the Court held, in a unanimous opinion by Justice Binnie, that the interest held is privacy — restraints imposed on government with regard to prying into the lives of citizens. This is a value, the Court has declared, that “goes to the essence of a democratic state.” Justice Binnie stated:

Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. As La Forest J. stated in The Queen v. Dyment, [1988] 2 Supreme Court of Canada Reports 417, at pp. 427–28, “the restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”

The midnight knock on the door is the nightmare image of the police state. Thus it was in 1763 that, in a speech before the British Parliament, William Pitt (the Elder) famously extolled the right of everyone to exclude from his private domain the forces of the King: “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter, the rain may enter, but the King of England cannot enter! All his force dares not cross the threshold of the ruined tenement!”

It is perhaps a long spiritual journey from Pitt’s ringing pronouncements to [Tessling’s] attempt to shelter a marijuana grow-op in the basement of his home in Kingsville, Ontario, but the principle is the same. Building upon the foundation laid by the common law, section 8 of the Charter creates for “everyone” certain areas of personal autonomy where “all the forces of the Crown” cannot enter. These areas we have now gathered up under the general heading of privacy.

Striking a Balance: Privacy and Community Protection

The history of the protection of individual privacy has its roots in the law of private property and trespass. Government agents might watch from a distance, but if the curtains of the home are drawn (or the drawbridge of the castle pulled), they had no right to enter without a warrant. The agents of government had no way of finding out what went on inside the home (or the castle). Yet, the Supreme Court noted:

As technology developed, the protection offered by property rights diminished. Wiretaps, for example, require no physical intrusion, but can be implemented at a distance. FLIR images can be taken from an airplane. The courts were reluctant to accept the idea that, as technology developed, the sphere of protection for private life must shrink. Instead, it was recognized that the rights of private property were to some extent a proxy for the privacy that ownership of property originally conferred, and therefore, as the State’s technical capacity for peeking and snooping increased, the idea of a protected sphere of privacy was refined and developed. The perspective adopted by the Court ... accordingly, is that section 8 “protects people, not places.”

But privacy is not the sum total for passing on the legality of government searches. There is another, sometimes countervailing, legitimate societal goal: safety, security, and the suppression of crime. The right to privacy may have to be weighed and balanced against the need for societal security. Justice Binnie cited an earlier decision of the Supreme Court of Canada in which it was stated: “An assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.”

But, how is that balance to be determined? Justice Binnie, citing other Supreme Court decisions, said the primary approach should be determining under all the circumstances — that is, the facts of the case — just what were the individual’s reasonable expectations of privacy. And, such a determination must be made based on: (1) what the individual subjectively believed, and (2) the “objective reasonableness of the expectation.”

Privacy Interests

How these tests or principles will be applied in part is determined by looking at the particular privacy interest involved. That is, one privacy interest may have a higher claim for protection than another interest. In this regard, the Court listed three kinds of privacy interests: personal, territorial, and informational. Let’s examine each interest to get an idea of the scope of protection. But, in doing this, it is also important to recognize that the facts of any one case may bring an overlap between interests. In Tessling, the facts centred on an overflight of Tessling’s home to measure escaping heat. Tessling himself was not the subject of a search without a warrant.

Personal privacy. This, said Justice Binnie, has the strongest claim to constitutional protection because it protects bodily integrity and, in particular, the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal. Thus, Justice Binnie continued: “The State cannot conduct warrantless strip searches unless they are incident to a lawful arrest and performed in a reasonable manner ... in circumstances where the police have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.... Nor may the police take bodily samples without authorization.”

Territorial privacy. This also has a high claim to protection. Its centre is the home which legal tradition, cited above, has long protected against warrantless searches. Yet, move from the home to other “territory” and the intensity of protection may shrink. For example, the perimeter of the home may have less protection than the home itself. Still, the central inquiry remains: What is reasonable in terms an expectation of privacy? That expectation may be less if the object is a private car, or a school locker, or (at the end of the spectrum) a jail cell.

Informational privacy. Justice Binnie called this subject a “thorny question.” Its subject relates to “how much information about ourselves and activities we are entitled to shield from the curious eyes of the state.” The start point under the Charter seems to be the assumption that all information about a person is in a fundamental way that of the individual, to communicate or retain as that person sees fit.

In the final analysis, these three interest zones are not cast in concrete. Rather, they are tools to analyze cases. Justice Binnie wrote: “The distinction between personal, territorial and informational privacy provides useful analytical tools, but of course in a given case, the privacy interest may overlap the categories. Here [in Tessling], for example, the privacy interest is essentially informational (i.e. about [Tessling’s] activities) but it also implicates his territorial privacy because although the police did not actually enter his house, that is where the activities of interest to them took place.”

Drawing a Reasonableness Line

Justice Binnie related the expectation of privacy to the underlying values of the Charter: individual dignity, integrity, and autonomy. He said that information impacts on these values to the extent that it relates to a biographical core of personal information. And, partly because both the facts and the technology involving such information keeps changing, Justice Binnie said that the focus of the Court should be the whole of individual fact situations as they occurred.

As noted, present FLIR technology detects only external surface heat. Justice Binnie put some emphasis on current FLIR technology. But, it was such technology which the Court was asked to pass upon. And, in that regard, Justice Binnie stated:

The information obtained via a FLIR image by itself cannot provide sufficient grounds to obtain a search warrant. This is because, as the Crown acknowledges, the relative crudity of the present technology does not, in itself, permit any inferences about the precise activity giving rise to the heat. For that, other evidence is required to determine if there is any reason to believe the source of the heat is a marijuana grow-op. As Crown counsel put the point in oral argument, the process of obtaining a search warrant sits “on a fulcrum. And you pile straws on one side. And this [FLIR image] is one of the straws.” Moreover, “if you don’t have a number of other cogent items of evidence, [FLIR] isn’t going to help you greatly.” Based on current FLIR technology, this is correct.

Tessling did not testify on his application to exclude the evidence resulting from the search. Still, Justice Binnie, for the Court, agreed with the decision of the Court of Appeal: “It may be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private. Such an expectation is rooted in the ancient law of trespass and finds its modern justification in the intimacies of personal and family life. This is the approach adopted by the Ontario Court of Appeal and, so far as it goes, I agree with it.”

Yet, and this was important to the decision in Tessling, it was the heat pattern on the outside of the home which FLIR measured. That pattern did not tell the police what, as such, happened inside the home. Rather, it allowed an inference to be drawn that marijuana could be raised there with the use of intense lighting. Police needed more than evidence of external heat patterns to obtain a search warrant. Thus, the Court could find a subjective interest in Tessling’s privacy as to what went on inside his home but, at the same time, allow evidence of the external heat pattern. But, even here, the absence of subjective expectation of privacy may not end the matter.

This is how Justice Binnie put the matter:

However, I do not think it can be said that “allowing” heat to escape rebuts an expectation of privacy in the way, for example, that the accused was said to “abandon” his privacy interest in the garbage he put out on the street for collection in The Queen v. Joyce, [1996] 95 Ontario Appellate Court Cases 321 (C.A.), at paras. 4–5. Few people think to conceal their home’s heat loss profile, and would have difficulty doing so if they tried. Living as he does in a land of melting snow and spotty home insulation, I do not believe that the respondent had a serious privacy interest in the heat patterns on the exposed external walls of his home. However, the police were clearly interested in the “heat profile” not for its own sake but for what it might reveal about the activities inside the home. In that respect, to the extent that it is in issue, the respondent maintained a subjective expectation of privacy.

I should add a caveat [caution]. The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by section 8 to the values of a free and democratic society. In an age of expanding means for snooping readily available on the retail market, ordinary people may come to fear (with or without justification) that their telephones are wiretapped or their private correspondence is being read [emphasis added].

Decision

The Court allowed evidence of the FLIR results to be used in obtaining a warrant to search Tessling’s home. And the evidence there obtained was properly admissible at his trial, with the result that his conviction was restored. Again, however, much of the emphasis in Justice Binnie’s opinion was on the fact that the FLIR test measured the outside of the home and, as such, allowed only for inferences as to what might have occurred inside the home. In that regard, more was required to support the request for a warrant. And that additional information came largely from an informant. Our concern in this case has been with the legality of using the FLIR overflight results without a warrant.

Justice Binnie, for the Court, stated:

The marijuana grow-op itself was certainly not in public view. Thus the debate is forced back to the same question posed at the outset: What exactly does the FLIR image tell the police about the existence of a marijuana grow-op inside the house? The answer, as discussed, is that FLIR imaging cannot identify the source of the heat or the nature of the activity that created it. It merely tells the police that there are heat-generating activities within the home. (It would be strange if it were otherwise.) The existence and distribution of heat on the external walls is consistent with a number of hypotheses including as one possibility the existence of a marijuana grow-op. FLIR’s usefulness depends on what other information the police have.

While I conceptualize the subject matter somewhat differently than Abella J.A. [who handed down the appellate court decision] as externally obtained information about the home (because no “intrusion” in any meaningful sense is possible under existing FLIR technology), I agree with the concern that privacy is closely linked to the effect that a breach of that privacy would have on the freedom and dignity of the individual ... [and that] we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy....

For reasons already stated, I do not regard the use of current FLIR technology as the functional equivalent of placing the police inside the home. Nor is it helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when section 8 of the Charter was adopted.

Having regard to its purpose, I do not accept that section 8 is triggered by a FLIR image that discloses that heat sources of some unknown description are present inside the structure, or that the heat distribution is uneven. Certainly FLIR imaging generates information about the home but section 8 protects people, not places. The information generated by FLIR imaging about the respondent does not touch on a biographical core of personal information, nor does it tend to reveal intimate details of [Tessling’s] lifestyle.... It shows that some of the activities in the house generate heat. That is not enough to get [Tessling] over the constitutional threshold.

External patterns of heat distribution on the external surfaces of a house is not information in which [Tessling] had a reasonable expectation of privacy. The heat distribution, as stated, offers no insight into his private life, and reveals nothing of his biographical core of personal information. Its disclosure scarcely affects the dignity, integrity and autonomy of the person whose house is subject of the FLIR image.

You Be the Judge

Public or Private Information?

The case that follows is real. The issues centre around validity of the investigation and search by police leading up to the charges laid and the evidence presented at trial.

The Facts

Robert Scott Plant of Calgary, Alberta, was charged with unlawful cultivation of marijuana contrary to section 6(1) of the Narcotic Control Act (NCA). He was convicted on that charge. However, he was acquitted on the charge of possession of marijuana for the purposes of trafficking under section 4(2) of the NCA. It is the investigation leading up to the search of Plant’s home that is of concern to us.

The Calgary Police Service received an anonymous Crime Stoppers tip. The caller said that marijuana was being grown in what the caller described as a “cute house” next to another house “with a lot of windows” on 26th Street between two consecutive cross avenues in Calgary.

Police conducted a “reconnaissance” which included travelling along the reported street. They believed they identified the specific address. A member of the police drug unit used a police computer terminal linked to the main frame of Calgary’s utility company. After entering a police department password, the computer link allowed police to obtain comparative electricity consumption data both as to the home in question and two similar area homes. That data indicated that, over a six-month period, the home in question used four times the amount of electricity compared to two similar homes.

Two members of the drug squad, in plain clothes, then went to the home. They knocked on the front door. There was no answer. They then walked to the back door. As they walked, they noticed two basement windows covered with something “opaque.” They saw what appeared to be the outside vent for a dryer. They sniffed, and smelled nothing. But the vent, they saw, was plugged with a plastic bag. This, based on their experience, was “consistent” with other marijuana hydroponic operations. The two officers were chased from the premises by a nearby resident who had returned home.

One of the two officers returned to his detachment and prepared a search warrant, summarizing the information obtained. The warrant was issued by a provincial court judge, and carried out by eight officers. Police found 112 marijuana seedling plants.

The Issues

Without a search warrant, was the “perimeter” walk around the residence of the accused lawful?

Without a search warrant, was police access and use of electrical utility computer information lawful?

Even if the search were unlawful, could the results still be used in evidence in a criminal proceeding under section 24(2) of the Charter?

Points to Consider

Section 12 of the Narcotic Control Act (NCA) allows police to “enter and search any place other than a dwelling-house without a search warrant if they have reasonable grounds to believe that an offence under the NCA has been committed” [emphasis added].

Section 8 of the Charter of Rights and Freedoms provides that “everyone has the right to be secure against unreasonable search or seizure.”

The purpose of section 8 of the Charter is to protect individual privacy from the state. The police obtained ongoing access to consumer electricity utility use as a result of an agreement between the police and the utility company.

There must be reasonable cause to believe that a violation of the NCA has been committed for a search warrant to be issued. It is possible to strike one unlawful basis for issuing a search warrant and still sustain it — so long as the remaining lawful information is sufficient to permit a warrant.

A tip can be used to support a request for a search warrant if it has a basis in “reliability” which can be assessed in part by the accuracy of the tip.

Discussion

This exercise is based largely on The Queen v. Plant, [1993] 3 Supreme Court Reports 281, decided by a seven-member panel of the Supreme Court of Canada. The decision, which allowed the results flowing from the search warrant to be used in the criminal trial, was handed down by Justice John Sopinka. Justice McLachlin (later chief justice) agreed with much of Justice Sopinka’s reasoning and the result reached by the Court. However, she would have ruled the computer records of the utility company as private and subject to the requirements of section 8 of the Charter.

We begin our discussion with this: If the search warrant were unlawful and that which flowed from it could not otherwise be saved by section 24(2) of the Charter, then Plant would have to be acquitted. The evidence that convicted him came from the search of his home, namely the marijuana seedlings found in his basement.

The Computer Records

The computer records, even if they were properly obtained by the police, did not, in themselves, demonstrate that marijuana had been grown. Such records only show that the amount of electricity necessary to power light for such growing had been used. In itself, it is not enough for a judge to issue a search warrant. Additional information is needed to show that an NCA violation has taken place, such as a specific claim that the accused has, in fact, grown marijuana.

For the police in the Plant case, that claim came from the tipster, about whom more will be said shortly. Again, to issue a search warrant, the judge must find that the information supporting it reasonably shows that a violation of the NCA has taken place (in this case, growing marijuana).

Now, however, let us return to the computer records, knowing that they are important but not determinative to the issuance of a search warrant. The central question in Plant was whether those records were private or public. If they were public, then the law relating to search warrants was not applicable — they were subject to seizure by the police. The reason: In law, no search within the meaning of section 8 of the Charter would have taken place.

Justice Sopinka held that the utility company records were public and, as such, were properly accessed by the police. Another way of expressing this conclusion is to say that the records were not confidential to Plant. It could not be said that Plant had any reasonable expectation as to the privacy of the records. And, against any expectation of privacy must be measured the interest of the state in law enforcement. Justice Sopinka stated:

The purpose of section 8 [of the Charter] is to protect against intrusion of the state on an individual’s privacy. The limits on such state action are determined by balancing the right of citizens to have respected a reasonable expectation of privacy as against the state interest in law enforcement….

In balancing the reasonable expectation of privacy of the individual with the interests of the state in law enforcement, this Court has determined that electronic taping of private communication by state authorities violates the personal sphere protected by section 8 [of the Charter].... And seizure by state agents of a blood sample taken by medical personnel for medical purposes ... has been found to run afoul of the section 8 right against unreasonable search and seizure in that the dignity, integrity and autonomy of the individual are directly compromised. While this Court has considered the possibility of violations of section 8 in relation to informational privacy ... we have not previously considered whether state inspection of computer records implicates section 8 of the Charter....

In fostering the underlying values of dignity, integrity, and autonomy, it is fitting that section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. The computer records investigated in [this] case ... while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of [Plant’s] life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence.

The nature of the relationship between [Plant] and the [utility] Commission cannot be characterized as a relationship of confidence. The Commission prepared the records as part of an ongoing commercial relationship and there is no evidence that it was contractually bound to keep them confidential. This is not to suggest that records prepared in a commercial context can never be subject to the privacy protection afforded by section 8 of the Charter. If commercial records contain material which meets [a] personal and confidential standard ... the commercial nature of the relationship between the parties will not necessarily foreclose a section 8 claim.

Although it has been indicated that some utilities commissions have developed policies against releasing consumption information to police ... it was clearly the policy of the Calgary Commission to permit police access to the computer data bank, albeit through a computer password. Further, it is generally possible for an individual to inquire with respect to the energy consumption at a particular address, so that this information is subject to inspection by members of the public at large. The accessibility of the information to the public is, in my view, more relevant to the issue than the policy of release developed by the Calgary Commission since the primary concern in this analysis is the expectation of privacy held by the person whose information was released, rather than the manner in which the body releasing the information categorized it. Nevertheless, I do not view the relevant relationship in [this] case ... as one which is reasonably characterized as confidential.

The place and manner in which the information in [this] case was retrieved also point toward the conclusion that [Plant] held no reasonable expectation of privacy with respect to the computerized electricity records. The police were able to obtain the information on-line by agreement of the Commission. Accessing the information did not involve intrusion into places ordinarily considered private.... Nor did it involve invasion by state agents in personal computer records confidentially maintained by a private citizen. While the requirement that the police use a password to access the information may suggest some element of privacy in the manner in which the search was conducted, it may equally suggest that the password was merely intended to ensure that on-line information was available only to the police. In any event, the search was not conducted in an intrusive or high-handed manner, so that on balance, I would conclude that the place and manner of the search were in keeping with what could reasonably have been expected by [Plant].

In addition to the fact that the manner and place of the search are indicative of a minimally intrusive search, the seriousness of the offence militates in favour of the conclusion that the requirements of law enforcement outweigh the privacy interest claimed by [Plant]. As this Court previously concluded ... while participation in the illicit trade of marijuana may not be as serious as the trade in other narcotics such as cocaine, it remains an offence which is taken seriously by law enforcement agents.

Overall, I have concluded from the nature of the information, the relationship between the appellant and the Commission, the place and manner of the search, and the seriousness of the offence under investigation, that [Plant] cannot be said to have held a reasonable expectation of privacy in relation to the computerized electricity records which outweighs the state interest in enforcing the laws relating to narcotics offences. As such, [Plant] has failed to bring this search within the parameters of section 8 of the Charter. This information was, therefore, available to the police to support the application for a search warrant.

The Tipster: Needed Information

An anonymous tip to police can support a search warrant if it is seen as reliable. There are three tests, Justice Sopinka said, for reliability:

Was the information predicting the criminal offence compelling?

If the source (as in Plant) came from outside the police, was it compelling?

Was the tip supported by police investigation before the decision to conduct the search?

Justice Sopinka found that the tests had been met, and that the tip could form part of the basis to support a search warrant. He stated:

The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation and located the appellant’s house in a fairly specific geographic region, albeit without specifying an exact street address.

It is impossible to determine whether the source was credible except by reference to the fact that the information was subsequently corroborated by a police reconnaissance which resulted in identification of the exact address of the residence described by the informant. The tip itself, therefore, was compelling enough in its specification of the place in which the offence was occurring for the police to readily locate the exact address of [Plant’s] residence and corroborate the report of the informant. I conclude that the anonymous tip, although made by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant [emphasis added].

A Concurring Opinion

Justice McLachlin (as she then was) agreed with the result and much of the reasoning in Plant. Aside from the computer records, she would have found a sufficient basis to issue a search warrant. However, she would not have treated the computer records as public. They were, in her view, private. They gave rise to a reasonable expectation of confidence. Justice McLachlin wrote:

The question in each case is whether the evidence discloses a reasonable expectation that the information will be kept in confidence and restricted to the purposes for which it is given. Although I find the case of electricity consumption records close to the line, I have concluded that the evidence here discloses a sufficient expectation of privacy to require the police to obtain a warrant before eliciting the information. I conclude that the information was not public, since there is no evidence suggesting that this information was available to the public and the police obtained access only by reason of a special arrangement.

The records are capable of telling much about one’s personal lifestyle, such as how many people lived in the house and what sort of activities were probably taking place there. The records tell a story about what is happening inside a private dwelling, the most private of places. I think that a reasonable person looking at these facts would conclude that the records should be used only for the purpose for which they were made — the delivery and billing of electricity — and not divulged to strangers without proper legal authorization [emphasis added].

The very reason the police wanted these records was to learn about [Plant’s] personal lifestyle, i.e. the fact that he was growing marijuana. More generally, electricity consumption records may, as already noted, reveal how many people live in a house and much about what they do. While not as revealing as many types of records, they can disclose important personal information.

My colleague notes that the relationship between [Plant] and the electricity commission was not one of confidence. It seems to me that the question is not so much whether the relationship is one of confidence, so much as whether the particular records disclose a reasonable expectation of confidence [emphasis added].

My colleague states that the information was generally available to the public. This, with respect, does not accord with the evidence, which as noted, suggests that the records were not open to the public, and that the police were able to access them only by using a special computer number which they had been given in confidence. This is an important factor; had I been able to conclude that the records were open to the public, I might well have concluded with my colleague that [Plant] had no expectation of privacy in the records [emphasis added].

My colleague also argues that the place and manner in which the information was retrieved belie a reasonable expectation of privacy, emphasizing that the police did not have to intrude into “places ordinarily considered private” like a house or hotel room to get the information. But, again with respect, this begs the question. Computers may and should be private places, where the information they contain is subject to the legal protection arising from a reasonable expectation of privacy. Computers may contain a wealth of personal information. Depending on its character, that information may be as private as any found in a dwelling house or hotel room.

Challenge Question

A “Theoretical” Possibility

Overflight surveillance is a developing technology. There is a possibility that it may soon allow for views “inside” a building, as well as sensitivity maps of heat escaping from such structures.

Q. To what extent should a court consider realistic scientific developments of devices such as FLIR in determining whether a search has taken place within the meaning of section 8 of the Charter?

The Supreme Court left no doubt that it is the present capacity of a device such as FLIR which should be examined, not the scientific potential for enhanced use. It is not that the Court questioned what an emerging science may bring. Rather, the Court seemed to emphasize that it is the “here and now” that should be examined. This, in turn, seems to mean that if, for example, FLIR should be enhanced by science, then Tessling would not be binding as to the facts. On the contrary, the Court would look to the facts of the enhanced technology and apply the principles set out in Tessling.

For the Court, Justice Binnie wrote in the Tessling case:

Moreover, because I emphasize the informational aspect, my focus is on the quality of information that FLIR imaging can actually deliver, whereas Abella J.A. [as she then was], looking to safeguard the home, looked more to the ‘”theoretical capacity’” of the FLIR technology. For example, her reasons include the prediction that ‘”the nature of the intrusiveness is subtle but almost Orwellian in its theoretical capacity.”

In my view, with respect, the reasonableness line has to be determined by looking at the information generated by existing FLIR technology, and then evaluating its impact on a reasonable privacy interest. If, as expected, the capability of FLIR and other technologies will improve and the nature and quality of the information hereafter changes, it will be a different case, and the courts will have to deal with its privacy implications at that time in light of the facts as they then exist.... The question is: Does FLIR technology in fact intrude on the reasonable sphere of privacy of an individual?

Protection Beyond Privacy

Are there “interests” beyond privacy which section 8 of Charter will protect against unreasonable search and seizure?

Justice Binnie cited with approval the opinion of Justice Dickson, as he then was, in Hunter v. Southam Inc., [1984] 2 Supreme Court of Canada Reports 145, at p. 159, who said: “I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far.”

Justice Binnie, for his part, did not expand on the comment of Justice Dickson (who later became chief justice of the Supreme Court of Canada).

Challenge Question

Search and Seizure: Grow-Ops and Use

Q. Suppose there is an unlawful search of a marijuana grow-op. Should the fact that the penalty for marijuana use is lesser than that relating to the use of other proscribed drugs have any bearing on whether the results of that unlawful search may be entered in evidence in a criminal proceeding?

Unlawfully obtained evidence may be admitted in a criminal proceeding if it meets the conditions of section 24 of the Charter which provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it would bring the administration of justice into disrepute.

It can be argued, as Justice Abella did in Tessling when she was a member of the Ontario Court of Appeal, that the evidence should be excluded. The reason: There is “public, judicial, and political recognition that marijuana is at the lower end of the hierarchy of harmful drugs.” That is, the use of different kinds of prohibited drugs may have different levels of individual harm. Thus, excluding the unlawfully obtained evidence, Justice Abella concluded, would not result in any significant social cost, while its admission, in her view, would bring the administration of justice into disrepute.

In Tessling, Justice Binnie, speaking for the Supreme Court, commented on the seriousness of the alleged offence both as a factor bearing upon the reasonableness of the search (and that means the expectation of privacy), and the role of section 24(2) as to the admission of unlawfully acquired evidence. His conclusions, especially as to section 24(2) in general, are in line with Justice Abella. Justice Binnie wrote:

I do not think that [the seriousness of the offence] is a factor in determining whether the [accused] did or did not have a reasonable expectation of privacy in the heat distribution patterns on the outside of his house. Rather, [the seriousness of the offence] may more logically arise at the stage the court considers whether a particular search was reasonable, or whether the evidence obtained by an unreasonable search may be admitted into evidence under s. 24(2) of the Charter [emphasis added].

You Be the Judge

The Case of Floating Gambling

The case that follows is real. It deals with unseen searches, this time on the “inside” of the suspected unlawful enterprise.

The Facts

During the summer of 1984, Toronto police started an investigation to locate “floating” gaming houses which they deemed were “frequented by gamblers of Oriental extraction.” As part of this probe, the police officers went to downtown hotels and asked their security officers to inform them of “anything unusual as to Orientals attending hotels.”

A few months later, the security staff at a major downtown hotel contacted the police with information relating to the possible use of the hotel for illegal gaming. Police visited the hotel and the room where the claimed gambling took place. The occupants of the room had rearranged the furniture to form a long table suitable for gambling. In addition, on searching the garbage left by the occupants, the police found many slips of paper bearing Chinese characters. The slips bore the address and number of the hotel room, and the chief investigating officer was able to identify these as notices similar to some which he knew were distributed to potential Asian gamblers in various restaurants in Toronto’s Chinatown.

The police checked the hotel register. It noted that Santiago Wong had booked this room for later in the same month. On the basis of their findings, the police concluded that the room booked by Wong might be used for illegal gambling. After determining that it would not be possible to see into the room from the roof of the other wing of the hotel, the officers in charge of the investigation concluded that only video surveillance would enable them to further their investigation by actually monitoring what happened in the room booked by Wong.

The police rejected the idea of using undercover officers. On the basis of past experience, they were certain that the gaming would be behind locked doors — by and for Asians alone. Since the identity of Asian police officers was well known in the community, the investigating officers believed it would be virtually impossible to infiltrate the gambling sessions with undercover operators.

Once it was determined that video surveillance was the only practical way of monitoring the room, the officers contacted the Metro Police Intelligence Branch and a Crown Counsel to discuss the possibility of obtaining a warrant. These discussions left the police officers with the impression that it would not be possible to obtain judicial authorization to conduct the video surveillance. The investigators then decided to proceed without this authorization, and they installed a video camera in the drapery valence of the room registered to Wong. The camera had a lens about the size of the lead of a pencil and was attached to simultaneous recording equipment which the police monitored from an adjacent hotel room. The equipment was put in place with the permission and co-operation of the hotel management. (A warrant might have been possible for an audio tap.)

The police monitored the activities in the rooms on five separate occasions. These observations left no doubt that illegal gambling sessions were being held in the hotel suite. This surveillance culminated in an early morning raid. The police entered the room with a key provided by management and found a large group of Asian males in the suite. A search of these persons revealed numerous slips of the type seized in their earlier search of the room. Wong had profit lists, while debt lists were seized from some of the other occupants of the room. The police seized gambling paraphernalia and a large amount of money found on the gaming table.

Wong and ten other accused men were later charged with the offence of keeping a common gaming house. At trial, all the accused pleaded not guilty. The trial judge dismissed the charges against all the accused. He held that the video surveillance of the accused violated section 8 of the Charter, and he excluded the evidence obtained under section 24(2) of the Charter.

The Crown’s appeal to the Ontario Court of Appeal against the acquittal of Wong and the others was allowed, and a new trial ordered. The Court of Appeal ruled that, on the facts of this case, Wong could not be said to have had a reasonable expectation of privacy. Accordingly, the Court of Appeal held, section 8 of the Charter had no application and the evidence of the video surveillance was therefore admissible.

The Issues

Is video surveillance to be treated the same as an audio tap, where the Supreme Court of Canada had stated that it can constitute a “search” within the meaning of section 8 of the Charter and that, under the Criminal Code, a warrant, on proper showing, can be obtained?

Is the reasonable expectation of privacy to be determined on the basis of whether the accused is aware of the risk of electronic surveillance?

Does the fact of illegal activity (gambling) influence whether the secret video surveillance was legal?

Does the fact that Wong solicited strangers to attend the gambling sessions make the events “public”?

Even if the searches and seizures by the police were unlawful, may the evidence coming from them be admitted in the criminal proceedings?

Points to Consider

On a “regular basis,” Wong had booked the room where the search and seizure occurred.

The purpose in using the room was to conduct unlawful gambling and, toward that end, people of “Oriental extraction” had been solicited through notices handed out in restaurants in Toronto’s Chinatown.

The room searched was kept locked. Strangers were admitted only by permission.

At the time of this case, the right of police under the Criminal Code to obtain a search warrant for taps related to audio surveillance.

For purposes of conviction, police believed that video surveillance was the most effective form of surveillance.

Section 8 of the Charter guarantees everyone “has the right to be secure against unreasonable search and seizure.”

Section 24(2) of the Charter provides: “Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Discussion

The facts are based largely on the Supreme Court of Canada decision in The Queen v. Wong, [1990] 3 Supreme Court Reports 36. There, a seven-member panel of the Court allowed the evidence flowing from the search and seizure to be received by the trial court.

The decision, however, brought three opinions, including a dissent from Justice Wilson, who deemed the video surveillance unlawful and would have denied use of the results within the meaning of section 24(2) of the Charter. (Then) Chief Justice Antonio Lamer and Justice McLachlin agreed with the result of the majority. But, they did so on the basis that, in effect, no search took place. The gambling was treated as a public, not a private, matter. We will deal with each opinion in this discussion.

The Majority Opinion

Justice Gérard La Forest spoke for the Court majority of four. He emphasized that the right to privacy under section 8 of the Charter (protection against unreasonable search and seizure) is one “meant to keep pace with technological development and, accordingly, to ensure that we are ever protected against unauthorized intrusions upon our privacy by the agents of the state, whatever technical form the means of invasion may take.” Thus, the Court’s decision applied the rights under section 8 to video surveillance just as it had done to audio taps.

But a central question remained as to whether the gaming sessions themselves gave rise to a reasonable expectation of privacy. If there were such an expectation, then the accused was entitled to the rights under section 8 of the Charter. Justice La Forest rejected the arguments of the Crown, set out below, and sustained the claimed right to privacy.

Risk Analysis

To what extent, if any, should a court inquire into whether an individual has “courted the risk of surveillance”? That is, should a court ask whether the accused has been aware that his activities, by their very nature (illegal gambling), might have been monitored by the police? The Court majority rejected the need for such an inquiry. Justice La Forest spoke initially of audio surveillance, and then the technology of video surveillance:

When the intrusion takes the form of unauthorized and surreptitious electronic audio surveillance ... it [is] clear that to sanction such an intrusion would see our privacy diminished in just such an unacceptable manner. While there are societies in which persons have learned, to their cost, to expect that a microphone may be hidden in every wall, it is the hallmark of a society such as ours that its members hold to the belief that they are free to go about their daily business without running the risk that their words will be recorded at the sole discretion of agents of the state....

I am firmly of the view that if a free and open society cannot brook the prospect that the agents of the state should, in the absence of judicial authorization, enjoy the right to record the words of whomever they choose, it is equally inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious video surveillance. George Orwell in his classic dystopian [an imaginary dehumanized and fearful place] novel 1984 paints a grim picture of a society whose citizens had every reason to expect that their every movement was subject to electronic video surveillance. The contrast with the expectations of privacy in a free society such as our own could not be more striking. The notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the part of government. As in the case of audio surveillance, to permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society.

Unlawful Activity

The Court of Appeal, based on the facts, had ruled that neither Wong nor others attending the gambling sessions could have had any expectation of privacy. The very nature of the activity, said the Court of Appeal, was in a real sense public. After all, notices announcing the sessions had been distributed in a number of restaurants in Toronto’s Chinatown. In effect, Justice La Forest said, the Court of Appeal had looked to the unlawful activity to determine whether there was any expectation of privacy on the part of Wong or others in attendance.

Justice La Forest said this was the wrong question and an inappropriate test for determining an expectation of privacy. He wrote:

It would be an error to suppose that the question that must be asked ... is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.

Viewed in this light, it becomes obvious that the protections of section 8 of the Charter are meant to shield us from warrantless video surveillance when we occupy hotel rooms. Clearly, our homes are places in which we will be entitled, in virtually all conceivable circumstances, to affirm that unauthorized video surveillance by the state encroaches on a reasonable expectation of privacy. It would be passing strange if the situation should be any different in hotel or motel rooms. Normally, the very reason we rent such rooms is to obtain a private enclave where we may conduct our activities free of uninvited scrutiny. Accordingly, I can see no conceivable reason why we should be shorn of our right to be secure from unreasonable searches in these locations which may be aptly considered to be our homes away from home....

Nor, with respect, can I attach any importance to the fact that in the circumstances of this case [Wong] may have opened his door to strangers, or circulated invitations to the gaming sessions. I am simply unable to discern any logical nexus between these factors, and the conclusion that the police should have been free to videotape the proceedings in the hotel room at their sole discretion. It is safe to presume that a multitude of functions open to invited persons are held every week in hotel rooms across the country. These meetings will attract persons who share a common interest but who will often be strangers to each other. Clearly, persons who attend such meetings cannot expect their presence to go unnoticed by those in attendance. But, by the same token, it is no part of the reasonable expectations of those who hold or attend such gatherings that as a price of doing so they must tacitly consent to allowing agents of the state unfettered discretion to make a permanent electronic recording of the proceedings....

Were the reasonableness of unauthorized video surveillance to be gauged by the standard adopted by the Court of Appeal, the state would be at liberty to train its hidden cameras on an extremely broad spectrum of the activities engaged in by members of society. In effect, we would be debarred from asserting a reasonable expectation of freedom from clandestine electronic scrutiny on the part of the state at any private function to which members of the public had received an invitation.

Moreover, it is also clear that those ordinary measures which persons in a free and open society believe suffice to shut out uninvited scrutiny would be of no avail if the police (and they would of course be the sole arbiters of the matter) entertained the suspicion that the persons in the location concerned were involved in illegal activity. Here, it must be remembered that while [Wong] had rented a room in an establishment to which selected members of the public had access, he had seen to it that activities in the room were conducted behind locked doors and drawn drapes.

In effect, by application of the standard adopted by the Court of Appeal, members of society would be driven back to the confines of their homes if they wished to be sure of being able to escape the risk of unauthorized video surveillance. And even this ultimate refuge could be breached if the police formulated a suspicion with respect to gatherings in the home, for I think it must be conceded that on the reasoning of the Court of Appeal [Wong] could have asserted no reasonable expectation of privacy if the gambling sessions had been conducted in his own home.

Creative Reading of Search Warrant Authority

The Criminal Code, at the time, allowed police to obtain a warrant to tap oral communications. Was it not possible, the Crown argued, for this authority to be expanded in a “creative” way to permit a warrant for video surveillance? If so, then, at most, what the police did was a technical violation, and their search should be deemed valid. The Court of Appeal rejected this argument; and so did Justice La Forest for a majority of the Supreme Court. Such expansion is a decision for Parliament to make, not the courts. He stated:

Part IV.1 of the [Criminal] Code [which permits warrants for a wire tap of oral communications] is designed to set strict limits on the ability of the agents of the state to intercept private oral communications. It does not speak to the very different, and I might add, more pernicious threat to privacy constituted by surreptitious video surveillance. On my view of the matter, the courts would be forgetting their role as guardians of our fundamental liberties if they were to usurp the role of Parliament and purport to give their sanction to video surveillance by adapting for that purpose a code of procedure dealing with an altogether different surveillance technology.

It is for Parliament, and Parliament alone, to set out the conditions under which law enforcement agencies may employ video surveillance technology in their fight against crime. Moreover, the same holds true for any other technology which the progress of science places at the disposal of the state in the years to come. Until such time as Parliament, in its wisdom, specifically provides for a code of conduct for a particular invasive technology, the courts should forebear from crafting procedures authorizing the deployment of the technology in question. The role of the courts should be limited to assessing the constitutionality of any legislation passed by Parliament which bears on the matter [emphasis added].

Section 24(2) of the Charter

What the police carried out was an unlawful search and seizure within the meaning of section 8 of the Charter. But, that was not the end of the matter. There remained section 24(2) of the Charter, which would exclude the evidence from that search if to do so would “bring the administration of justice into disrepute.”

Central to answering this question, Justice La Forest said, is the impact of receiving such evidence on the fairness of the trial. It is true, he continued, that the breach of section 8 did infringe an important right of privacy. Yet, the violation by the police was not intentional. They had sought the advice of Crown counsel in terms of whether a warrant might be obtained for video surveillance, and they received a negative response. In the police view, there was no real substitute for video surveillance. The breach of privacy was offset. He stated: “While the offence here is not, in itself, among the most serious in the Code, it is not beside the point that the proceeds from these offences were to be used to foster far more serious crimes.... In these circumstances, I would hold that [Wong] has not established that the admission of the evidence would bring the administration of justice into disrepute.”

A Concurring Opinion

Chief Justice Lamer and Justice McLachlin, as they were then, concurred in the result of the majority, but not with the reasoning. They accepted that there is the expectation of privacy when one enters a hotel room. But the facts in Wong were different. The invitations to gamble were open to the public by notice, although in Chinese. The effect of this, the chief justice and Justice McLachlin stated, was that Wong could not have had any expectation of privacy. Thus, there was no search within the meaning of section 8 of the Charter. The result might have been different if fewer invitations had been extended. The concurring opinion stated:

[Wong] was situated in a hotel room. In most cases, a hotel room is a location in which one has a reasonable expectation of privacy. However, in this case, [Wong] had, indiscriminately, extended invitations to the gaming session which was to take place in the hotel room. He had passed out numerous notices in public restaurants and bars, thereby inviting the public into the hotel room. It is impossible to conclude that a reasonable person, in the position of [Wong], would expect privacy in these circumstances. A reasonable person would know that when such an invitation is extended to the public at large, one can no longer expect that strangers, including the police, will not be present in the room. In this case, the police effected their presence in the room via the video camera which was installed in the drapery valence.

I do not wish to be taken as adopting the risk analysis which this Court [had earlier] rejected.... I am not equating the risk that strangers will be in the hotel room with the risk that the police will be electronically recording the activity in the hotel room. The issue is not so much concerned with risk as it is with reasonable expectations. Here it was not reasonable for [Wong] to expect that strangers, including the police, would not be present in the room.

[Wong] may well have had a reasonable expectation of privacy in the hotel room had he extended a few invitations to particular individuals. However, that was not the case here. In my view, and with respect for other views, [Wong] had no reasonable expectation of privacy in these circumstances; as a result, no search took place within the meaning of section 8.

Dissenting Opinion

Justice Wilson dissented. She would have denied use of the evidence obtained from the search within the meaning of section 24(2) of the Charter. Her reasons centred on: the seriousness of the unlawful search, and the lack of seriousness of the crime.

As to the first point, the police had two days’ notice of the gambling sessions. They had other and lawful means to obtain evidence. For example, a warrant could have been sought for a wiretap. There was no showing that such a tap would have been considerably less effective than video surveillance. And, the police might have used informants — perhaps even the same informants who initially had told them of the sessions — to attend the gambling sessions. In the result, Justice Wilson stated, the unlawful use of video surveillance must be seen as intentional on the part of the police.

And, as to the second point, there was no real showing by the police that the offence of the floating gambling sessions either was a serious offence or gave rise to serious offences. She stated:

The seriousness of the offence with which an accused is charged is particularly relevant in this regard. In this case, however, the police themselves, as I have noted above, did not consider the offence to be of a very serious nature. While it was suggested that the operation of gambling houses was sometimes accompanied by violence, no substantial evidence was led on this point. In the circumstances, given the type of evidence at issue in this appeal, the fact that the violation of the accused’s Charter rights was serious because it was so unnecessary, and the fact that the offence with which the accused was charged was not in the very serious category, I conclude that the admission of the video tape evidence would tend to bring the administration of justice into repute and that it should be excluded.

Police Pursuing Leads: Internet Providers

Can Internet providers give police the names and addresses of customers without court approval? This question was answered by a unanimous Supreme Court of Canada in The Queen v. Matthew David Spencer, 2014 Supreme Court of Canada.

Spencer was charged with the possession of child pornography and making it available through his computer. How Saskatoon police came to investigate him and, more particularly, focus on his computer and its files containing child pornography (which were apparently open to others) are facts key to the charges against him.

Central to Spencer’s defence was his claim that the police search and seizure violated his Charter rights against unreasonable search and seizure.

The Facts

Spencer lived with his sister and connected to the Internet through an account in her name. He used the file sharing program LimeWire on his desktop computer to download child pornography.

LimeWire is a free peer-to-peer file sharing program that, at the time, anyone could download onto their computer. Peer-to-peer systems such as LimeWire allow users to download files directly from the computers of other users. LimeWire does not have one central database of files but, instead, relies on its users to share their files directly with others. It is commonly used to download music and movies and can also be used to download both adult and child pornography. It was Spencer’s use of the file sharing software that brought him to the attention of the police and, ultimately, led to the search questioned in this case.

As part of his regular duty, Constable Darren Parisien of the Saskatoon Police Service, by using publicly available software, searched for anyone sharing child pornography. He could access whatever another user of the software had in his or her shared folder. In other words, he could “see” what other users of the file sharing software could “see.” He could also obtain two numbers related to a given user: (1) the IP address that corresponds to the particular Internet connection through which a computer accesses the Internet at the time; and (2) the globally unique identifier (GUID) number assigned to each computer using particular software. The IP address of the computer from which shared material is obtained is displayed as part of the file sharing process.

For the purposes of this case, we know that the IP address obtained by Constable Parisien matched computer activity at the particular point in time of his investigation.

Constable Parisien generated a list of IP addresses for computers that had shared what he believed to be child pornography. He then ran that list of IP addresses against a database which matches IP addresses with approximate locations. He found that one of the IP addresses was suspected to be in Saskatoon, with Shaw Communications as the ISP (provider).

Constable Parisien then determined that Spencer’s computer was online and connected to LimeWire. As a result, he (along with any LimeWire user) was able to browse the shared folder. When he did this, he saw an extensive amount of what he believed to be child pornography.

What Constable Parisien lacked was knowledge of where exactly the computer was located and who was using it. He got that information by making a “law enforcement request” to Shaw, the Internet provider. What he wanted was subscriber information as to the name, address, and telephone number of the person using the IP address.

The request was made under authority of a police claim of an ongoing investigation of child pornography in violation of the Criminal Code. The police argued that the “request” took the place of a search warrant.

Shaw complied with the request and provided the name, address, and telephone number of the customer associated with the IP address: Spencer’s sister. With this information in hand, the police obtained a warrant to search Ms. Spencer’s home (where Spencer lived) and seize Spencer’s computer, which they did. The search of Spencer’s computer revealed hundreds of child pornography images and over a hundred child pornography videos in his shared LimeWire folder.

Spencer was charged with possessing child pornography and making child pornography available over the internet contrary to section 163.1(3) of the Criminal Code. (There was no dispute that the images found in his shared folder were child pornography.)

At trial, Spencer asked to exclude evidence found on his computer. He said that the police were not likely to have found that evidence without being given his address by Shaw — an action taken without court approval. This action, said Spencer, amounted to unreasonable search and seizure under section 8 of the Charter.

The trial judge rejected Spencer’s argument and convicted him of possession of child pornography. On appeal, the Saskatchewan Court of Appeal upheld the trial court decision with respect to the search issue.

The Supreme Court of Canada Decides

The case then came on appeal to the Supreme Court of Canada. Justice Cromwell gave the decision for a unanimous Court. The Court ruled the police had indeed conducted a search, and that the search was unlawful. However, the Court said, the evidence obtained from the search might be introduced at Spencer’s trial.

How could the Court find the search was unlawful and then allow the results of that search to be used at trial? Perhaps the best way to approach the Court’s decision is to take it one step at a time.

In point form, the reasoning of the Court follows:

The Court’s reasoning centred on the facts of the case. It asked what the “significance” of the information was that the police wanted from the provider (Shaw). How could simply getting the name and address of a subscriber be an interest entitled to constitutional protection?

The answer is that the Court looks to all of the facts surrounding the police request — the “totality of the circumstances.” One of these circumstances is the right to privacy.

To help us understand the nature of privacy, as applied to Spencer, the Court looked to “the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought.” Justice Cromwell said: “The issue is not whether Mr. Spencer had a legitimate interest in concealing his use of the Internet for the purpose of accessing child pornography, but whether people generally have a privacy interest in subscriber information with respect to computers which they use in their home for private purposes.”

Another way of expressing “privacy” is to use the word “anonymity” which, said Justice Cromwell, is not a novel concept in the law. He wrote:

The notion of privacy as anonymity is not novel. It appears in a wide array of contexts ranging from anonymous surveys to the protection of police informant identities. A person responding to a survey readily agrees to provide what may well be highly personal information. A police informant provides information about the commission of a crime. The information itself is not private — it is communicated precisely so that it will be communicated to others. But the information is communicated on the basis that it will not be identified with the person providing it.

Consider situations in which the police want to obtain the list of names that correspond to the identification numbers on individual survey results or the defence in a criminal case wants to obtain the identity of the informant who has provided information that has been disclosed to the defence. The privacy interest at stake in these examples is not simply the individual’s name, but the link between the identified individual and the personal information provided anonymously. As the intervener the Canadian Civil Liberties Association [in the Spencer case] urged in its submissions, “maintaining anonymity can be integral to ensuring privacy.”

The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public. Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy: see E. Paton-Simpson, “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places” (2000), 50 University of Toronto Law Journal 305, at pp. 325–26.

Yet, isn’t there a real danger in the scope that might be given to “anonymity” and “privacy” in impeding police investigations, especially in terms of the Internet? In Spencer, Justice Cromwell said:

The Internet has exponentially increased both the quality and quantity of information that is stored about Internet users. Browsing logs, for example, may provide detailed information about users’ interests. Search engines may gather records of users’ search terms.

Advertisers may track their users across networks of websites, gathering an overview of their interests and concerns. “Cookies” may be used to track consumer habits and may provide information about the options selected within a website, which web pages were visited before and after the visit to the host website, and any other personal information provided: see N. Gleicher, “Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web” (2009), 118 Yale Law Journal 1945, at pp. 194849; R. W. Hubbard, P. DeFreitas and S. Magotiaux, “The Internet – Expectations of Privacy in a New Context” (2002), 45 Criminal Law Quarterly 170, at pp. 189–91. The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous — by guarding the link between the information and the identity of the person to whom it relates — the user can in large measure be assured that the activity remains private.

For these reasons, the Supreme Court said that the identity of a person linked to his/her use of the Internet does give rise to a privacy interest beyond that of the person’s name, address, and telephone number found in the subscriber information. For example, a police sniffer dog, by its trained reaction, can provide information about the contents of a bag and thus “engages ... privacy interests relating to its contents.” Justice Cromwell wrote: “In the circumstances of this case [Spencer], the police request to link a given IP address to subscriber information was in effect a request to link a specific person (or a limited number of persons in the case of shared Internet services) to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest.”

The fact that the police made a “request” for the information from the online provider, who then gave the information, did not convert that request into a “lawful demand.” There was no lawful search warrant issued, for example, by a court for the subscriber information as to identity and address.

The end result, said Justice Cromwell, was that the search was unlawful.

But, Was That the End of the Matter?

Was it possible that the results of even an unlawful search could still be used by the police, or by the Crown prosecutor?

Spencer’s rights under the Charter were violated. But section 24(2) of the Charter allows for the admission of the questioned evidence unless doing so would bring “the administration of justice into disrepute.”

Justice Cromwell listed three points that the Court considered, which led to the conclusion that keeping the evidence out rather than allowing it to be considered would bring the administration of justice into disrepute. He wrote:

The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct ... (2) the impact of the breach on the Charter-protected interests of the accused ... and (3) society’s interest in the adjudication of the case on its merits.

Turning first to the seriousness of the state conduct, my view is that it cannot be characterized as constituting either “wilful or flagrant disregard of the Charter.” The investigating constable testified that he believed the request to Shaw was authorized by law and that Shaw could consent to provide the information to him. He also testified, however, that he was aware that there were decisions both ways on the issue of whether this was a legally acceptable practice.

While Justice Cromwell did not want to be understood to be encouraging the police to act without warrants in “gray areas,” his belief was clearly reasonable in light of the fact that the trial judge and three judges of the Court of Appeal concluded that the constable had acted lawfully. In short, the police were acting by what they reasonably thought were lawful means to pursue an important law enforcement purpose. The nature of the police conduct in this case would not tend to bring the administration of justice into disrepute.

The second factor is the impact of the Charter-infringing conduct on Spencer’s Charter-protected interests. That impact here was serious. As discussed above, anonymity is an important safeguard for privacy interests online. The violation of that anonymity exposed personal choices made by Spencer to be his own, and subjected them to police scrutiny as such. This weighed in favour of excluding the evidence.

That brought Justice Cromwell to the final factor: society’s interest in an adjudication on the merits. While the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. Justice Cromwell concluded:

The offences here are serious and carry minimum prison sentences. Society has both a strong interest in the adjudication of the case and also in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences. If the evidence is excluded, the Crown will effectively have no case. The impugned evidence (the electronic files containing child pornography) is reliable and was admitted by the defence at trial to constitute child pornography. Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children.

Balancing the three factors, my view is that exclusion of the evidence rather than its admission would bring the administration of justice into disrepute, and I would uphold its admission.

The Supreme Court of Canada sent the case back for a new trial on the issue of whether Spencer had made the photographs available to others — a separate charge. The question bore directly on computers and the Internet.

No one suggested that Spencer, in fact, handed the pictures over to any person. Rather, the Crown took the position that he was wilfully blind to the potential use of the files.

Citing another Supreme Court decision, Justice Cromwell said: “A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge [i.e. intent]?”

Editorial Comment

The Globe and Mail made the following editorial comment on The Queen v. Matthew David Spencer:

The Supreme Court was right on Friday to reassert the search-warrant principle in the electronic age. Customers of an Internet service provider, said the court, have a reasonable expectation that their subscriber information for an IP address will be private. Companies should not blithely and routinely hand it over to the police, without a judicial authorization.

In this case, Shaw Communications Inc. voluntarily gave a police officer such information about a suspected — and as it turned out, actual — collector of child pornography, Matthew Spencer. Constable Darren Parisien knew there was some doubt about whether a warrant was needed, but he acted in good faith. And once he identified the suspect’s house, he quite properly obtained a search warrant to enter the house.

The federal government’s Bill C-13, the misnamed Protecting Canadians from Online Crime Act, if it is passed, would confirm the warrant requirement. Under C-13, a police officer applying for judicial authorization of access to the subscriber information for the IP address would presumably face the lesser threshold of “reasonable suspicion,” rather than the more demanding standard of reasonable and probable grounds for a search warrant. Either way, they’d have to show evidence and seek the approval of a judge.

Over the past few months, Canadians have been treated to a growing barrage of stories about the ways in which agencies of government are able to get extralegal access to information about Canadians’ phone and e-mail accounts. The court reminded us that this is at odds with our most fundamental constitutional principles. For government to access your private information, a judge’s authorization should normally be required (Globe and Mail, June 15, 2014).

References and Further Reading

* Cited by the Supreme Court of Canada.

Amsterdam, Anthony G. “Perspectives on the Fourth Amendment.” Minnesota Law Review 58 (1974): 349.*

Blanchfield, Mike. “Online Privacy: Supreme Court Says Warrant Needed for Internet Info.” huffingtonpost.ca, June 13, 2014.

. “Big Marijuana Factory Was One Strange Joint.” Globe and Mail, January 13, 2004.

Cheney, Peter. “The Massive Secret Inside Barrie’s Former Brewery.” Globe and Mail, January 12, 2004.

Fine, Sean. “Online Anonymity Ruled as Vital.” Globe and Mail, June 14, 2014.

Freeze, Colin, and Dawn Walton. “Drug Crime Nourished in Sleepy Communities.” Globe and Mail, March 5, 2005.

“Get a Warrant If You Want to Get Into an IP Address.” Globe and Mail, June 16, 2014.

Gleicher, Nathaniel. “Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web.” Yale Law Journal 118 (2009): 1945.*

Gutterman, Melvin. “A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance.” Syracuse Law Review 39 (1988): 647.

Ha, Tu Thanh. “Predators and Privacy: Ruling Set to Stoke Debate on Police’s Telecom Ties.” Globe and Mail, June 12, 2014.

Hubbard, Robert, et al. ”The Internet – Expectations of Privacy in New Context.” Criminal Law Quarterly 45 (2009): 170.

Hume, Mark. “Police Can’t Keep Up with Growth of Pot Farms, Study Finds.” Globe and Mail, March 11, 2005.

Orwell, George. Nineteen Eighty-Four. Toronto: Penguin Books, 1949.*

Paton-Simpson, Elizabeth. “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places.” University of Toronto Law Journal 50 (200): 305.

Presser, Jill. “Here’s to Privacy in Your Online Life.” Globe and Mail, June 17, 2014.

Report of a Task Force established jointly by Department of Communications/Department of Justice. Privacy and Computers. Information Canada, Ottawa, 1972.*

Rosenthal, Andrew. “The House Actually Did Something About Warrantless Surveillance.” New York Times, June 20, 2014.

Slane Andrea, and Lisa M. Austin. “What’s in a Name? Privacy and Citizenship in the Voluntary Disclosure of Subscriber Information in Online Child Exploitation Investigations.” Criminal Law Quarterly 57 (2011).*

“The Pot Law May Stand, But It Still Needs Fixing.” Globe and Mail, January 2, 2004.

Westin, Alan F. Privacy and Freedom. Atheneum, NY: 1970.*

Chapter 3

Stop-and-Frisk and Pat-Down

By what right may police stop those simply walking in public places? Assume that police have no grounds for believing that such persons have committed any offence. Now, further assume that the police not only stop, but they politely but firmly frisk and pat-down (feeling the outside of a person’s clothing) the individual stopped — much like airport security clearances. Finally, assume that in the pat-down police find illegal drugs. May the drugs found be evidence to support criminal charges? This is the subject matter of this chapter.

Among the questions raised in this chapter are:

What are police “stop-and-frisk” and “pat-down” searches?

What limits does the Charter place on such searches?

Can police ever conduct an otherwise unlawful search?

Is it possible for the evidence of an unlawful search to be used in a later criminal proceeding?

Section 10 of the Charter of Rights and Freedoms provides: “Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right....” Note that the Charter speaks of both arrest and detention. A central question is whether a pat-down requires police to promptly inform the individual of the reasons for the action, and then to afford that individual the opportunity to obtain a lawyer.

The main case for discussion in this chapter is The Queen v. Mann and the Attorney General of Ontario, the Canadian Association of Chiefs of Police, the Criminal Lawyers’ Association (Ontario) and the Canadian Civil Liberties Association (Interveners), decided by the Supreme Court of Canada on July 23, 2004. This was a 5–2 decision with the majority opinion handed down by Justice Frank Iacobucci and the dissent by Justice Michel Bastarache, who was joined by Justice Deschamps.

We will find that while there are general rules for police to follow in stop-and-frisk matters, the detailed law is worked out in the facts of individual cases. Justice Iacobucci, for the majority in The Queen v. Mann, wrote:

This appeal presents fundamental issues on the right of individuals to walk the streets free from state interference, but in recognition of the necessary role of the police in criminal investigation. As such, this case offers another opportunity to consider the delicate balance that must be struck in adequately protecting individual liberties and properly recognizing legitimate police functions....

Nowhere do these interests collide more frequently than in the area of criminal investigation. Charter rights do not exist in a vacuum; they are animated at virtually every stage of police action. Given their mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing. Despite there being no formal consensus about the existence of a police power to detain for investigative purposes, several commentators note its long-standing use in Canadian policing practice.

We will present the facts and then the analysis given by the majority in The Queen v. Mann. Some reference will be made to U.S. Supreme Court cases. The reason is that such cases were noted and discussed by the Supreme Court of Canada in the Mann case. In part, the Supreme Court of Canada did this because the U.S. cases arose under that part of the U.S. Constitution — namely, the Fourth Amendment of the Bill of Rights — prohibiting unreasonable search or seizure, a provision similar to section 8 of the Charter which provides: “Everyone has the right to be secure against unreasonable search or seizure.”

There is another important area for discussion arising from pat-down cases: How should evidence seized in an unlawful pat-down be treated? Should the Crown be permitted to introduce such evidence in a criminal proceeding? These were the primary questions addressed by the dissent of Justice Bastarache in The Queen v. Mann. To answer these questions, the Court had to interpret section 24 of the Charter which provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in proceedings would bring the administration of justice into disrepute.

Note that section 24(2) does not require that the evidence coming from an unlawful search, in itself, be excluded from a later criminal proceeding. Rather, such evidence is to be excluded only “if it is established that, having regard to all the circumstances, the admission of it in proceedings would bring the administration of justice into disrepute.” The meaning of this requirement was discussed both by the majority and dissent in The Queen v. Mann.

The Facts of the Queen v. Mann

On December 23, 2000, shortly before midnight, two police officers on duty together received a radio dispatch stating that a break and enter of a store was in progress. The location, a high-crime area in downtown Winnipeg, was close by. The dispatcher described a suspect in the break-in as a twenty-one-year-old aboriginal male, about five feet, eight inches tall, weighing about 165 pounds, and wearing a black jacket with white sleeves. The dispatcher said the suspect was thought to be Zachary Parisienne.

When the officers were within two blocks of the scene of the reported crime, they saw an individual “walking casually along the sidewalk.” Each officer later testified that the person they saw matched the radio description “to the tee.” They stopped the person — Philip Mann — and asked him to identify himself. Mann did so, giving his name and date of birth.

That was not enough for the police. They told Mann that they wanted to do a pat-down search for concealed weapons. The Supreme Court operated on the assumption that Mann gave his consent for such a search. This is what happened:

Mann was wearing a pullover sweater with a kangaroo pouch pocket in the front. The pat-down, in the view of the officers, did not result in any suspicion that Mann had a concealed weapon. However, during the pat-down, one officer felt a soft object in the pouch pocket. Again, the officer was certain that the object was not a weapon. But, in the officer’s words, he was “curious.” He slipped his hand inside the pocket and pulled out a small plastic bag containing 27.55 grams of marijuana. From another pocket, again acting on “curiosity,” the officer pulled out a number of small plastic baggies, two Valium pills, and a treaty status card confirming Mann’s identity.

After the pat-down, Mann was arrested. He was cautioned in terms of his right to a lawyer and his right to remain silent. The charge against him was possession for the purpose of trafficking in marijuana, contrary to section 5(2) of the Controlled Drugs and Substances Act.

The trial was held in a Manitoba provincial court. There, the judge ruled that the police did a pat-down of Mann “for security reasons.” But, said the judge, there was no justification for the police to reach inside Mann’s pocket after feeling a soft item. The police did not claim that they had any reason to be threatened by a concealed weapon — and there was no basis for finding one.

The Lower Court Decisions

The provincial court judge concluded that the pat-down was an “unreasonable search” within the meaning of section 8 of the Charter which, as noted, guarantees that everyone has the right to be secure against unreasonable search and seizure. Further, the judge stated that the marijuana and baggies seized should not be received in evidence because, under section 24(2) of the Charter, to do so would interfere with the fairness of the trial. The result: Mann was acquitted.

The Crown appealed the provincial court decision to the Manitoba Court of Appeal which set aside the provincial court judgment. The Court of Appeal stated that the pat-down was both authorized by law and, based on the facts, reasonable. Initially, the Court of Appeal stated that the Crown had the burden of demonstrating the reasonableness of the search. This, said the Court of Appeal, was done. What the police did, the Court of Appeal stated, was within their duties as law enforcement officers in terms of “preserving the peace and protecting life.” The officers only acted after they had established the likeness between Mann and the described suspect.

The Court of Appeal judgment as to the reasonableness of the police pat-down was based “on the good faith conduct of the officers in carrying out the protective search.” For the court, looking at the matter, it was not reasonable for the police to look inside Mann’s pouch after the pat-down disclosed no likelihood of a concealed weapon.

Still, the Court of Appeal stated that it was: “wary of placing too rigid a constraint on officers’ ability to ensure a safe environment. [Police] officers should be allowed some latitude in this regard so long as the search was conducted in good faith. As the good faith conduct of the officers was unquestioned, the scope of the search had been reasonable in this case and there was no breach of [Mann’s] right to be secure against unreasonable search and seizure under section 8 of the Charter.”

The Supreme Court Decides

All members of the Supreme Court of Canada agreed that the search of Mann resulting in his arrest was unlawful. Justice Iacobucci, for the Court majority, outlined the principles and then applied them to the facts. He did this recognizing that it is the trial court which should decide questions of fact. And, it is the appellate court — and, in this instance, the Supreme Court — which is the final determiner of the law. Justice Iacobucci stated:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of [that law] calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference….

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable.... Warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable…. The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner.

The Mann case was the first time the Court discussed whether a search flowing from an investigative detention is allowed by law. (But, as we shall see in other somewhat similar cases — such as investigative searches flowing from 911 hang-ups and roadblocks — the Court has allowed their use.) Justice Iacobucci said that the Court’s analysis reflected the need to balance the competing interests of an individual’s reasonable expectation of privacy with the interests of police officer safety. In doing this, he emphasized that police cannot use the limited exceptions of investigative detention to protect life or immediate crime investigation as a substitute for the constitutional obligation to obtain search warrants from a judicial officer on a showing of reasonable and probable cause. He wrote:

In the context of an arrest, this Court has held that, in the absence of a warrant, police officers are empowered to search for weapons or to preserve evidence.... I note at the outset the importance of maintaining a distinction between search incidental to arrest and search incidental to an investigative detention. The latter does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible [emphasis added].

[To be lawful] the search must be reasonably necessary. The relevant considerations here include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference....

The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk.... The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

Principles Applied

Justice Iacobucci next spoke of the daily realities facing police. It was in such a context that the principles he outlined were to be applied:

Police officers face any number of risks every day in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. A frisk search is a “relatively non-intrusive procedure,” the duration of which is “only a few seconds.” Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objective ... facts to prevent “fishing expeditions” on the basis of irrelevant or discriminatory factors.

Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner.... The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

The officers had reasonable grounds to detain [Mann]. He closely matched the description of the suspect given by radio dispatch, and was only two or three blocks from the scene of the reported crime. These factors led the officers to reasonably suspect that [Mann] was involved in recent criminal activity, and at the very least ought to be investigated further. The presence of an individual in a so-called high crime area is relevant only so far as it reflects his or her proximity to a particular crime. The high crime nature of a neighbourhood is not by itself a basis for detaining individuals.

Furthermore, there were reasonable grounds for a protective search of [Mann]. There was a logical possibility that [Mann], suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons. The encounter also occurred just after midnight and there were no other people in the area. On balance, the officer was justified in conducting a pat-down search for protective purposes.

The officer’s decision to go beyond this initial pat-down and reach into [Mann’s] pocket after feeling an admittedly soft object therein is problematic. The trial judge found that the officer had no reasonable basis for reaching into the pocket. This more intrusive part of the search was an unreasonable violation of the [Mann’s] reasonable expectation of privacy in the contents of his pockets.

The finding of the trial court that the police had no reason to go beyond the pat-down for the purpose of self-protection was one of fact. As such, it was binding on the appellate courts unless there were special circumstances calling for a different conclusion. Here there were not. The officer who reached into Mann’s pocket said he did so to satisfy his curiosity, nothing more. Accordingly, Justice Iacobucci, for the Court, ruled the search yielding the drugs was unlawful (Globe and Mail, July 24, 2004).

Pat-Down Questioning

Suppose, beyond asking for identification, police had questioned Mann during the pat-down. They wanted to know what “business” he had in the area. Indeed, they asked for an explanation as to why he was in Winnipeg. The questioning was not threatening, as such.

Was Mann obligated to answer the police questions as part of a pat-down search? No. Justice Iacobucci, for the Court majority, stated: “I note that the investigative detention [pat-down] should be brief and it does not impose an obligation on the detained individual to answer questions posed by the police” [emphasis added].

A pat-down, it must be emphasized, is not an arrest which may have with it the power to search.

Challenge Questions

A Role for Parliament?

In The Queen v. Mann, the Supreme Court of Canada set out certain rules as to when a pat-down would be permitted, and when the evidence obtained from such a search could be received in any later criminal trial.

For example, the Court clearly said that if the police had reason to believe their safety was at risk, a pat-down could take place. And, if in feeling the suspect’s clothes a weapon were found, it could be taken. Charges could be laid, and the weapon could be received in evidence.

Such a rule, however, was not a law enacted by Parliament. Rather, it is the result of common law development by the courts. This means that, over the years, through decisions, the courts have established their own rules as to when a search and, more particularly, a pat-down will be lawful.

Q. Does Parliament have the power to enact laws that would set more precise boundaries for determining when a pat-down would be lawful? And, would such laws override the common law rules of the courts?

Yes, to both questions. But the answers are nuanced. Parliament does have the power to enact laws setting rules as to how searches, such as pat-downs, are to be carried out by police (or other law enforcement officers). However, such rules must comport with the Charter. And, in the final analysis, it is for the courts, and especially the Supreme Court of Canada, to interpret the law and find the facts in any case. Because Parliament has this power, the Court in The Queen v. Mann stated that it must tread carefully.

Justice Iacobucci, for the Court, wrote:

At the same time, this Court must tread softly where complex legal developments are best left to the experience and expertise of legislators.... Major changes requiring the development of subsidiary rules and procedures relevant to their implementation are better accomplished through legislative deliberation than by judicial decree. It is for that very reason that I do not believe it appropriate for this Court to recognize a general power of detention for investigative purposes.

The Court cannot, however, shy away from the task where common law rules are required to be incrementally adapted to reflect societal change. Courts, as its custodians, share responsibility for ensuring that the common law reflects current and emerging societal needs and values.... Here, our duty is to lay down the common law governing police powers of investigative detention in the particular context of this case.

Where, as in this case, the relevant common law rule has evolved gradually through jurisprudential treatment [individual cases], the judiciary is the proper forum for the recognition and ordering of further legal developments, absent legislative intervention. Over time, the common law has moved cautiously to carve out a limited sphere for state intrusions on individual liberties in the context of policing.

The recognition of a limited police power of investigative detention marks another step in that measured development. It is, of course, open to Parliament to enact legislation in line with what it deems the best approach to the matter, subject to overarching requirements of constitutional compliance. As well, Parliament may seek to legislate appropriate practice and procedural techniques to ensure that respect for individual liberty is adequately balanced against the interest of officer safety. In the meantime, however, the unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low-visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role.

You Be the Judge

A Matter of Interest?

The Facts

On a November evening in 2003, two police officers in downtown Vancouver (in a high-crime area known for the sale of drugs, especially crack cocaine) approached a small apartment building, long designated by police as a crack house. On numerous occasions, the police had obtained search warrants and made drug arrests, many of which had resulted in convictions.

On this evening, the officers saw Jason Edwards leaving the apartment building. Edwards began walking in the direction of the police squad car. The officers testified that when he spotted the car and made eye contact with them, he halted “abruptly, turned, and then moved in the opposite direction, going into a nearby alley.” The officers believed that Edwards’s movements were “evasive.” They decided to investigate further.

They moved their squad car to the alley, found Edwards, and ordered him to stop and submit to a pat-down search. There was no appearance that Edwards carried a concealed weapon. However, the officer doing the search testified that he took an “interest” in a small lump in Edwards’s nylon jacket. He testified: “As I pat-searched the front of [Edwards’s] body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid.... It felt [like] a lump of crack cocaine in cellophane.”

The officer then reached into Edwards’s pocket and took out a small plastic bag containing one-fifth of a gram of crack cocaine. Edwards was promptly arrested and charged with possession of a controlled substance. At trial, his counsel asked the court to suppress evidence of the cocaine.

The Issues

Were the officers justified in the pat-down search of Edwards to ensure that he was not carrying a concealed weapon?

Were the officers justified in pulling the bag of cocaine from his jacket pocket as part of the pat-down search?

Points to Consider

Section 8 of the Charter provides: “Everyone has the right to be secure against unreasonable search and seizure.”

A search ordinarily requires a warrant from a judicial officer describing with some precision what and where and when the search is to take place. And, a warrant is not issued unless the police (or Crown) are able to convince the magistrate that there is probable cause to believe it is necessary to a criminal investigation.

A pat-down search is one where an officer detains a person for a short period of time in the conduct of a criminal investigation. The officer feels the outside of the person’s clothing, usually to determine if a weapon is being carried.

The Supreme Court of Canada has ruled that police officers may conduct pat-down searches if there is a reasonable basis for believing they may be necessary to protect themselves or others. In this regard, it must be emphasized that such searches are designed for protection and not for criminal investigation.

Yet, such pat-down searches may result in finding evidence of wrongdoing, such as possession of unlawful drugs which can be seized and used at a later trial. This can be done if police are lawfully in a position to view the object, and if its incriminating character is immediately apparent. Thus, if an officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.

Discussion

The pat-down search for the purpose of determining whether Edwards had a concealed weapon was lawful in terms of the police protecting themselves. Edwards was in an area where drugs were sold. Indeed, he had come from a place known to police as a crack house. But, the cocaine found as a result of the pat-down will be ruled the product of an unlawful search.

In The Queen v. Mann, Justice Iacobucci, speaking for the majority, referred to facts essentially the same as those set out here. They came from a decision of the U.S. Supreme Court: Minnesota v. Dickerson, 508 United States Supreme Court Reports [1993].

Justice Iacobucci found the U.S. law relevant. The reason: The Fourth Amendment of the U.S. Constitution is written in language strikingly similar to section 8 of the Charter: It prohibits unreasonable searches and seizures. And, the Constitution is the supreme law of the United States.

The Decision

In the Dickerson case, Justice Byron White, for the Court, ruled that the police had overstepped what was permitted under the circumstances. The Court majority stated that the police were permitted to do a pat-down for the purpose of protecting themselves — to ensure that the suspect had no concealed weapons. There was no reasonable basis for believing that the package was a weapon. Nor did it follow that the feel of the package necessarily implied that it was an unlawful drug. Justice White stated:

The question before this Court is whether the officer who conducted the search was acting within the lawful bounds ... at the time he gained probable cause to believe that the lump in the defendant’s jacket was contraband. The State [trial court] did not make precise findings on this point, instead finding simply that the officer, after feeling “a small, hard object wrapped in plastic” in [the defendant’s] pocket, “formed the opinion that the object ... was crack cocaine.” The [trial] Court also noted that the officer made “no claim that he suspected this object to be a weapon” ... (The officer “never thought the lump was a weapon”). The Minnesota Supreme Court, after “a close examination of the record,” held that the officer’s own testimony belied any notion that he “immediately” recognized the lump as crack cocaine.... Rather, the court concluded, the officer determined that the lump was contraband only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket” — a pocket which the officer already knew contained no weapon.

Under the State Supreme Court’s interpretation of the record before it, it is clear that the court was correct in holding that the police officer in this case overstepped the bounds of the “strictly circumscribed” search for weapons.... Where, as here, “an officer who is executing a valid search for one item seizes a different item,” this Court rightly “has been sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a warrant or an [otherwise lawful pat-down], into the equivalent of a general warrant to rummage and seize at will.” Here, the officer’s continued exploration of [the defendant’s] pocket after having concluded that it contained no weapon was unrelated to “the sole justification of the search ... the protection of the police officer and others nearby.” It therefore amounted to the sort of evidentiary search that [this Court has] expressly refused to authorize, ... and that we have condemned in [other] cases....

Although the [searching] officer was lawfully in a position to feel the lump in [the defendant’s jacket] pocket, ... the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by [law].... Because this further search of [the defendant’s] pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.

The U.S. Supreme Court suppressed evidence of the cocaine seized in the pat-down. The defendant was acquitted.

You Be the Judge

Roadblocks and Searches Without Warrants

The Facts

A Quebec business was robbed. A description of the three robbers and their getaway vehicle (a pickup truck) was given to police. Within a short time, police established a roadblock. Vehicles and individuals similar to those described were pulled over to be questioned and, if the police believed it necessary, searched. In this regard, police also stopped vehicles similar to that described even if they appeared to contain only a driver. They believed that the other suspects might be hidden.

A pickup truck was pulled over at the roadblock. It matched the description given police. A taut piece of canvas blocked the truck’s cargo area. Police thought the suspects might be hiding underneath it. The officers removed the canvas and discovered a quantity of smuggled cigarettes. Charges were laid. The defendant moved to have the evidence suppressed.

The Issue

Was the police search of the pickup truck cargo area lawful?

Points to Consider

The police had no precise description of the robbers.

While the driver of the pickup truck was suspect, the police had no basis for holding him. Whether he would have been arrested depended on finding the other suspects in the truck.

Looking at the canvas, itself, did not allow the police to conclude that any offence had been committed. It was only after they looked under the canvas that the unlawful cargo of cigarettes was found.

In The Queen v. Mann, the Supreme Court of Canada stated that stop-and-frisk searches could take place where police had a reasonable basis for believe that a crime had taken place.

The police did not stop the pickup truck because they had any reason for believing their safety was at risk.

Discussion

The court allowed the police to make the search, and permitted the cigarettes they uncovered to be placed in evidence in support of the charges laid.

The facts come from a case before the Quebec Court of Appeal (The Queen v. Murray, [1999] 136 Canadian Criminal Cases (3rd series) 197) which was favourably cited both by the majority and dissent in The Queen v. Mann. The decision in the Quebec case was handed down by Fish, J.A. (as he then was). (Justice Fish subsequently became a member of the Supreme Court of Canada. He was part of the majority in The Queen v. Mann.)

The facts of the case indicated that the police had a reasonable basis for establishing a roadblock. While it is true that they did not know whether the suspected robbers had been hidden under the canvas in the cargo area of the truck, it was not unreasonable for them to have a suspicion in this regard. And, once they uncovered the canvas, there was clear evidence of a felony, namely, the cigarettes.

It is true that the police did not conduct the search in an effort to protect themselves. They had no reason to believe that their safety, or the safety of others, was in danger. But, as the majority said in The Queen v. Mann, a lawful detention may be for the purpose of “securing evidence of a crime.”

Justice Fish stated:

A search incident to detention is a valid exercise of police powers at common law only if the detention is itself lawful....

The search must be for a valid purpose that is rationally connected to the purposes of the initial detention. It must also be reasonably necessary: (1) to secure non-conscriptive evidence of a crime; (2) to protect the police or any member of the public from imminent danger; or (3) to discover and secure anything that could endanger the police, the person detained or any member of the public, or facilitate escape.

There was an underlying assumption in the search: The police acted in good faith. That is, they had reasonable grounds for establishing the roadblock. The crime had only recently been committed. The offence was in the area near the roadblock. The description of the robbers and the escape vehicle, while general, was followed by the police.

Differences between the Cases

What the police did in The Queen v. Murray was quite different from what was done in The Queen v. Mann. All members of the Supreme Court of Canada agreed on this point. In The Queen v. Mann, the police had no reason to look inside the defendant’s pocket. They had felt the outside of his clothing, and they were satisfied that Mann carried no concealed weapon.

The only reason the searching officer gave for looking inside Mann’s pocket, having felt the small object, was “curiosity.” It was not because the police had reason to believe Mann had committed a drug offence.

“Conscriptive” Evidence

The type of evidence seized in The Queen v. Mann is called “non-conscriptive” evidence. It is to be contrasted to “conscriptive” evidence. Here is the reason for the difference: The Charter states that no person is required to be a witness against himself/herself.

Non-conscriptive evidence is not, as such, taken from the body of the person (as is the case with DNA). Rather, it is evidence that exists “independently,” such as the crack cocaine found on Mann. Non-conscriptive evidence, if properly obtained, will not affect the fairness of a trial. That is, it will not affect the Charter right of the accused against self-incrimination.

Conscriptive evidence, however, occurs when an accused, in violation of that person’s Charter rights, is compelled to incriminate himself/herself by means of a statement, the use of the body, or the production of bodily samples.

An Unanswered 911 Call: A Right to Search?

In the Queen v. Mann, Justice Iacobucci spoke of the role of the Supreme Court of Canada in developing the common law as to permissible bounds for searches under the Charter. He said that in the absence of rules set down by Parliament, the Court would have to fashion principles out of individual cases where the facts might vary widely. What follows is an example of that fact variation.

The number used for an emergency call to the police for help is 911. It is recognized throughout Canada (and, indeed, throughout North America). Generally, there is a quick response to such calls.

A high priority for police response are 911 hang-ups. Without hesitation, police are sent to the caller’s address. The assumption is that there may be a real, possibly life-threatening, emergency. The police who are dispatched do not know what to expect. It is the policy of many police departments, including those in Ontario, to send a patrol car with two officers who, in turn, are backed up by two other officers.

In Ontario, on June 1, 1992, police officers Clafton and Baldesarra were dispatched to the home of Vincent Godoy. Radio dispatch (911) had received a hang-up call. At about 1:30 a.m., the officers arrived at the Godoy home and knocked on the door. Godoy responded, partially opening the door. The officers asked if there was any “problem.” Godoy answered that there was no problem. Officer Clafton asked if they could enter to check for themselves as to any problem. Godoy tried to shut the door, but was blocked from doing so. The officers forced entry. They did so though they neither heard nor saw anything which would have suggested that anyone was in distress.

Once inside the home, the officers heard a woman crying. They found Godoy’s common law wife in the bedroom, curled in the fetal position and sobbing. She told the officers, who saw considerable swelling above her left eye, that Godoy had hit her. Godoy was placed under arrest. He struggled. Officer Baldesarra’s finger was broken. Godoy was further charged with assaulting a police officer with the intent of resisting arrest. At trial, Godoy’s wife testified that he had not struck her, but the charge of assaulting a police officer remained.

A central question was whether the officers had violated section 8 of the Charter by forcing their way into Godoy’s home and searching it without a warrant.

The Supreme Court of Canada Decides

The case was The Queen v. Godoy, [1999] 1 Supreme Court Reports 311, decided by a unanimous decision on the part of the nine members of the Court. It affirmed the right of the police to enter the Godoy home and search. Then Chief Justice Lamer wrote the opinion for the Court. He stated:

The point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call. In the context of a disconnected 911 call, the nature of the distress is unknown. However, in my view, it is reasonable, indeed imperative, that the police assume that the caller is in some distress and requires immediate assistance. To act otherwise would seriously impair the effectiveness of the system and undermine its very purpose.

The police duty to protect life is therefore engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined [emphasis added].

It is true that the Charter in section 8 provides a right to individual privacy, but the chief justice said that there really was no alternative available to the police but to force entry to the Godoy home. He said that suggestions that the police listen at the door, or check with neighbours as to any signs of distress, were impractical and possibly dangerous.

For the Court, the chief justice stated:

Dignity, integrity and autonomy are the very values engaged in a most immediate and pressing nature by a disconnected 911 call. In such a case, the concern that a person’s life or safety might be in danger is enhanced. Therefore, the interest of the person who seeks assistance by dialing 911 is closer to the core of the values of dignity, integrity and autonomy than the interest of the person who seeks to deny entry to police who arrive in response to the call for help.

The U.S. Experience with Roadblocks

The constitutions of both the United States and Canada, as noted, prohibit unreasonable search and seizure. The U.S. approach to the subject in general, as we have said, has been cited and, to some extent, approved by the Supreme Court of Canada. What follows is a 6–3 decision of the U.S. Supreme Court in a 2000 case, The City of Indianapolis v. Edmond, November 28, 2000. Justice Sandra Day O’Connor wrote the majority decision, and Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, dissented.

The city of Indianapolis established a police program of roadblocks primarily to catch drug offenders, but also for the purpose of checking drivers’ licenses and vehicle registrations. This is how the program worked in 1998: Based on crime statistics and traffic flow within the city, Indianapolis police set up roadblocks, which often were planned weeks in advance. Generally, the stops were during daylight hours, and they were announced in advance by use of lighted signs: “Narcotics Checkpoint X-Miles Ahead, Narcotics K-9 in Use, Be Prepared to Stop.”

About thirty police officers were stationed at each checkpoint. A set number of vehicles were pulled from the line of traffic. Under rules set by the city police chief, an officer was to approach each vehicle and tell the driver that this was a narcotics checkpoint, and that the stop would be brief. The driver was to be asked for his/her license and registration. The officer was to determine visually if there were signs of “impairment,” and do “an open-view inspection from outside the vehicle.” While this was done, another officer would walk a narcotics-sniffing dog around the vehicle.

A search was to be made — with the possibility of an arrest to follow — only if there were signs that the dog smelled narcotics, or if the officer’s visual inspection resulted in specific suspicion of wrongdoing. (A search could also be made if the driver consented.) Typically, each stop was not to last more than five minutes. The police rules also emphasized that the vehicles stopped were not to be pulled out of sequence. Also, each search was to be made in the same way.

Six times between August and November 1998, the Indianapolis police set up roadblocks on city streets. A total of 1,161 cars were stopped at these roadblocks, and 104 motorists were arrested. Fifty-five of the arrests were drug-related, meaning that 5 percent of the total number of stops resulted in successful drug “hits.” Forty-nine arrests were for conduct unrelated to drugs — such as driving with an expired driver’s license — for an overall hit rate of 9 percent. (The average stop took about two to three minutes.)

The U.S. Supreme Court Decides

In a 6–3 opinion, the U.S. Supreme Court struck down the Indianapolis roadblock program, as it was designed and used. The reason: The program was designed primarily as a general means for crime control. That was not a good enough reason to overcome the Fourth Amendment’s requirement that police searches and seizures are generally unreasonable unless there is specific suspicion of wrongdoing. There are exceptions to this rule which would allow for “suspicionless” searches and seizures. But, those exceptions are driven, for the most part, by special needs beyond those of general law enforcement. Speaking for the Court majority, Justice O’Connor wrote:

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We [have] suggested [in earlier cases] that we would not credit the “general interest in crime control” as justification for a regime of suspicionless stops. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.

Still, shouldn’t the Court have taken notice of the “severe and intractable” nature of the “drug problem” in the United States? Isn’t the size of that problem sufficient reason for allowing brief roadblock checks? Justice O’Connor answered:

Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns. The same can be said of various other illegal activities, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends [emphasis added].

The primary purpose of the Indianapolis narcotics checkpoints is, in the end, to advance the general interest in crime control. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.

Dissenting Opinion

Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented. They argued, in large part, that highway roadblocks requiring regular brief stops are far different from the search of one’s body or one’s home. And, he stated, the applicable standards for passing upon whether a checkpoint seizure is lawful under the Fourth Amendment ought to be less stringent. The chief justice wrote:

The lowered expectation of privacy in one’s automobile is coupled with the limited nature of the intrusion: a brief, standardized, nonintrusive seizure. The brief seizure of an automobile can hardly be compared to the intrusive search of the body or the home. Thus, just as the “special needs” inquiry serves to both define and limit the permissible scope of those searches, the balancing test serves to define and limit the permissible scope of automobile seizures.

Because of these extrinsic limitations upon roadblock seizures, the Court’s new-found non-law-enforcement primary purpose test is both unnecessary to secure Fourth Amendment rights and bound to produce wide-ranging litigation over the purpose of any given seizure. Police designing highway roadblocks can never be sure of their validity, since a jury might later determine that a forbidden purpose exists. Roadblock stops may now be challenged on the grounds that they have some concealed forbidden purpose.

Efforts to enforce the law on public highways used by millions of motorists are obviously necessary to our society. The Court’s opinion today casts a shadow over what had been assumed, on the basis of [other U.S. Supreme Court decisions], to be a perfectly lawful activity. Conversely, if the Indianapolis police had assigned a different purpose to their activity here, but in no way changed what was done on the ground to individual motorists, it might well be valid. The Court’s non-law-enforcement primary purpose test simply does not serve as a proxy for anything that the Fourth Amendment is, or should be, concerned about in the automobile seizure context.

[The Indianapolis] program complies with our decisions regarding roadblock seizures of automobiles, and the addition of a dog sniff does not add to the length or the intrusion of the stop.

The U.S. View: Does A “Sniff” Equal a Search?

In City of Indianapolis v. Edmond, the police used a narcotics-sniffing dog to walk around the stopped vehicle. Its job was to signal the officer if narcotics were likely to be found in the vehicle. The Court had to deal with the question as to whether the use of such a dog was a “search” within the meaning of the U.S. Constitution.

Justice O’Connor, speaking for the Court majority, referred to another decision in which she had written the majority opinion for the Court (6–3). The decision — United States v. Place, 362 United States Supreme Court Reports 696 (1983) — dealt with the use of canine sniffing dogs to inspect luggage for drugs, and she stated:

The Fourth Amendment protects people from unreasonable government intrusions into their legitimate expectations of privacy. We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment....

A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose non-contraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search.

Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

In these respects, the canine sniff is sui generis [in a class by itself]. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of the respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.

Use of “Unlawful” Evidence — The Queen v. Mann

The drugs found on Mann and used to arrest and charge him were the result of an unlawful search within the meaning of the Charter. But, that, by itself, did not block the Crown from introducing them into evidence. This raised another question, and it brings us to the second part of the decision of the Supreme Court of Canada in The Queen v. Mann.

Here we find a division on the part of the Court. Justices Deschamps and Bastarache dissented from the majority opinion. They would have allowed the results of the unlawful search to be used in the trial of Mann. The majority refused to permit such use and, as a result, Mann was acquitted.

Both the majority and the dissenting opinions looked to the Charter to support their position. Both focused on section 24 of the Charter which provides:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Section 24(1) gives a court substantial discretion in fashioning a remedy for those whose Charter rights have been violated. However, it was to section 24(2) that both the majority and dissent turned to determine whether the drugs found from the unlawful search should be excluded from trial. The reason: section 24(2) is addressed to the specific problem of evidence exclusion from trial as a result of Charter violations.

The Majority Opinion

The majority set out three factors to be considered in finding whether evidence should be excluded under section 24(2):

the effect of admitting the evidence on the fairness of Mann’s trial;

the seriousness of the questioned police conduct; and

the effects of excluding the evidence on the administration of justice.

Applying these factors, Justice Iacobucci, for the majority, stated:

While a frisk search is a minimally intrusive search, the search of [Mann’s] inner pocket must be weighed against the absence of any reasonable basis for justification. Individuals have a reasonable expectation of privacy in their pockets. The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of [Mann’s] protection against unreasonable search and seizure.

The final consideration is whether the exclusion of the evidence would adversely affect the administration of justice. In this case, there is little doubt that the seized marijuana is the crux of the Crown’s case against Mann. Exclusion of the evidence would substantially diminish, if not eliminate altogether, the Crown’s case against [Mann].

Possession of marijuana for the purpose of trafficking remains a serious offence despite continuing debate about the extent of the harm associated with marijuana use. Regardless, evidence which is non-conscriptive [such as bodily samples like hair] and essential to the Crown’s case needs not necessarily be admitted [emphasis added].

Just as there is no automatic exclusionary rule, there can be no automatic inclusion of the evidence either. The focus of the inquiry under this analysis is to balance the interests of truth with the integrity of the justice system. The nature of the fundamental rights at issue, and the lack of a reasonable foundation for the search, suggest that the inclusion of the evidence would adversely affect the administration of justice.

The Dissent

Justice Deschamps, joined by Justice Bastarache, as noted, dissented from the majority opinion. Essentially, while they agreed that the pat-down resulting in finding the drugs was the result of an unlawful search, they did not see this as a serious violation of the Charter. In the result, they would not have used section 24(2) to disqualify use of the evidence in Mann’s drug trial. Justice Deschamps stated:

I would like to clarify that it is not the intrusiveness of the search in the abstract which must be taken into consideration. Instead, what is to be measured is the degree of intrusion relative to or over and above what would have been permissible under the circumstances.

This flows from the fact that what is being determined at this stage of the analysis is the seriousness of the Charter violation, not the seriousness of the search per se. If it was lawful in the present case for the officers to conduct a pat-down search, I find it difficult to see how taking the small additional step of unthinkingly giving in to curiosity, and slipping a hand into [Mann’s] kangaroo pouch, can be regarded as sufficient to put the violation which occurred in the present case on the “serious” end of the spectrum. The legal part of the search which involved the touching of the body was much more intrusive than the illegal part, which saw the search extended into [Mann’s] open pocket.

Turning to the amount of privacy [Mann] was reasonably entitled to expect at the time the incident in question occurred, I find it necessary to have regard to the fact that the search occurred late at night (approximately midnight) and in a “high-crime area,” approximately two blocks from the scene of a break-in. Individuals should expect a lesser amount of privacy in public areas frequently patrolled by police than they do in their homes or offices, for example.

Finally, while the situation may not have been “urgent,” and while the officers might not have had “reasonable and probable grounds,” the application of all of the other criteria set out above does not, in my view, point to the conclusion that the violation which occurred in the present case was very serious.

[Further,] I disagree with the majority’s conclusion that the inclusion of the evidence in the present case would adversely affect the administration of justice. With respect, I believe it is exclusion which would lead to this result.... The third stage of section 24(2) analysis turns essentially on the importance for the evidence to the case for the Crown and the gravity of the offence.

As Iacobucci J. points out, there is “little doubt that the seized marijuana is the crux of the Crown’s case against [Mann].” The marijuana and “baggies” seized by the officers in the present case constitute the Crown’s only evidence to the effect that the accused possessed the drug and intended to sell it at some point in the near future. In addition, the jurisprudence of this Court strongly supports the view that possession of marijuana for the purposes of trafficking (as opposed to mere possession) is a “serious” offence for the purposes of s. 24(2) of the Charter....

These factors favour admitting the evidence.

The Good Faith of the Officers

Is the “good faith” of the police officers in making a pat-down resulting in an unlawful search a factor in deciding whether evidence should be excluded under section 24(2) of the Charter?

Yes, but there are limits. One such limit was applied by the majority in The Queen v. Mann. The majority ruled that “good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the source of his or her authority.” Moreover, the majority opinion stated that good faith alone will not meet the tests of section 24(2). Rather, it is “but one factor in the analysis and must be considered alongside other factors which speak to the seriousness of the breach.”

Justice Deschamps, dissenting, stated: “The officer who conducted the search in the present case did not act in bad faith. There is no evidence that he knew he was acting outside the scope of his powers. Nor is it fair to characterise his error, as the majority does, as unreasonable. Mere ‘curiosity’ does not necessarily amount to bad faith.”

References and Further Reading

* Cited by the Supreme Court of Canada.

Coughlan, Steve. “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” Criminal Reports 6th ed. 2 (2002): 49.*

Greenhouse, Linda. “Supreme Court Bars Traffic Stops That are Intended as Drug Checks.” New York Times, November 29, 2000.

Makin, Kirk. “Right to Privacy Diminished in Emergency, Court Rules.” Globe and Mail, February 5, 1999.

Smith, Graeme. “Supreme Court Limits Police Frisking Rights.” Globe and Mail, July 24, 2004.

Sopinka, John, Sidney N. Lederman, and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.*

Stribopoulos, James. “A Failed Experiment? Investigative Detention: Ten Years Later.” Alberta Law Review 41 (2003): 335.*

Young, Alan. “All Along the Watchtower: Arbitrary Detention and the Police Function.” Osgoode Hall Law Journal 329 (1991): 29.*

Chapter 4

Hypnosis: An Aid in CSI?

In a criminal investigation, police are concerned with finding the facts: Was there a crime? And, if there was a crime, who was the wrongdoer? The investigatory trail is not taken in terms of any presumption of innocence — only the facts that brought the police to the scene. This is not to say that the police are not concerned with how a court would look at the elements of a case should the Crown lay charges. Here fairness of investigation, partly defined by the Charter, certainly comes into play. This chapter is a blending of the law as it impacts on police investigation techniques and the results flowing from those techniques at trial.

Our subject matter is the role of science in finding facts and, later, the use of science in the proof of alleged facts at trial. We will find that calling something “science” does not, in itself, make the facts found clear beyond a reasonable doubt. Nor do the conclusions drawn by someone who professes himself/herself an “expert” necessarily qualify that person’s findings as irreversible.

Among the subjects we will discuss are hypnosis and pathology. They are subjects that at times might help crime scene investigators and the Crown in laying and proving criminal charges — but that in their implementation may hinder investigation and, in the final analysis, the administration of justice. We begin with hypnosis and its use in a criminal murder trial.

The principal case discussed is The Queen v. Stephen John Trochym, [2007] 1 Supreme Court of Canada Reports 239. It is a murder case in which Stephen John Trochym was charged with the second degree murder of his girlfriend. This is how Justice Deschamps, who wrote the majority decision for the Court, began her opinion:

In recent years, a number of public inquiries have highlighted the importance of safeguarding the criminal justice system — and protecting the accused who are tried under it — from the possibility of wrongful conviction. As this Court has previously noted: “The names of Marshall, Milgaard, Morin, Sophonow and Parsons signal prudence and caution in a murder case.” United States v. Burns, [2001] 1 Supreme Court of Canada Reports 283 [these were cases in which real questions were raised as to the alleged guilt of those convicted].... In this [case], we consider once again the need to carefully scrutinize evidence presented against an accused for reliability and prejudicial effect, and to ensure the basic fairness of the criminal process.

We will set out the facts relating to the homicide. Our starting-point in this introduction, however, is to note that the subject of the Supreme Court’s inquiry went to the right of the Crown to use hypnosis evidence as an important piece of the Crown’s case against Trochym — helping a neighbour of the victim recall through hypnosis whether she saw Trochym leaving the victim’s apartment on a Wednesday or a Thursday. Placing Trochym at the crime scene on Wednesday at the time recalled by the neighbour would significantly assist the Crown’s case because it would come within the time the murder was committed.

First, we will describe the intersect between memory and hypnosis. Then, we will outline how hypnosis evidence had been used in criminal trials for more than thirty years — up to the time of the Trochym decision. It was in the lower courts, not the Supreme Court of Canada, where guidelines were set for the use of evidence resulting from hypnotism. As a result of the Trochym decision, this practice was changed.

Among the questions raised in this chapter are:

Is memory recall through hypnotism likely to be accurate?

When and under what conditions may a “new” or “novel” science be challenged in a criminal court?

May defence counsel agree to allow otherwise improper hypnotism evidence to be presented to the jury?

Even if hypnotism evidence has been improperly received, is it possible for a jury verdict of guilty to still be upheld?

Hypnosis: Background

Hypnosis is an induced mental state. It focuses the mind in a narrow area and, at the same time, it bypasses or distracts the conscious mind. The hypnotic state is not the same as natural physical sleep. Parts of the brain are active in hypnosis in the same way as during one’s waking hours. But, in hypnosis the mind becomes relaxed. The body also may become relaxed. However, that is only a means to induce the hypnotic state.

Once under hypnosis, the mind becomes receptive to facts, ideas, and concepts that usually are not significantly at variance from personal beliefs, values, attitudes, and desires.

A hypnotic state is characterized by trance. There are four trances. The first stage, a light trance, is one familiar to most as “natural.” It is like daydreaming. The activities around the individual tend to be turned off until the daydream is interrupted. For example, to induce a subject to become involved in weight control, only the light trance generally is needed.

The medium trance occurs when the subject’s breathing changes. There tends to be a shorter breathing rhythm. Relaxation becomes deeper. The head often rolls forward. Muscle tone diminishes. Imagination becomes stronger. Feel, smell, and taste created in the mind can be imagined.

Then, there is a deep trance. The subject can feel detached and sense lightness, even floating. The hypnotist’s voice may appear to fade in and out. And, through suggestion, the subject may have greater muscle tone.

The final stage is very deep hypnosis. Here, the subject is aware of his/her surroundings and can hear conversations and requests. A verbal response, however, seems to be too much of an effort. At this stage, there can be a sense of euphoria.

How Memory Works

Our focus is the relationship between hypnosis and memory. Specifically, we will look at whether the law allows hypnosis to be used for memory recall. Here, it must be emphasized, we are dealing with judge-made law. In the Trochym decision, the Supreme Court of Canada looked to its own rulings and other judicial decisions to determine the lines to be drawn in the use of hypnosis to refresh memory.

However, Justice Deschamps, who wrote the majority decision in Trochym, made it clear that those rulings were rooted in science — and science is an evolving subject. That which may appear to be true today might be disproved in the future. And the courts must be prepared to deal with new factual realities.

Of hypnosis and memory, Justice Deschamps stated:

While hypnosis may assist witnesses to recall additional detail, the medical community knows very little about how memory functions or what role hypnosis may have in recalling and/or altering memories.

The general consensus appears to be that memory does not work like a tape recorder that can be played back but, rather, is constructive or additive. Remembering may therefore be a more creative mental process than it is usually understood to be. Given these gaps in scientific knowledge, the admission of post-hypnosis memories raises a number of concerns.

The Crown’s expert, Dr. Matheson, testified that “the general understanding is that, if properly and professionally done, you would probably get more information [through hypnosis], and that information will be a combination of accurate and inaccurate [information].”

Justice Deschamps described three factors that can account for the high rate of real memory error flowing from hypnotism recall. She stated:

The first, and most significant, of these is the risk of confabulation, or the creation of hallucinated or false memories. Confabulation can result from the power of express or implied suggestions, or simply from a strong, unconscious desire to compensate for a lack of actual memory. It may also result from other causes that are unknown, because scientists know very little about memory. All three expert witnesses in Trochym noted at trial that, while confabulation may also occur without hypnosis, a person’s suggestibility is enhanced under hypnosis.

A second, and related, factor is that a person’s critical faculty appears to be reduced while he or she is under hypnosis. As Dr. Pollock, one of two expert witnesses called by the defence, explained, a person who has a memory in the normal “waking state” will examine it and decide whether it is accurate and should be reported. A hypnotized person is more likely to report whatever comes to his or her mind. As a result, while hypnosis may help a witness recall an event in greater detail, this heightened recollection may simply contain both more correct and more false details. The greater number of details the witness remembers may therefore create the illusion that his or her memory has improved in accuracy [emphasis added].

Finally, experts express concern about the potential for “memory hardening,” a process by which a person who has been hypnotized becomes increasingly, and unduly, confident in his or her memories. The exact cause of memory hardening is unknown but the phenomenon has been recognized. It is described as the “most consistent finding of all in studies on the various effects of hypnosis.” This process is undetectable and seemingly irreversible. When combined with the possibility that memories have been tainted through confabulation, improperly phrased questions, or other unintentional influences, the danger that the accused will be denied a fair hearing becomes obvious.

Confabulation Defined

Suggestion, through hypnosis, can result in false memory. That is, the individual does not remember, for example, a particular incident. In hypnosis, however, the subject is given a suggestion as to the forgotten event. The suggestion can become part of the memory. Imagination fills a gap not recalled by memory. That is, the suggestion provided in hypnotism becomes reality. This is called confabulation.

Challenge Question

Is Eyewitness Evidence Infallible?

Q. Aren’t the dangers of post-hypnotic evidence noted by Justice Deschamps also to be found in so-called “eyewitness” evidence? Suppose Sam witnessed a robbery. He saw the robber. Police ask Sam for eyewitness identification. Are there possibilities of confabulation and memory hardening that might taint Sam’s testimony?

An expert witness in Trochym made this argument. His point seemed to be that the validity of such evidence is best determined by the trial judge and through the process of examination and cross-examination. This, said the expert, allows for a meaningful context to be set for weighing the credibility of the witness’ eyewitness evidence.

Justice Deschamps, for the majority in Trochym, rejected the argument. She stated:

Hypnosis introduces more sources of concern and a likelihood that existing fragilities of human memory will increase, tainting the reliability of the evidence. Furthermore, the frailties of human memory when unaffected by hypnosis are only just starting to become known; indeed, the fallibility of eyewitness identification has been a central concern in a number of inquiries into wrongful convictions.

In his public inquiry into the wrongful conviction of Thomas Sophonow, for example, the Honourable Peter deC. Cory observed that most triers of fact have implicit faith in eyewitness identification and that this can be hazardous. He recommended, among other things, instructing the jury about the shortcomings of eyewitness identification and cautioning that the vast majority of wrongful convictions have resulted from faulty eyewitness identification: The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), at pp. 33–34. While Justice Cory was specifically addressing ordinary memory, his recommendations make it all the more clear why a technique used to enhance memory must be approached with great caution.

Post-Hypnotic Evidence: Past Decisions

The Trochym case testing the validity of post-hypnotic evidence was the first to reach the Supreme Court of Canada. But the legal question had been addressed by lower Canadian courts for some time. And, as Justice Deschamps stated in the Trochym decision, the lower courts had reached a common approach following rather specific guidelines laid out in 1984 by the Alberta Court of Queen’s Bench in The Queen v. Clark, 13 Canadian Criminal Cases (3d series) 117. These were the guidelines:

The person conducting the hypnotic interview should be a qualified professional.

The hypnotist must be independent of the party who requires her/his services.

The hypnotist should be given only the minimum amount of information necessary to conduct the interview.

The entire interview between the hypnotist and the potential witness should be recorded, preferably on videotape.

The interview should be conducted with only the hypnotist and the subject present.

Prior to the actual hypnosis of the subject, the hypnotist should conduct a lengthy interview of the subject to determine his medical history, including information about the present or past use of drugs.

Prior to hypnosis, the hypnotist should elicit from the subject a detailed description of the facts surrounding the subject matter of the hypnosis session, as the subject is able to recall them at that point in time.

The hypnotist should pay careful attention to the form and manner of his questions, the choice of his words, and the avoidance of body language, so that he is not either intentionally or inadvertently providing the subject with information.

Yet, bear in mind that the guidelines could be viewed as a filtering process through which proposed post-hypnosis evidence has to pass before it could even be considered by the finders of fact, whether jury or judge.

The party seeking to use such evidence must meet the conditions set out in the guidelines. This proof comes not in the trial itself. Rather, it comes in a kind of preliminary hearing called a voir dire. There, without the jury being present, the party seeking to use hypnosis evidence has to prove to a judge that the guidelines have been met. And, that is only the start in the proof of the weight they are to be given in a trial on the merits.

This does not mean that such evidence has to be accepted as fact. Rather, for example, if there were a jury trial, the judge and counsel are free to comment on limits to evidence derived through hypnosis. And, this means that the jury (or judge, if the matter were tried by a judge alone) could give such evidence limited weight.

(As we shall see, however, sometimes counsel believe that a jury might give evidence of hypnotism added weight because they believe that the results of hypnotism must be true. See, “Challenge Questions: Agreement Between Counsel.”)

The Basis for the Decision in The Queen v. Clark

In the Clark case, the accused was charged with two counts of first degree murder. He had no memory of the events until he was hypnotized. While there was no dispute that the accused had committed the acts with which he was charged, the issue at trial was his intent and mental capacity at the relevant time. In law, without the intent and lacking the mental capacity, he could not be convicted of the murder charges.

The trial judge in Clark noted concerns about the use of hypnosis, but concluded that it would only be in an “extraordinary case” that a court would deny a witness from testifying after having his or her memory stimulated by hypnosis. However, he held that “the content of the hypnosis session is a proper subject for inquiry at the trial because it bears heavily on the credibility of the witness and the weight to be given his evidence.”

To this end, the trial judge set out a number of principles that should guide a hypnotist during a hypnosis session. He observed that these guidelines (as listed above) would improve the reliability of evidence obtained under hypnosis. Again, it should be emphasized that the results of hypnosis, if allowed, in the past have been used by both the Crown and the defence.

Rejecting the “Clark Approach”

In the Trochym decision, Justice Deschamps acknowledged that the Clark guidelines had been used by lower courts for a number of years. But she said that the basic science was lacking to support those guidelines. In no small measure, the reason for rejecting what the lower courts had followed came from the expert, himself, who initially gave the rationale and support to cause those guidelines to be adopted.

Justice Deschamps wrote:

It should be noted that Hurd (State v. Hurd, 414 Atlantic Reports 2d series 291 (New Jersey Supreme Court) 1980), which formed the basis for the Clark guidelines, has come to be revisited, in part as a result of the views expressed since then by Dr. Martin Orne, whose expert testimony had played a central role in that case.

Dr. Orne subsequently warned that “hypnotically induced memories should never be permitted to form the basis for testimony by witnesses or victims in a court of law” Burral v. State, 724 Atlantic Reports 2d series 65 (Maryland Supreme Court 1999), at p. 81. He was of the view that “there is a considerable risk that the inherent unreliability of information confidently provided by a hypnotized person may actually be detrimental to the truth-seeking process” (State v. Moore, 902 Atlantic Reports 2d series 1212 (New Jersey Supreme Court 2006) at p. 1228). After reconsidering the inherent unreliability of post-hypnosis testimony, New Jersey joined the 26 states in the United States that limit the admissibility of post-hypnosis testimony. In New Jersey, post-hypnosis testimony is now generally inadmissible in a criminal trial [emphasis added].

Since the Clark guidelines are derived from Dr. Orne’s testimony in Hurd, it would be disturbing for this Court to blind itself to the subsequent developments in the American cases. With the basic reliability of post-hypnosis evidence increasingly in question, judicial approaches to such evidence have tended to shift from an assessment of the weight to be attributed to post-hypnosis testimony to whether it should even be admissible.

The Facts in The Queen v. Trochym

The majority opinion in Trochym only gave sparse treatment to the underlying facts. The primary focus of the opinion centred on the broad question of the use of post-hypnotic evidence in a criminal trial. However, the dissent in Trochym treated the facts in substantial detail. This is what Justice Bastarache, for the dissent, wrote:

Ms. Haghnegahdar [the woman who claimed to be a witness] was first interviewed by Constable Pike on October 17, 1992, the day following the discovery of Ms. Hunter’s body. She told him, among other things, that she had seen Mr. Trochym come out of Ms. Hunter’s apartment on Thursday, October 15, 1992, at 3:00 p.m. as she was getting home from school. At this time, the police were conducting routine interviews of all Ms. Hunter’s neighbours to determine whether any of them had any relevant information that would assist the investigation.

The next afternoon, Detectives Clarke and McCulla did a follow-up interview with Ms. Haghnegahdar. The meeting was audio-taped and heard at the voir dire. During the meeting, she expressed confusion over whether she saw the appellant leaving the apartment on Wednesday or Thursday. At this early point in the investigation, the police had not conclusively placed the time of death in the early morning hours of Wednesday, October 14, as most of the evidence that led to this conclusion had yet to be investigated. Nor did they know there were other witnesses placing Mr. Trochym at the apartment building on the afternoon of Wednesday, October 14. Mr. Raymer, the building superintendent, and his babysitter, Ms. Humenick, gave statements to seeing Mr. Trochym on the Wednesday only after this second interview with Ms. Haghnegahdar.

Only after receiving these statements from Mr. Raymer and Ms. Humenick did the police contemplate Ms. Haghnegahdar undergoing hypnosis in order to clear up the day of the sighting. The session was arranged for November 8, to be carried out by Dr. Matheson. In arranging the session, police made sure to convey as little information as possible about the investigation to either Dr. Matheson or Ms. Haghnegahdar, so to avoid any potential influence leading up to the session.

On the day of the session, Ms. Haghnegahdar was driven to Dr. Matheson’s office by Detective McCulla. The officer testified to being careful not to impart any information concerning the case or making suggestions regarding the information sought from her during their contact. At Dr. Matheson’s office, Ms. Haghnegahdar and Dr. Matheson were introduced in the waiting room and then Detective McCulla and Dr. Matheson met privately so that he could be given a brief overview of the case. This conversation was videotaped and heard at the voir dire. Detective McCulla gave Dr. Matheson the basic facts of the case and told him that Ms. Haghnegahdar saw Mr. Trochym leaving the apartment and was confused in her second interview about whether she saw him on Wednesday or Thursday. Detective McCulla told the doctor that the police would like to have the day and time of the sighting cleared up, but did not indicate or suggest to Dr. Matheson which day they would prefer the sighting to have been.

Next, Detective McCulla left and the session between Dr. Matheson and Ms. Haghnegahdar began. The entire hypnosis session between Dr. Matheson and Ms. Haghnegahdar was videotaped and heard at the voir dire. The hypnosis consisted of Dr. Matheson putting Ms. Haghnegahdar into a very relaxed state. Once in this state, he asked her to describe the event of seeing Mr. Trochym coming out of Ms. Hunter’s apartment on her way home from school. At this point, she recalled more details than before, such as the colour of his clothing being “dark” and a “scary” look he gave her.

After describing this, Dr. Matheson asked her to describe what happened afterwards, specifically what she did once she arrived at her own apartment and for the rest of the day. Through this she recalled that she had a snack, then took a nap, was woken up by her alarm clock and had wanted to go back to sleep but did not because she was worried she would be late to pick up her daughter who was at piano class until 5:00 p.m. She then described going to pick up her daughter. At one point, Dr. Matheson asked: “Just notice what day is it?”, to which Ms. Haghnegahdar responded: “Oh every Wednesday, every Wednesday she has to practice, piano practice....” It was by associating having to pick up her daughter from piano lessons, which were always on Wednesdays, with seeing Mr. Trochym coming out of the apartment that same day, that Ms. Haghnegahdar was able to determine that she saw him on Wednesday as opposed to Thursday.

In the post-hypnosis interview with Detective McCulla immediately following the session, Ms. Haghnegahdar confirmed that her memory of seeing Mr. Trochym on Wednesday was directly associated with having to pick up her daughter from her piano lesson that day. As well, Ms. Haghnegahdar reiterated those details she recalled in the session concerning his attire when she saw him. “We — I — I saw him ah with the dark a dark jacket and dark pants and before I didn’t remember but after I had been hypnotized I remember his jacket was ah zipped up to under his ah cheek,” as well as his “scary eyes.” I note that she did not say during this interview that Mr. Trochym was wearing a leather coat or windbreaker. The interview between Detective McCulla and Ms. Haghnegahdar was videotaped and heard at the voir dire [the special hearing on the post-hypnotic evidence itself].

There was one more interview between the police and Ms. Haghnegahdar that took place on November 10, 1992. The sole purpose of this interview was to show her a picture of the appellant to see if this was the same man she claimed to have seen leaving Ms. Hunter’s around 3:00 p.m. on Wednesday, October 14.

During the voir dire, the trial judge heard five days’ worth of evidence. The Crown called Detectives McCulla and Clarke and Dr. Matheson to testify to their interaction with Ms. Haghnegahdar and each other. The defence called two expert witnesses, Dr. Pollock, a clinical psychologist, working in the therapeutic application of hypnosis, and Dr. Yarmey, an expert on memory.

The defence experts were able to raise a couple of concerns about adherence to the Clark guidelines (R. v. Clark (1984), 13 C.C.C. (3d) 117 (Alta. Q.B.)), though these were fairly trivial. First, Dr. Pollock noted that the information concerning the case given to Dr. Matheson was not in writing as required by guideline 3, but instead was oral and was videotaped. However, he admitted on cross-examination that they still fulfilled the purpose intended by the guidelines, that is, to monitor and minimize the risk of inadvertently conveying information to the hypnotist. Second, both Dr. Pollock and Dr. Yarmey suggested that Dr. Matheson may have unintentionally assumed that Ms. Haghnegahdar was recovering memory by linking events together when it was possible that she was not, and this may have influenced her. The trial judge found, however, in the context of the session as a whole that Dr. Matheson’s assumption did not seem unreasonable or suggestive....

Dr. Pollock also talked about confabulation and the difficulty, even for the hypnotist, of determining which refreshed memories might be real and which might be imagined. The potential for a subject to be overly confident in their new memories and for “memory hardening” to occur were also identified. As well, both Dr. Pollock and Dr. Yarmey raised concerns about the possibility of pre- and post-hypnosis suggestion. On cross-examination, the Crown was able to demonstrate that none of these concerns were live concerns with regards to Ms. Haghnegahdar’s evidence. Both defence experts conceded that independent corroboration of hypnotically refreshed memories was one way to assess its reliability. Dr. Pollock also clarified this for the trial judge:

THE COURT: And one of the mechanisms whereby a recovered memory can be evaluated is by making that memory referable to other known facts?

WITNESS: Yes, that’s true. If there is external, independent corroboration of the recollection.

THE COURT: So one should approach memories that have been “recovered” through hypnosis with some measure of scepticism, and one should look for other evidence capable of confirming the reliability of those recovered memories?

WITNESS: Yes, very definitely.

Challenge Questions

Agreement Between Counsel

The trial judge in Trochym allowed this agreement between the Crown and defence counsel: The Crown was permitted to introduce post-hypnotic evidence of Gity Haghnegahdar, the neighbour of the murdered woman. That evidence went to the day and time when the neighbour saw the accused, Trochym, leaving the victim’s apartment.

The agreement between counsel called on the Crown not to make any mention of the fact that the evidence came as a result of hypnosis. In so doing, the Crown was allowed to say in closing argument to the jury that the neighbour’s evidence was uncontested.

Q. Why would defence counsel have entered such an agreement that, on its face, would seem to be hurtful to his client? Was it “improper” for the trial judge to have allowed the agreement?

The agreement brought comment from the majority and the dissent in Trochym. Justice Deschamps, for the majority, made it clear that their view was that the agreement was inappropriate. She stated:

As a result of the agreement entered into by the parties, defence counsel did not cross-examine Ms. Haghnegahdar about her pre-hypnosis statements and the jury was not informed that the witness had undergone hypnosis.

I do not doubt that this agreement came about because defence counsel wished to minimize the risk that the jury would give undue weight to the witness’s testimony if it was informed that she had undergone hypnosis. However, the fact remains that the jury was left without the proper evidentiary basis on which to assess the accuracy of the witness’ testimony. The prejudice caused by the absence of cross-examination was exacerbated by Crown counsel’s closing remarks:

Gity Haghnegahdar also testified that she saw the accused that same afternoon. Gity was certain that it was Wednesday, October 14, 1992, not some other Wednesday, and she was one hundred percent sure that it was the accused. [Defence counsel] was unable to shake her on that in cross-examination. She knew what week it was, she knew what day it was, she knew what time it was....

Gity was sure of her evidence on these issues, and let’s not forget she was interviewed that very week by the police, so the events were still fresh in her mind. It is not a case of someone who is interviewed months afterwards and asked to try to recall events. She [was] interviewed that very week.

Since Crown counsel knew both that Ms. Haghnegahdar had in fact changed her statement regarding the day she saw the appellant and that defence counsel was effectively prevented from cross-examining Ms. Haghnegahdar on the inconsistency between her pre- and post-hypnosis memories, it was unseemly for Crown counsel to characterize Ms. Haghnegahdar’s testimony as being unshaken.

Dissent

Justice Bastarache, for the three dissenting justices, stated:

I cannot agree that it was inappropriate for the trial judge to permit this agreement. It is argued that the impetus for the agreement between the defence and the Crown not to put the issue of Ms. Haghnegahdar’s hypnosis before the jury was a concern by defence counsel that members of the jury might view hypnotically enhanced memories as infallible. As framed, this suggests that defence counsel’s concern was that the jury would have heard that Ms. Haghnegahdar’s memories had been refreshed by hypnosis and would have automatically and uncritically accepted these as true.

As I read the record of the discussions between defence and Crown counsel and the trial judge on this issue, there were two concerns motivating the defence to strike this deal, and these were strictly tactical and not born out of some fear that the jury would uncritically accept the hypnosis evidence.

The first appears to have been about the time it would take to put such evidence before the jury. Second, and relatedly, was a realization that the hypnosis evidence was quite credible and, if the jury were told that it was hypnosis evidence, they would be even more likely to believe Ms. Haghnegahdar....

I am of the view that juries should be informed of efforts to enhance memory, as they are quite capable of assessing this evidence and giving it proper weight. However, there is no absolute rule on this point, and agreements between counsel should be respected where no prejudice is shown to have been caused to a party.

Note: There was no discussion concerning the views of the investigating police officers.

You Be The Judge

A Case for the Curative Provision

The case that follows is real. It was raised in The Queen v. Trochym.

The Facts

The Supreme Court of Canada found that the post-hypnosis evidence in Trochym should not have been allowed. It should not have been presented to the jury. Still, the Crown argued that the error was not substantial enough to have affected the jury verdict of “guilty.” It was a verdict that the trial court allowed.

The Issue

Can a verdict of guilty be permitted even though a legal error occurred during the trial?

Points to Consider

Even though a trial court made a legal error, a guilty verdict may be allowed if there has been no substantial wrong or miscarriage of justice. This result follows because of section 686(1)(b)(iii) of the Criminal Code which states:

On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (b) may dismiss the appeal where (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred [emphasis added].

One class of errors to which section 686 applies is called “harmless errors.” These are errors of a minor nature that can have no practical impact on the verdict.

A second class of errors under section 686 includes “serious” errors which would justify a new trial but for the fact that the evidence presented at trial was so overwhelming that a reviewing court concludes there was no substantial wrong or miscarriage of justice.

The Trochym case was a jury trial. It is the function of the jury to determine the facts and return a verdict. As such, the jury makes no findings of fact. Its deliberations are conducted in secret.

Discussion

In Trochym, Justice Deschamps refused to allow the guilty verdict to stand under section 686(1)(b)(iii) of the Criminal Code. She ruled that the error on the part of the trial court judge in allowing post-hypnotic evidence was serious.

Whether there was no substantial wrong or miscarriage of justice, she said, was a matter to be determined under a high standard. It is not enough to base it on that required in proving a case against a defendant in a criminal trial: proof beyond a reasonable doubt. More is required under section 686(1)(b)(iii) because the appellate court was not present at trial. The evidence must be so overwhelming that the reviewing court would conclude there was no substantial wrong or miscarriage of justice. There was no way, as such, for the appellate judge to measure what went through the minds of the jurors.

Justice Deschamps wrote:

This standard should not be equated with the ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errors reflects a higher standard appropriate to appellate review. The standard applied by an appellate court, namely that the evidence against an accused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirement that the Crown prove its case “beyond a reasonable doubt” at trial.

This higher standard reflects the fact that it is difficult for an appellate court, in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome.

This is not a case where I can conclude that there is no reasonable possibility that the verdict would have been different had the errors not been made. The post-hypnosis evidence, considered critical by the Crown and characterized as significant by the judge, has to be excluded.... Once [this] evidence is withdrawn, it cannot be said that the remaining evidence ”is so overwhelming that [the] trier of fact would inevitably convict.”

The Dissent

Justice Bastarache, for the dissent, detailed the facts of the case as they were presented to the jury. In doing so, he noted that the trial itself took fourteen weeks. He recalled that the Crown brought forward more than forty witnesses.

The testimony of the Crown witnesses, said Justice Bastarache, in part went to the increasingly difficult relationship between Trochym and the victim. On the whole, it can be said that the evidence portrayed Trochym as a controlling and jealous person.

The evidence, again from several witnesses, made it clear that the victim, both before and close to the time of her murder, had told friends that she intended to end her relationship with Trochym.

Justice Bastarache stated:

But more importantly, I do not think that there is any reasonable possibility that the verdict would have been different without the error.... I would add that I would disagree with the assertion by Deschamps J. ... that the standard required for application of the curative proviso is higher than that required for a conviction, and I know of no authority supporting that proposition. [The curative proviso or provision allows a court to substitute a judgment if no substantial wrong or miscarriage of justice would result.]

Indeed, in my view, the evidence against Mr. Trochym was so overwhelming that I have no hesitation applying the curative provisions of §686(1)(b)(iii).

Even excluding the hypnotically enhanced memories of Ms. Haghnegahdar of seeing the appellant leaving [the victim’s] apartment on Wednesday, as my colleague proposes to do, leaves us with her initial evidence of seeing him on Thursday — a time when her murdered body was inside the apartment.

Furthermore, Mr. Trochym had motive and the opportunity to murder [the victim], and a stranger would not have returned to rearrange the crime scene and move the body. He also seems to have known the means of her death before an innocent party could. Moreover, Mr. Trochym’s version of events on key issues was contradicted by more than half of the more than forty Crown witnesses who testified. Even excluding all of the impugned evidence, as my colleague would, we are still left with a great deal of highly probative [acceptable in law] evidence in support of the Crown’s case.

The Role of the Crown and the Role of the Courts as Seen by the Majority and the Dissent in The Queen V. Trochym

The Majority (Justice Deschamps)

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty ... and in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

The Dissent (Justice Bastarache)

A general principle of criminal evidence law is that a just result in criminal trials is best achieved when the decision maker has all relevant and probative information before him or her.... When weighing probative value against prejudicial effect, this must be kept in mind. It must be recalled that prejudicial effect is the likelihood that the jury, even if properly instructed, will use the evidence for an improper purpose; it is not created merely by evidence that is unfavourable to a party’s case.

Second, it must be recalled that our criminal justice system is an adversarial one. It is parties, not the trial judge, who hold the primary obligation of objecting to prejudicial evidence or conduct.... Certainly, the trial judge has an important gate-keeping function, but we cannot superimpose the role of defence counsel onto the trial judge.

Third, the trial judge’s exercise of discretion in whether to admit evidence, to intervene, or permit certain conduct by the parties, deserves deference by appellate courts unless substantial wrong can be demonstrated.

Fourth, and finally, appellate courts must have faith in the intelligence and common sense of juries and in the ability of trial judges to properly charge juries.

A Matter of Time

On the face of it, it would have seemed difficult to retry Trochym. The murder occurred in 1992. Trochym was charged and convicted of second-degree murder in 1995. He was sentenced to life in prison with no chance of parole for ten years.

In 2007, the Supreme Court handed down its decision setting aside Trochym’s conviction. Twelve years had passed between the first conviction and the Supreme Court decision, and fifteen years had passed since the murder itself.

A new trial was ordered. On August 14, 2009, Trochym, having proclaimed his innocence for seventeen years, pleaded not guilty to second-degree murder, but guilty to the lesser charge of manslaughter, citing his drunkenness at the time of the crime.

Justice Nola Garton sentenced Trochym to one day in jail and three years of probation. He had already served seven years and forty-eight days in pre-trial custody and jail.

Hypnosis: An Investigative Tool

Justice Deschamps stated in the Trochym case that hypnosis can be used as an investigative tool. She wrote:

Some novel scientific techniques, such as polygraph examinations, that are inadmissible for evidentiary purposes [in criminal trials] may nevertheless continue to be useful for the investigation of offences. For example, while concerns about oath helping, character evidence and delay may prevent the use of polygraph results in court, these concerns do not preclude police officers from administering polygraph tests as an investigative tool.

Consistent Testimony

Assume that an accident victim believes that a red car struck her. Police, however, want greater certainty and, hopefully, greater detail. They ask the victim to undergo hypnosis, and she agrees. The result: The accident victim confirms her earlier story. She was struck by a red car.

At the trial of the alleged driver of the red car, no mention is made of hypnosis. However, defence counsel asks for more detail as to the identity of the car. The accident victim answers by giving the make, model, and year of the vehicle.

Should the testimony of the accident victim be allowed as to the identity of the car as being red? Justice Deschamps raised this hypothet in Trochym. She would not have permitted the testimony to be received. She wrote:

Where evidence on topics covered during the hypnosis session is concerned, however, the trial judge should not admit it even if the witness did not change his or her testimony while under hypnosis. In my view, it would be inconsistent with the inadmissibility rule to allow those parts of the testimony, since they are tainted by the inherent shortcomings of the technique of hypnosis.

Moreover, it would seem risky to take it for granted that the testimony at trial will be limited to pre-hypnosis memories. Indeed, the possibility that examination or cross-examination at trial will prompt answers more detailed than the recorded pre-hypnosis memories should not be underestimated....

The overriding problem is that testimony on topics covered in a hypnosis session will be tainted. It will not cease to be tainted merely because it is consistent with a pre-hypnosis statement.

Editorial Comment

The Trochym decision brought editorial comment from the Globe and Mail which stated in part:

The issue of the general admissibility of post-hypnosis testimony didn’t even arise in the 1992 murder case [Trochym] until it reached the [Ontario] Court of Appeal. The sole evidence advanced on the question, Judge Bastarache wrote, “was a handful of American cases in which the [state] courts have opted for categorical exclusion” of post-hypnosis testimony. The judges in the majority relied “almost exclusively on the position of experts discussed in American cases.” The Crown didn’t get a chance to present contrary evidence or to cross-examine the people identified as experts. [Justice Bastarache said,] “I have serious reservations about courts conducting personal research and forming conclusions on the basis of such research in areas that require expertise, like the sciences.”

While it would be invidious [offensive] to suggest that the majority on the Supreme Court was inventing policy on the fly, the six judges do appear to have bitten off more than they were reasonably in a position to chew. The issue of whether the fruits of hypnosis belong in the courtroom is a serious one, and the drawbacks of hypnosis may well outweigh the practice’s probative value. But in all but rejecting its admissibility on so limited a basis of study, the court hasn’t done the justice system any favours (Globe and Mail, June 2, 2007).

References and Further Reading

* Cited by the Supreme Court of Canada.

Bubela, Tania. “Expert Evidence: The Ethical Responsibility of the Legal Profession.” Alberta Law Review 41 (2003–2004): 853.*

Cory, Peter deCarteret. The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation. Winnipeg: Manitoba Justice, 2001.*

Council on Scientific Affairs. “Scientific Status of Refreshing Recollection by the Use of Hypnosis.” Journal of the American Medical Association 253 (1985): 1918.*

Daley, Beth. “Foolproof Forensics?” Boston Globe, June 8, 2004.

Diamond, Bernard L. “Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness.” California Law Review 68 (1980): 313.*

“Doctor Inquiry to Have Subpoena Power.” Canadian Press. April 23, 2007.

Evans, Barrie K. “Hypnotically Induced Testimony: Implications for Criminal Law in New Zealand.” New Zealand Law Journal 348 (1994).*

Frater, Robert J. “The Seven Deadly Prosecutorial Sins.” Canadian Criminal Law Review 7 (2002): 209.*

Harset, Justin. “The Use of Hypnotically Enhanced Testimony in Criminal Trials.” Melbourne University Law Review 20 (1996): 897.*

“Hypnosis on Trial.” Globe and Mail. June 2, 2007.

McLean, Jesse. “After 17 Years, Stephen Trochym Admits Slaying.” Toronto Star, August 15, 2009.

Ome, Martin T. “The Use and Misuse of Hypnosis in Court.” 27 International Journal of Clinical and Experimental Hypnosis 27 (1979): 311.*

Perell, Paul M. “Proof of an Event of Which a Witness Has No Memory.” Advocates’ Quarterly 26 (2003): 95.*

Shaw, Gary M. “The Admissibility of Hypnotically Enhanced Testimony in Criminal Trials.” Marquette Law Review 75 (1991): 1.*

Wagstaff, Graham F. “Hypnosis and the Law: A Critical Review of Some Recent Proposals.” Criminal Law Review 152 (1983).*

Webert, Daniel R. “Are the Courts in a Trance? Approaches to the Admissibility of Hypnotically Enhanced Witness Testimony in Light of Empirical Evidence.” American Criminal Law Review 40 (2003): 1301.*

Chapter 5

DNA Testing: Another Form of Search and Seizure?

Law sets the procedures for police to compel DNA samples in a crime scene investigation. Law also permits the Crown to introduce the results of DNA testing, and it allows courts to consider such results. The constitutionality of these laws, part of the Criminal Code, was considered in S.A.B. v. The Queen and the Attorney General of Canada, Ontario, Quebec and New Brunswick, decided by the Supreme Court on October 31, 2003. Justice Louise Arbour handed down the decision for a unanimous court. That ruling, which measures the law, part of the Criminal Code, against the Charter of Rights and Freedoms, forms an important part of this chapter.

Among the questions raised in this chapter are:

What is DNA?

How may DNA be used to fight crime?

Can a person be compelled to give his/her body samples for DNA analysis?

What is Canada’s National DNA Bank?

There is no question that the forced taking of samples for DNA testing is a search and seizure within the meaning of law. Police taking one’s blood against that person’s wishes is an invasion of personal privacy — even if it is in reasonable pursuit of a criminal investigation.

We will examine the constitutional limits placed on such action or, more precisely, the limits placed on police and courts under the Charter of Rights and Freedoms. In the S.A.B. case, the facts centred on whether the alleged offender impregnated a fourteen-year-old. She said he did, and the first step in identifying the offender was to establish the child’s paternity.

It was at this point that police sought and obtained a warrant without hearing from the accused (called in law ex parte). It permitted them to compel him to give a blood sample which could be (and then was) used in evidence at his later trial for sexual assault and sexual exploitation. The facts will be developed more fully in the discussion that follows.

We will follow and somewhat expand upon the path taken by Justice Arbour in setting out the decision of the Court. That path was intended to establish the statutory background for the forced taking of DNA samples. This provides a context, Justice Arbour stated, for determining whether the forced search and seizure was “reasonable” within the meaning of section 8 of the Charter which provides: “Everyone has the right to be secure against unreasonable search and seizure.”

We will go beyond the path set by Justice Arbour by providing a more in-depth look at the nature of Canada’s National DNA Bank, which was only briefly mentioned by Justice Arbour. That facility, referred to as NDDB, is an ongoing depository for DNA samples from repeat convicted offenders of violent and sexual crimes. We will describe the “success” of the NDDB in its “hit” score of matched DNA.

As well, through “You Be the Judge” and “Challenge Questions,” we will raise related Charter issues. The most important, perhaps, is the extent to which the right against self-incrimination trumps any Crown right for warrants to compel search and seizure of DNA samples.

Yet, the start point properly is one of defining the nature of DNA and its role in criminal investigations. In that regard, it is well to state the extent to which DNA analysis is the same as, or goes beyond, the historical investigatory tool of fingerprinting.

DNA Defined

Deoxyribonucleic acid (DNA) is a long, double-stranded molecule that looks like a twisted rope ladder or double helix. Sometimes referred to as the blueprint of life, DNA is the fundamental building block for one’s entire genetic makeup.

An individual’s DNA results when sperm and egg unite. The result is equal amounts of DNA from that person’s mother and father. DNA is found in every tissue in the human body. The DNA in the blood is the same as the DNA in the skin cells, saliva, and the roots of one’s hair.

With the exception of identical twins, each person’s DNA is unique. As such, DNA is a powerful tool for identifying individuals.

Testing

DNA can be taken from a small biological sample, such as a few drops of blood. This sample can be analyzed and used to create a unique and individual DNA profile. In many ways, it is like a genetic fingerprint. A DNA profile, drawn from a known biological sample, can be compared to other DNA profiles stored in a data bank.

If a profile match results, the two samples likely come from the same person. If the profiles don’t match, the samples likely come from different people. The word “likely” means that scientists can put the outcome of the comparisons in terms of odds of the same outcome with a different person. (This was the thrust of the experts’ testimony in the S.A.B. case, discussed below.)

The DNA molecule is very stable. It is difficult to destroy. This means that scientists can get new information from old biological evidence or from otherwise damaged samples, such as clothing. The stability of the molecule, combined with the unique features of each person’s DNA and the accuracy of current DNA analysis techniques, makes this human identification technology an important part of many police investigations.

Hair: New Evidence?

Consider the appeal in 2013 of the first-degree murder conviction of Leighton Hay. He was charged with the shooting death in 2002 of Colin Moore, a respected community figure, at a Toronto nightclub where a community fundraiser was being held. Hay had served ten years of a life sentence. The Association in Defence of the Wrongly Convicted took Hay’s appeal, which related to new forensic evidence that Hay’s lawyers claimed would prove Hay’s innocence — hair samples.

In an unusual move, the Supreme Court, in a 7–0 decision, ruled that a new trial was necessary to consider the “fresh evidence.” Justice Rothstein, speaking for the Court, said the new evidence “could reasonably be expected to have affected the jury’s verdict.... The interests of justice require that the Court remit the matter for a new trial, in which the Crown would have the opportunity to adduce evidence challenging the reliability of the fresh evidence.”

The Facts

The Crown presented evidence that Hay and Gary Eunick shot Moore several times in a dispute over paying a cover charge after arriving at the club after midnight. Eunick was identified by multiple witnesses. Hay was identified by just one witness — and that witness said that a two-year-old photo looked 80 percent like him.

The evidence against Hay rested in hair found in Hay’s bathroom garbage, as well as hair found in Hay’s electric razor. The Crown prosecutor argued that Hay had shaved his scalp to change his appearance and prevent identification by witnesses.

Both men were convicted on first-degree murder.

Hay, through his lawyers, had the hair tested and, through experts, obtained opinions that the samples did not come from his scalp. The Court stated: “Mr. Hay argues that the fresh evidence establishes that the hair clippings did not come from a shave of Mr. Hay’s scalp and that, as a result, acquittal or a new trial is warranted.”

The Supreme Court ruling overturned the decision of the Ontario Court of Appeal.

A Form of Fingerprinting?

Is DNA testing just another form of fingerprinting? Fingerprinting can do no more than disclose similarities between one set of prints and another. The results of DNA testing can go far beyond those of fingerprinting.

It is possible through DNA testing to get a physical and even a limited snapshot of the emotional makeup of an individual. For example, this picture can include gender, hair colour, whether the person is right-handed or left-handed, and the likelihood of genetic diseases. Further, in one type of DNA testing (mitochondrial) it is even possible to determine whether such characteristics have been passed from a mother to her children. In 1996, the FBI in the United States set up a lab to do this more complete testing.

DNA Uses Beyond Criminal Law: Some Possible Cases

The S.A.B. case was a criminal proceeding involving the paternity of the fetus as a key element of evidence. DNA testing was central to resolving that question. Paternity, of course, can determine civil liability — that is, whether an individual is the father and, as such, bears responsibility for the support of the child. That same determination of parentage can aid in resolving claims to the estate of a deceased person (i.e. genetic relationship).

Tort Actions

Genetic information could be used as evidence in various tort (usually negligence) actions, including those for personal injury, medical negligence, or product liability. For example, in the United States, wrongful life and wrongful birth cases have been brought for failure to inform patients of the risks of having children with serious genetic disorders, and for the negligent administration of tests for genetic diseases.

The legal elements of a claim in negligence often are that the defendant owed the plaintiff a duty of care; the defendant breached that duty; and the plaintiff suffered damage that was caused by the breach of the duty and was not too remote from it in law. Where negligence is established, the court may award damages to the plaintiff.

It has been said that, in the past, the tort system, with some exceptions, has treated all persons as identical. Generally there has been no basis for isolating individual risk factors from the risk posed to the general population. Now, however, there are a number of ways in which genetic information and, in particular, genetic test results could potentially be applied by courts in tort actions.

A defendant in a negligence action may use genetic information to disprove the plaintiff’s charge that he or she caused the plaintiff’s injury. For example, where a plaintiff had a genetic predisposition to the same condition that he or she ultimately developed, the defendant could argue that it was the predisposition, rather than the defendant, that caused the injury. Alternatively, a defendant might argue that the predisposition was a contributing cause of the injury in order to minimize his or her own liability.

Palm Prints: Beyond Fingerprints — Better Than DNA?

Law enforcement officers and prosecutors have moved to another form of fingerprinting: palm prints. Police estimate that 30 percent of prints lifted at crime scenes (for example, from knife hilts, gun grips, steering wheels, and window panes) are of palms, not fingers. By “palms” we mean all of the “friction ridged skin” on a person’s hands. These patterns, unique to all individuals, are found on the soles, palms, and even the writer’s palm, as the outer side of the hand is called.

In April 2003, the New York City Police began having prisoners place their whole hand, not just their fingertips, on the glass platen of a scanner when their prints are captured. Since December 2003, the department has been able to do computerized matches of the one hundred thousand palm prints it has already collected. As the database grows, it will become one of the largest of its kind. The cost to upgrade the existing police archive, digitize the palm prints, and purchase additional scanners is estimated at $11.7 million (U.S.).

The palm print database already has been put to use. Three people were murdered in 2001 in an apartment over the Carnegie Deli, a popular restaurant in Manhattan. Police ran a check on one suspect and learned he had been arrested in Georgia. The palm print card from that arrest was carried to New York by a special courier. It matched a palm print found on duct tape used to bind the victims.

Fighting Crime: Technology’s Limits

Palm print and DNA testing have broadened the scope of crime investigation. But, there are limits to the effectiveness of technology in law enforcement. Not the least of these limits is the need for police to be aware that crime has been committed. They would have difficulty bringing their forensic tools to bear in the absence of a belief that there has been a crime.

Consider those who kill by poison. In 2003, Charles Cullen, a New Jersey nurse, admitted to killing a number of patients with drug overdoses during his sixteen-year career. It was a career which included five job discharges related, at least in part, to the mishandling of lethal drugs and suspicions (but no more than that) regarding some patient deaths.

Mark Essig, an author, wrote:

Thanks to chromatography and later developments like mass spectrometry and immunoassay, even tiny amounts of a poison, absorbed into the blood and distributed throughout the body, can now be separated out. It is a simple matter to detect digoxin, the heart medication that Mr. Cullen allegedly used to kill a New Jersey priest and several others.

But before toxicologists can find evidence of poison, they have to be asked to look for it. The best science in the world can’t detect a crime unless someone first suspects that a crime took place. Because the medical profession lacks adequate [and practical] standards for reporting complaints against nurses, Mr. Cullen was able to hop from job to job, obscuring an alarming pattern of behavior. It should now be clear that both state licensing boards and the federal National Practitioner Database — created in 1990 to track troubled doctors and nurses — must take their responsibilities more seriously (New York Times, January 4, 2003).

Challenge Question

Without a Body, How Can Murder Be Proved?

A family of three disappears. Mother, father, and child have not been seen for several days. Mail and newspapers have accumulated. Some of the neighbours are concerned and call police, who visit the home and find the door unlocked. The inside of the home is strewn with overturned furniture, and there appears to be blood spots on the floor. An “amber” alert call goes out for the child, and officers are asked to find the parents as well.

A search is conducted in the neighbourhood, the city, the province, nationally, and even internationally. All those who had any contact with the family are asked to co-operate and, for the most part, they do. The family cannot be found.

Believing that the home of the family might be a crime scene, police obtain the proper authorization to conduct a detailed search. They find a few strands of hair on a living room chair. Checking that hair against specimens filed with a national DNA bank of convicted felons, police find a match. The hair appears to be from a felon previously convicted of aggravated assault. He resides in the area of the family home.

Police believe that, at the very least, they have is a “person of interest.” They consult with the crown prosecutor: Suppose, they ask, that the family cannot be found — that they are dead.

Q. Would it be possible to bring murder charges against the “person of interest” — to name him as the accused? Can murder charges be laid without a body?

Yes. David Butt, a Toronto-based criminal lawyer and former prosecutor, said that with comprehensive police investigation laying the foundation of the case, it is not impossible to prosecute a first degree murder case without a body having been found and examined. Indeed, Butt is one of the few lawyers in Canada who has successfully prosecuted a first degree murder case without a body of the victim having been found.

Butt said that that there are three “ideas” necessary for an effective prosecution:

Almost without exception, murder trials are heard by a jury of twelve persons who, in making their decision, draw on the evidence filtered through their own life experiences. The goal, quite simply, is to provide an explanation for both the crime and the missing remains that makes sense.

Next, the prosecutor must tap the powerful tool of circumstantial evidence. “Circumstantial evidence,” said Butt, “is simply a matter of proving what we cannot see. We do this all the time.”

Finally, the prosecutor must demonstrate that there are no reasonable alternative explanations for the absence of a body. Butt said that silence after a disappearance — i.e. no ransom demand — can mean that “murder is staring at you in the face” (Globe and Mail, July 15, 2014).

The Birth of DNA Evidence — Innocence and Guilt

In 1983, a fifteen-year-old girl was found raped and murdered along a lonely footpath called Black Pad that separated a cemetery from a psychiatric hospital in the British village of Narborough in Leicestershire. For the police, however, this murder was different. The murderer had left his genetic identity in seminal stains found on the victim’s body and clothing.

About three years later, another fifteen-year-old was raped and murdered. Her body was found on a footpath in the village of Enderby, a short distance from the first murder scene. Again, seminal stains were found on the clothing and the body of the victim.

The serological protein forensic test developed from seminal stains identified the contributor as having the phosphoglucomutase (PGM+1) secretor A status that matched the first victim’s killer profile. This is found in approximately 10 percent of the male population of Britain.

Arrested and Freed

A major investigation quickly resulted in the arrest of a young kitchen porter who was charged with the second murder. For police, the question then seemed to be whether the porter also was responsible for the first murder.

In an attempt to solve both murders and link the biological evidence, a new test soon to be known as “DNA fingerprinting” was applied by Dr. Alec Jeffreys, the scientist who had developed the procedure. When the test was completed, Dr. Jeffreys had exonerated an innocent man (the prime suspect) as well as linked both murders through an identical genetic signature. On November 21, 1986, in the Crown Court of Leicester, the young kitchen porter made legal history as the first person to be exonerated from a crime through the use of genetic evidence.

Finding the Murderer

One year later, Colin Pitchfork was arrested and later found guilty of the rape and the murder of both girls. After an extensive investigation and the comparison of 4,583 genetic profiles of male residents in the surrounding villages, Dr. Jeffrey’s test had matched the genetic profile to one person.

In 1988, Pitchfork was sentenced to life for the two murders and he became the first person to be convicted for murder based on genetic fingerprinting, known in North America as DNA typing.

The Queen v. S.A.B. — DNA Warrants

Now we come to the Criminal Code provisions for issuing DNA warrants, which are court orders to compel taking DNA samples for testing and possible use in trials. It was here that Justice Arbour, speaking for the Supreme Court of Canada, chose to begin her analysis of The Queen v. S.A.B.

The approach of the Court was to point out those legislative provisions designed to both protect the individual against what section 8 of the Charter prohibits — unreasonable search and seizure — and the interest of the state in finding the truth as to the commission of a crime. (Yet, it remained to be seen whether the requirements of the Charter had been satisfied, whatever might have been the intent of the Parliament. That will bring us to the second part of Justice Arbour’s analysis.)

This is what the Criminal Code provides as to the issuance of DNA warrants:

Such warrants can be issued allowing only the Crown to be heard, without affording the person from whom the DNA sample is to be taken the right to question the warrant. (This is called an ex parte hearing.) The reason for not allowing a full hearing is that the Parliament sensed the individual from whom the DNA sample would be taken, if notified in advance, might flee.

However, this does not mean an absence of a hearing. The law enforcement officers must come with a sworn statement (called an affidavit) before a provincial court judge (a more elevated position than that of what had been a justice of the peace). The officer(s) there must convince the judge that there are reasonable grounds to believe that one of the specifically listed offences in the Criminal Code (primarily serious violent and sexual offences) has been committed (Criminal Code, section 487.04).

Further, the affidavit of the officers must show that a “bodily substance” was found in the victim or near that person; that the person named in the affidavit was a “party” to the offence; and that the DNA analysis sought will show whether the bodily substance sought was from the individual named in the warrant.

Even bearing in mind these conditions, the judge is given further discretion under the Criminal Code. The judge must be satisfied that the issuance of a DNA warrant is in the best interests of the administration of justice (Criminal Code, section 487.05(1)). In this regard, the judge must consider the nature of the claimed offence and the circumstances of its alleged commission, and whether the law officer named to take the DNA sample has, in fact, the training and experience to do so (Criminal Code, section 487.05(2)). It should be noted that the law officer is given permission under the law to seek the DNA warrant by telephone, fax, or e-mail when that officer believes it would be “impractical to appear personally before a judge (Criminal Code, section 487.05(3)).”

(Note: For all this, the law will allow the judge to order a full hearing with representation by the person from whom the DNA sample is sought. This may be done where the judge believes the interest in the administration of justice so requires.)

The DNA warrant is no blanket permission to extract blood or, for example, hair samples. The Criminal Code designates what may be done in this regard, such as plucking individual hairs, swabbing the lips, tongue and inside cheeks and mouth (buccal swabs), and taking blood by pricking the skin surface with a sterile lancet (Criminal Code, section 487.06(1)).

The DNA warrant must be served on the individual subject to the test. The warrant must state the procedure for taking such samples; the purpose of the DNA tests, and the authority to use as much force as necessary to take the designated tests. If the individual subject to the warrant is a young person, there is the right to have counsel (or a parent, or a friend) present at the time the test samples are taken. The young person may waive his/her rights for such representation but, to do so, the waiver must be in writing (signed), or by audio or video.

The Use of the Seized DNA Materials

A DNA sample could allow for disclosure of an individual’s biological, medical, or even genetically rooted emotional characteristics. But, such information is specifically denied to law enforcement officers in seeking and carrying out DNA tests. Their statutory authority is limited to forensic DNA analysis. Under the statute, this means only the “comparison of the DNA of the bodily substance from a person in execution of a warrant with the results of the DNA in the bodily substance” of that resulting from the DNA test.

The test may be used only for the purpose of determining if there is a “match” between the sample taken at the crime scene and that taken under the DNA warrant. Its use is strictly limited to this narrow sphere of law enforcement, nothing more. To do otherwise would result in a crime punishable as an offence on summary conviction (Criminal Code, section 487.08(3)).

Indeed, the test results are to be destroyed by the state: (a) if the results are negative, that is, they do not match; (b) if the person is acquitted of the offence charged; or (c) at the end of a year, if there is a discharge following a preliminary hearing, or a withdrawal of the information on which the charges were based. (Destruction is also ordered under the law on the same circumstances if the test DNA sample was provided voluntarily.)

The Charter Applied to the Facts and the Criminal Code

Justice Arbour addressed herself to the application of the Charter to the facts and the provisions of the Criminal Code cited. Based on the facts, she found that S.A.B. was charged with sexual assault and sexual exploitation of a fourteen-year-old under sections 271 and 153(1)(a) of the Criminal Code.

The charges stemmed from incidents that allegedly took place in Hinton, Alberta, around July 1996. (Note: The decision of the Supreme Court of Canada was handed down on October 31, 2003 — seven years after the claimed incidents.) A few months following the asserted sexual assault, the fourteen-year-old discovered that she was pregnant. She told her mother that S.A.B., who had been living with the family for several months, had sexually assaulted her. She had an abortion and the police seized the fetal tissue.

The police then obtained an ex parte DNA warrant to compel a blood sample from S.A.B. Typically, a forensic DNA analysis will compare two samples of DNA to determine if they match. In this case, however, the DNA analysis compared S.A.B.’s blood sample with the fetal tissue (the combined DNA of the fourteen-year-old and S.A.B.) taken from the fourteen-year-old’s body to confirm or deny that S.A.B. had fathered the fetus. In effect, this was a paternity test. The results of that test led to S.A.B. being charged as indicated.

At trial, evidence was given by the DNA expert that five of the seven DNA samples taken from S.A.B. were “conclusive and established the probability that S.A.B. was not the father of the fetus to be one in ten million [emphasis added].” The expert further testified that the sixth test sample was damaged and yielded inconclusive results. The seventh sample, the expert continued, did not match; it was a “mutation.” According to so-called international standards, if there had been a second mutation, then the conclusion would have to be that S.A.B. was not the father. This did not happen, and there was no question raised concerning the so-called “international standards.”

The Supreme Court Rules

Having stated the facts, and summarized relevant provisions of the law relating to ex parte DNA warrants, Justice Arbour then applied section 8 of the Charter which prohibits unreasonable search and seizure. Speaking for a unanimous Court, she ruled that both the statute and its application were in compliance with the Charter. She stated:

The taking of bodily samples under a DNA warrant clearly interferes with bodily integrity. However, under a properly issued DNA warrant, the degree of offence to the physical integrity of the person is relatively modest.... A buccal [inside the mouth] swab is quick and not terribly intrusive. Blood samples are obtained by pricking the surface of the skin — a procedure that is, as conceded by [S.A.B.], not particularly invasive in the physical sense. With the exception of pubic hair, the plucking of hairs should not be a particularly serious affront to privacy or dignity.

Importantly, §487.07(3) of the legislation [Criminal Code] requires that the person who is authorized to take samples do so in a manner that respects the offender’s privacy and is “reasonable in the circumstances.”

Section 487.06(2) additionally provides that the warrant “shall include any terms and conditions that the provincial court judge considers advisable to ensure that the seizure of a bodily substance authorized by the warrant is reasonable in the circumstances.”

In my view, the statutory framework alleviates any concern that the collection of DNA samples pursuant to a search warrant under §§487.04 to 487.09 of the Criminal Code constitutes an intolerable affront to the physical integrity of the person.

The informational aspect of privacy is also clearly engaged by the taking of bodily samples for the purposes of executing a DNA warrant. In fact, this is the central concern involved in the collection of DNA information by the state. Privacy in relation to information derives from the assumption that all information about a person is in a fundamental way his or her own, to be communicated or retained by the individual in question as he or she sees fit.... There is undoubtedly the highest level of personal and private information contained in an individual’s DNA. However, it is important to recall that the bodily samples collected pursuant to a search warrant issued under §§487.04 to 487.09 are collected for a limited purpose, clearly articulated in the Criminal Code.

The DNA warrant scheme limits the intrusion into informational privacy by using only non-coding DNA for forensic DNA analysis. As previously noted, s. 487.04 defines “forensic DNA analysis” as the comparison of the DNA in the bodily substance seized from a person in execution of a warrant with the results of the DNA in the bodily substance referred to in §487.05(1)(b). In other words, the DNA analysis is conducted solely for forensic purposes and does not reveal any medical, physical or mental characteristics; its only use is the provision of identifying information that can be compared to an existing sample [emphasis added].

Additional factors limit the intrusion into informational privacy: §487.05(1)(b), §487.08(1) and §487.08(2) place limits on the use of the information obtained from DNA analysis including making it an offence to use a bodily substance obtained in execution of a DNA warrant except in the course of an investigation of the designated offence. That the DNA warrant scheme explicitly prohibits the misuse of information is an important factor that ensures compliance with §8 of the Charter.

It is also necessary to consider the interests of the state in seeking a DNA warrant. The state’s interest in the DNA warrant scheme is a significant one. Effective law enforcement benefits society as a whole. Subsumed under the larger head of “law enforcement” is the interest in arriving at the truth in order to bring offenders to justice and to avoid wrongful convictions. The enormous utility and power of DNA evidence as an investigative tool has been documented both by trial judge[s] and by the Ontario Court of Appeal.... Indeed, “a DNA match will in many cases, with virtual certainty, eliminate the person as a suspect ... [or] provide evidence that it was his bodily substance(s) that was found at one or more of the places set out in §487.05(1)(b)”.... This is an identification tool of great value to the criminal process.

I can therefore conclude that, in general terms, the DNA warrant provisions of the Criminal Code strike an appropriate balance between the public interest in effective criminal law enforcement for serious offences, and the rights of individuals to control the release of personal information about themselves, as well as their right to dignity and physical integrity.

A Canadian DNA Database

In 2000, about eleven years after the RCMP first began to use DNA testing, a Canadian national DNA database was established. At the time, other DNA databases existed in the U.S., Germany, Britain, Norway, Finland, Belgium, and Denmark. However, Canada’s database (which cost an initial ten million dollars and is housed in RCMP headquarters in Ottawa) is somewhat unique, according to Dr. Ron Fourney, who was then in charge of the program. At an estimated annual operating cost of five million dollars, Dr. Fourney said that there is heavy reliance on robotics in processing, developing, and comparing DNA profiles.

At the time of establishment of the database, it was projected that each DNA test would take about five days to process. Police estimated that thirty thousand samples from known serious offenders, suspected criminals, and crime scenes would be processed annually. Dr. Fourney said: “When we started ten years ago, we might have needed a biological sample which was the size of a penny. Today’s technology is so revolutionary that 10 percent of what would fit on the head of a pin is all we’d need to do a case.”

DNA at Birth?

Some law enforcement officials in the U.S. have suggested the establishment of a national DNA bank for all residents. DNA would be taken at birth, and it would be used exclusively for criminal investigations (New York Times, January 4, 2003).

Of Dragnets and “Volunteers” — And International Agreements

In the cases of the two murdered girls — described in “The Birth of DNA Evidence — Innocence and Guilt” — British police, in effect, conducted a “dragnet” of males living in the area near the crime scenes. They asked for — and got — genetic samples from 4,583 men. The samples were given “voluntarily” (though any refusal might well have been met by publicity). One of the samples, as noted, resulted in a “match.” That person was charged with the two murders and found guilty.

Suppose the same kind of dragnet were initiated by police in Canada. Would police be able to take the samples of those that had not matched and place them in a data bank for later possible matching in other crimes? Could police share such information with law enforcement officers in other nations?

The answer is no to both questions, but with a caution as to the second.

Section 487.05(1)(b) of the Criminal Code states that bodily substances provided voluntarily by a person, and the results of the DNA analysis, are to be destroyed without delay if there is no match in terms of that being investigated. In addition, removal is required if the results are put into electronic form.

It is unclear as to how such testing results can be destroyed once they are “shared” with other nations. Of course, the problem is limited if member nations subject to agreements stipulate that they will use information supplied by Canada only as permitted by Canadian law. As noted, DNA databases already exist in a number of other countries. Canada has negotiated and entered agreements with other nations that possess DNA databanks to set up a system where genetic information can be exchanged. Officials of the Canada National Data Bank in their website have stated:

As an additional safeguard, plus an important transparent link to the public, the National DNA Data Bank Advisory Committee was appointed by the Solicitor General of Canada in early 2000 to function as an independent body to oversee the effectiveness and efficiency of the National DNA Data Bank. The Committee was established pursuant to the DNA Identification Act and the annexed Data Bank Advisory Committee Regulations and is charged to report to the Commissioner of the RCMP annually.

Since the inauguration of the Committee and the opening of the Data Bank in June 2000, members have regularly reviewed all aspects of the implementation process and the Data Bank operations. Particular attention has been directed to the interrelationships between the Crime Scene Index and the Convicted Offenders Index. As well, the DNA Data Bank will be subject to auditing by the Office of the Privacy Commissioner at any time. Also, a representative of the Privacy Commissioner sits on the DNA Data Bank Advisory Committee to ensure that the Data Bank has available expert advice in the field of individual privacy [emphasis added].

The DNA Identification Act provides for criminal penalties for anyone communicating information relating to the biological samples being analyzed or retained, and penalties for using the data derived from the analysis for any purpose other than that intended. It is very clear in the Act that the DNA Data Bank is a post-conviction data bank providing an investigative tool for law enforcement purposes only.

The same standards that apply to the use of DNA profiles in Canada will govern international exchanges with other criminal justice organizations. There is provision for cooperation with other jurisdictions in the use of this valuable investigative tool. Such interaction, however, must be sanctioned by international agreements that clearly define the conditions under which DNA profile data may be exchanged.

A Common Standard

The Combined DNA Index System (CODIS) is the North American accepted standard for DNA profile data that allows for reliable and valid electronic transmission in a secure format. The FBI and the U.S. Department of Justice provide the software at no charge to any law enforcement agency performing the DNA profiling procedure which follows a similar code of quality assurance and justice. Once the DNA profile is appropriately formatted, it is uploaded to CODIS from the Convicted Offender Index.

The Canadian National DNA Data Bank

The Criminal Code contains two sets of provisions dealing with the collection and use of DNA evidence. The first, which was the subject of the S.A.B. case, relates to search and seizure of DNA evidence in the course of an investigation. The second deals with the collection of DNA evidence from convicted persons for inclusion in the National DNA Data Bank (NDDB). (See, Criminal Code, sections 487.051–487.058, 487.071, and 487.091. These provisions should be read along with the DNA Identification Act, Statutes of Canada, 1998, chapter 37.) There is, however, a connection between the two sets of laws

The NDDB has provisions designed to protect, up to a point, DNA privacy concerns. These conditions are specified in the DNA Identification Act. As noted, there are two indices maintained by the NDDB. The first is the Convicted Offenders Index (COI). For this index, biological samples resulting in DNA profiles can be collected only from convicted offenders and they can only be used for law enforcement purposes. They can’t be used, for example, to develop a medical profile of the individual. Further, the class of convicted offenders from whom samples for DNA purposes can be extracted is limited to those found guilty of violent and/or sexual offences such as murder, attempted murder, sexual assault, assault, breaking and entering with intent (and breaking out), and armed robbery. Those on this list are fingerprinted for identification. Their prints and their DNA profiles are then digitally stored. Once they are properly included on this index, they remain there for the rest of the lives of the persons tested.

The second grouping , called the Crime Scene Index (CSI), is a separate electronic index composed of DNA profiles resulting from crime scene investigations of the offences listed above. The discussion in S.A.B. sets out the conditions both for requiring DNA profiles and, once obtained, when they must be removed from the data bank.

As seen by the NDDB, the purposes of the indices are:

to link crimes together where there are no suspects;

to identify suspects;

to eliminate suspects where there is no match between crime scene DNA and a DNA profile in the NDDB; and

to determine whether a serial offender is involved.

The Process for DNA Following A Conviction

At the time a sample is collected from a convicted offender, a unique number or “bar code” is attached. It remains the sole identifier throughout the analysis process so that the personal identity of the donor is not known to the DNA Data Bank staff.

When the collected samples are first received at the NDDB, the fingerprints on the sample collection card and the fingerprint identification form are compared to ensure that they match. This is an important first step which confirms the Data Bank information. After this confirmation of match, the biological sample is separated from the information contained on the fingerprint identification form. The fingerprint identification form and the documentation are then forwarded to the Canadian Criminal Records Information Service (CCRIS) within the RCMP’s Information and Identification Services Directorate.

The biological sample card, identified solely by its bar code, is transferred to the NDDB laboratory for analysis. Upon successful completion of the DNA profiling process, a ‘’flag’’ (which states “DNA on known offender Data Bank’’) is placed on the offender’s record to indicate that the offender has a reliable DNA profile entered into the COI. This is primarily provided as an easy reference check so that police officers or prosecutors may, under section 487.053 of the Criminal Code, advise the court that there is already a DNA profile belonging to the offender in the DNA Data Bank.

If the DNA profile from a crime scene sample (analyzed by one of the operational forensic laboratories) matches the DNA profile from a convicted offender sample, the submitting laboratory is contacted by CCRIS and can then associate the crime scene sample with an individual.

When a match in the Crime Scene Index is found between two crime scene profiles, the submitting laboratories are notified. The identity of the donor or the specific nature of the biological sample (blood, hair, etc.) are not known to the staff of the DNA Data Bank. However, the operational forensic laboratories which originally submitted the DNA profile data from the crime scenes can now exchange information, linking the crime scenes.

PRIVACY CONCERNS

The question of privacy is dealt with in the following ways by the NDDB:

Scientific processes: The DNA analysis process used by the Data Bank examines only a small segment of the entire human DNA blueprint which encodes anonymous pieces of DNA. Apart from the ability to identify gender, there is no known link to physical or medical attributes.

Methodology: By design, the genetic and personal data are separated. The Data Bank will have the DNA profile and original biological sample, but the personal information and full set of fingerprints of convicted offenders are in the custody of the Canadian Criminal Records Information Service (CCRIS), and are retained under strict security provisions.

Physical limits: It will not be possible for unauthorized persons to enter the Data Bank and view or retrieve data. In order to be able to interpret the data, specialized knowledge is required. For genetic DNA data to be linked to an individual, access to two separate and secure data bases, housed in separate locations, would be required.

Legal: The act specifies criminal penalties for unauthorized use of the DNA profile data or the samples themselves.

Challenge Question

The “Last Resort” Test

Court warrants — that is, authorization for law enforcement officers to intercept and record private communications — are ordered only if other investigative means have been tried and failed, or are not likely to succeed. These are requirements of section 186(1)(b) of the Criminal Code. They are also requirements of the Charter. (See, R. v. Araujo, [2000] 2 Supreme Court of Canada Reports 992.)

Such conditions are a “last resort” investigative tool. This means that, among other things, the burden is on the Crown to show that other investigative means are not available to it.

Q. To what extent, if any, should DNA warrants be subject to the wiretap rule of “last resort”?

Justice Arbour, speaking for the Supreme Court of Canada in S.A.B., refused to apply the “last resort” test to DNA warrants. There are, she said, real differences between wiretaps and DNA testing. In a wiretap, the police hear all that is spoken. No lines are drawn as to the communication itself. In DNA testing, the process is only concerned with whether there is a match with a known sample taken from the crime scene. Justice Arbour wrote:

I see no reason to import, as a constitutional imperative, a similar requirement in the case of DNA warrants. There are obvious differences between the use of wiretaps as an investigative tool, and recourse to a DNA warrant.

Wiretaps are sweeping in their reach. They invariably intrude into the privacy interests of third parties who are not targeted by the criminal investigation. They cast a net that is inevitably wide. By contrast, DNA warrants are target specific. Significantly, DNA warrants also have the capacity to exonerate an accused early in the investigative process.

Challenge Questions

Of Strip Searches and DNA Warrants

Q. Isn’t a warrant commanding the taking of a person’s DNA similar to a strip search? If so, then isn’t the standard for granting such a warrant placed at a higher level?

These were questions raised by defence counsel in S.A.B. and Justice Arbour, for the Court, rejected the challenges. She stated that strip searches have been found by the Court to be “inherently humiliating and degrading.” But, such searches are permitted under the law, subject to the same standard as any other search, namely, reasonable grounds.

Whether reasonable grounds exist must be related to the facts of the case. Taking a blood sample or a bit of hair, Justice Arbour said, is not the same as forcing a person to strip and initiating a body cavity search. She wrote:

The [defendant’s] second concern is that the standard of “reasonable grounds” alone, which is appropriate for ordinary warrants, is insufficient for searches and seizures that violate bodily integrity and force self-conscription. In my view, this exaggerates the degree of intrusiveness of DNA warrants. With respect to the concerns for personal dignity and bodily integrity, the proper execution of a DNA warrant would compare favourably to strip searches.... Strip searches [have been] held to be “inherently humiliating and degrading,” but nonetheless valid, provided certain conditions were met, when conducted on the basis of a reasonable and probable grounds standard. The standard of “reasonable grounds” is well recognized in the law and I see no reason to adopt a higher one in the case of DNA warrants.

You Be the Judge

A Matter of Self-Incrimination?

The issue in this case is real. It was raised in S.A.B.

The Facts

On the night of June 4, 2003, on a dimly lit street in Vancouver, Oscar, the victim, was struck on the head several times with a heavy, blunt instrument. It seemed clear to police forensic experts that Oscar tried to fight off his assailant. Splattered blood — some of which did not match Oscar’s blood type — was found at the crime scene. In addition, some hair follicles not belonging to Oscar were found. Oscar fell into a coma from which it is uncertain that he will regain consciousness. No one came forward who might have witnessed the assault.

Within hours of the assault, police learned that David, a person long known to them and convicted of several assaults in the past, was identified as being in the area at the time. The police wanted a DNA warrant to test David’s blood, and to take a hair sample from him for DNA analysis. The investigating officers came before a provincial judge to obtain such an order. They did this without informing David of their request. (This is called an ex parte hearing.)

The law under which the police have acted is the same as in S.A.B. David, however, refused to submit to a blood sample or to allow anyone to take any hair from him.

The Issue

May David claim the right against self-incrimination to justify his refusal to give blood and hair samples for DNA analysis?

Points to Consider

Sections 487.04–487.09 of the Criminal Code, as described in S.A.B., clearly allow a judge to grant a warrant based on police sworn statements (affidavits) that show a relationship between the DNA sought and their investigation of a specific crime.

It is also clear, as applied to David, that the necessary relationship exists for such a DNA warrant.

The principle against self-incrimination is basic to many of those rights afforded by the Charter. That right is based on the individual not being forced to give evidence against himself/herself to support any charges brought by the police or to aid the Crown’s prosecution of that person.

The principle against self-incrimination finds expression in several provisions of the Charter. For example, section 8 of the Charter, as was pointed out in the discussion of S.A.B., provides that “everyone has the right to be secure against unreasonable search and seizure.” In effect, the individual is made secure from the state taking him/her (or his/her property) on unreasonable grounds.

Also, section 11(c) of the Charter states that “any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence.”

Discussion

The right against self-incrimination is an important value within the Charter, said Justice Arbour in S.A.B. But, it is a right that is subject to reasonable restraints. That which is reasonable must be judged on the facts in the context of the interests of the individual and those of the state.

Those interests may be characterized as: (1) protecting against unreliable confessions; and (2) protecting against the abuse of state power. Confessions (evidence) obtained by force may not be truthful. They may be given to satisfy the perceived sense of what the law enforcement office wants rather than the truth as to what actually happened. And, bearing in mind that ours is a free society with rights constitutionally entrenched, there is a need for courts to help guard against an abuse of power by the state. It is the state that must prove the defendant violated the law.

Viewing the interests of S.A.B. and taking a bit of blood from him as against the interests of the state in seeking the truth as to the paternity of the foetus, Justice Arbour had little difficulty in denying any claim to the right against self-incrimination under the Charter. The same result likely would come from the facts relating to David.

The Supreme Court Speaks in S.A.B.

Justice Arbour, speaking for the Supreme Court of Canada in S.A.B., wrote:

Not all conscriptive [required] evidence will violate the principle against self-incrimination. Indeed, that principle has a limited scope, and requires different things at different times.

As this Court recognized ... the principle against self-incrimination rests on the fundamental notion that the Crown has the burden of establishing a “case to meet” and must do so without the compelled participation of the accused.

The question, then, is whether the DNA warrant provisions at issue in this case impermissibly violate the principle against self-incrimination, thus rendering any search or seizure performed under them unreasonable, contrary to [the Charter]. In my view, a consideration of the principle’s underlying rationales indicates that they do not.

First, unlike cases involving testimonial compulsion, there is no concern with unreliability. On the contrary, one of the benefits of DNA evidence is its high degree of reliability.

The second rationale [concerns] protection against the abuse of power by the state. As a majority of this Court [had earlier] indicated ... the degree to which the principle is [involved] will depend in part on the extent to which coercion was used by the state in obtaining the statements; the extent to which the relationship between the accused and the state was adversarial at the time the conscriptive evidence was obtained; and the presence or absence of an increased risk of abuses of power by the state as a result of the compulsion....

The adversarial nature of the relationship between the state and the individual and the degree of coercion in the present context are undoubtedly high.... A person has little choice but to comply with the request for blood, hair or saliva made under a valid DNA search warrant. Further, the context in which the bodily samples are taken is obviously adversarial, there being reasonable grounds to believe that the target of the warrant was a party to an offence.

However, while these factors are highly engaged, it is important to note that under the DNA warrant provisions, there are a number of safeguards in place to prevent abuse of those provisions by the state.

In particular, the prior judicial authorization, circumscribed by strict requirements of reasonable and probable grounds and stringent limits on the potential use of the collected DNA evidence, ensures that the power to obtain bodily samples is not abused. It is also important to acknowledge that, as previously noted, the degree of intrusion both physical and informational is limited....

To conclude, the [DNA] legislative scheme delineated ... is sensitive to the various interests at play. On balance, the law provides for a search and seizure of DNA materials that is reasonable. In light of the high probative value of forensic DNA analysis, the interests of the state override those of the individual. Forensic DNA analysis is capable of both identifying and eliminating suspects, a feature that seriously reduces the risk of wrongful convictions. The DNA provisions contain procedural safeguards that protect adequately the multiple interests of the suspected offender. The DNA warrant scheme therefore complies with the Charter.

You Be the Judge

Challenging the Expert

The issues in the case that follows were raised in S.A.B. They involve not the constitutionality of the DNA warrant, but rather challenges to the DNA expert for the Crown.

The Facts

Matthew was charged with sexual assault and sexual exploitation of Joan, a fourteen-year-old. The charge came after Joan discovered that she was pregnant, and told her mother that Matthew had sexually assaulted her. Joan had an abortion. Her claim was reported to police, who seized fetal tissue for DNA testing.

Police then obtained a DNA warrant from a provincial judge in an ex parte hearing (i.e. Matthew was not informed). This was done on the basis of the investigating officer’s sworn statement (affidavit) that Matthew was a real suspect for the offence claimed.

A blood sample was forcibly taken from Matthew and subjected to DNA analysis. Based on the test results, Matthew was brought to trial. There, he denied having sexual relations with Joan.

A key question in the trial went to the paternity of the fetus. Was it the result of Joan being impregnated by Matthew?

Frieda was qualified as an expert on DNA testing. During the trial, she stated that Matthew’s blood had been subject to seven different samples, each of which had been tested in accordance with standard “international” procedures. One sample had been damaged, and accordingly was treated by testing laboratory as “inconclusive.” Another sample did not produce a DNA match for a reason that Frieda described as a “mutation,” an unexplained phenomenon.

However, Frieda testified, there was a match for the remaining five samples. That match compared the DNA of the fetus and that of Joan, the fourteen-year-old. Again, following international guidelines, Frieda stated that the “probability” that Matthew was not the father of the fetus to be one in ten million.

Defence counsel asked the trial judge to disregard the evidence of Frieda which was a necessary part in the proof of the Crown’s case. The request of defence counsel was denied. Matthew was found guilty as charged.

In the case, there was, of course, other evidence offered by the Crown, including the fact that Matthew had lived with Joan’s family for several months. And, there was the testimony of Joan, herself, as to sexual relations with Matthew.

The Issue

Should the trial judge have disregarded the evidence of Frieda as a matter of law?

Points to Consider

Defence counsel was given full opportunity to cross-examine Frieda both as to her credentials as an expert, and the facts upon which she relied in coming to her conclusions.

Defence counsel did not challenge Frieda as to the nature or interpretation of the international guidelines she had described in her testimony.

The evidence given by Frieda went to matters of fact and not law. That is, for example, was there a match between the DNA of Matthew and that of the fetus?

How that “match” was expressed — namely, as a matter of “probability” with reference to population (one in ten million) — also is a matter of fact, and not law.

The significance of the non-matching test sample (the “mutation”) also is a conclusion of fact. Frieda had testified that, according to international guidelines, if there had been two “mutations” (non-matching samples), her view as an expert would have been that Matthew could not have impregnated Joan.

Discussion

At issue is the role of the trial judge. In S.A.B., defence counsel asked the Supreme Court of Canada, as a matter of law, to declare that the trial judge was obliged to disregard the evidence of the expert because there was no foundation in fact to support the expert’s conclusions.

Justice Arbour, for the Court, rejected the argument, just as it would be rejected in this “You Be the Judge” exercise. The trial judge heard evidence from the expert as to the standards for testing DNA. That evidence was subject to full cross-examination. Indeed, it was open to the defence to introduce expert witnesses of their own to counter that which was presented.

There was a reasonable basis, Justice Arbour found in S.A.B., for the trial judge to be satisfied that the standards for DNA testing had been met. And, in that regard, there was a reasonable basis for the trial judge to give weight to the conclusions arrived at by the expert.

Basis for Trial Court Decision

Justice Arbour stated:

In my view, it is clear that the expert’s reliance on the international guidelines was reliance on information obtained and acted upon within the scope of [of the trial judge’s] expertise. It was entirely open to the [accused] to challenge the expert on that issue. Absent such a challenge, the expert was entitled to refer to the sources within her field of expertise to explain and support her conclusions.

The record offers little information about the international guidelines referred to by the DNA expert. However, her expert evidence was tested according to the normal processes of the adversarial system. [The expert] was cross-examined by the defence, and the trial judge was satisfied that the current standards in technology and competence had been met.

It was [for] the trial judge to give the opinion of the expert the weight that he considered appropriate and there is no basis upon which this Court could interfere with his assessment of that evidence. The trial judge was [fully aware] of his obligation to weigh carefully and appropriately the evidence [given] by the DNA expert. [Further,] his verdict was not based solely on the DNA results, but also to a large degree on the circumstantial evidence and on his finding that the complainant’s testimony was credible.

Difficult Science

The science of DNA and DNA testing are not easy matters for judges and lawyers. Justice Ming Chin of the Supreme Court of California stated:

The use of genetic information in court raises new evidentiary challenges. DNA evidence is often complicated and laborious to present, and those without a scientific background — including most judges and jurors — often have difficulty understanding it.

A courtroom is not an ideal forum for resolving conflicts between scientific theories, yet judges will constantly be asked to referee battles among lawyers and scientific experts over the acceptance of DNA evidence. The complexity and rapid development of genetic science will [only increase] the problem. Scientists need ongoing dialogue and continuous re-examination to test their theories. In courtrooms, decisions must be made at the close of the evidence. This reality creates a natural tension between science and the law.

In the United States, an organization known as the Einstein Institute for Science, Health and the Courts (EINSHAC) provides education to judges, courts, and court-related personnel in relation to a number of scientific and technical areas, including genetic evidence. According to its website:

“Our calling is to make science accessible to the instruments of justice. Our mission is to provide judges, courts and court-related personnel with knowledge tools related to criminal and civil justice proceedings involving evidence from the genetic sciences — genetics, molecular biology, biotechnology and molecular medicine — and from new discoveries and technologies in the environmental and neuro-sciences. In sum, we emphasize the science and impacts of ... technologies in judicial system proceedings.”

Paternity Testing/Crime Identity Testing — Differences

Paternity testing has traditionally used blood groups and protein markers, but these have been overtaken by the much more powerful DNA methods.

The basic procedures are the same for paternity testing as for crime investigation. The experience of paternity testing laboratories can be valuable in the criminal context. Indeed, paternity testing sometimes provides evidence in a criminal proceeding, such as that in S.A.B.

For example, a discrepancy between mother and child can offer information about error rates or “mutation.” Many laboratories do both forensic and paternity analysis.

Nevertheless, the two applications are different in important respects. Paternity testing involves analysis of the genetic relations of child, mother, and putative father. Crime investigations usually involve the genetically simpler question of whether two DNA samples came from the same person. Mutation is a factor to be taken into account in paternity testing. It is not an issue in identity testing.

In cases brought to establish paternity for child support, inheritance, custody, and other purposes, the law gives the claims of the parties roughly equal weight and uses a civil, rather than the higher criminal, standard of proof (beyond a reasonable doubt).

Forensic Errors by the FBI Lab

In 2012, U.S. officials began an investigation of problems at the FBI lab after the Washington Post reported that flawed forensic evidence involving microscopic hair matches might have led to the convictions of hundreds of potentially innocent people. Most of those defendants never were told of the problems in their cases.

The inquiry includes 2,600 convictions and forty-five death-row cases from the 1980s and 1990s in which the FBI’s hair and fibre unit reported a match to a crime scene sample before DNA testing of hair became common. The FBI had reviewed about 160 cases before it stopped, officials said.

Nearly every criminal case reviewed by the FBI and the Justice Department as part of the investigation included flawed forensic testimony from the agency, government officials said (Washington Post. July 30, 2014).

References and Further Reading

* Cited by the Supreme Court of Canada.

Butt, David. “How Do You Prove Murder Without a Body?” Globe and Mail, July 15, 2014.

Chayko, G.M., E.D. Gulliver, and D.V. Macdougall. Forensic Evidence in Canada. Aurora, ON: Canada Law Book, 1991.*

Cohen, Stanley A. “Search Incident to Arrest.” Criminal Law Quarterly 32 (1989–90): 366.*

Commission on Life Sciences. “The Evaluation of Forensic DNA Evidence.” Washington, DC, 1996.*

Dewan, Shaila K. “Watson: Scan a Palm, Find a Clue.” New York Times, November 21, 2003.

Essig, Mark. “How Poisoners Succeed in a ‘C.S.I.’ Nation.” New York Times, January 4, 2003.

Fine, Sean. “Citing New Evidence, Supreme Court Orders New Trial in Toronto Nightclub Murder.” Globe and Mail, November 9, 2013.

Halbfinger, David M. “Police Dragnets for DNA Tests Draw Criticism.” New York Times, January 4, 2003.

Hsu, Spenser S. “Federal Review Stalled After Finding Forensic Errors by FBI Lab Unit Spanned Two Decades.” Washington Post, July 30, 2014.

Makin, Kirk. “Supreme Court Backs DNA Seizures by Police.” Globe and Mail, November 1, 2003.

“Nurse Charged in Death; Says He Killed Others.” New York Times, December 16, 2003.

Paciocco, David M. “Self-Incrimination: Removing the Coffin Nails.” McGill Law Journal 35 (1989): 73.*

Salhany, Roger E. The Police Manual of Arrest, Seizure & Interrogation, 6th ed. Scarborough, ON: Carswell, 1994.*

“The Priest Whose Death Led a Nurse to Confess.” New York Times, December 17, 2003.

Chapter 6

Stop! Holding Police to Account

Charged with an offence, standing before a court, the accused is shielded by the Charter with a presumption of innocence. Facing a police criminal investigation, there is no such shield, though how the police go about their probe will be subject to certain real conditions such as those imposed on the kind of searches that may be conducted, and the right to counsel at the time of police detention.

The job of the police is to get the facts, identify the wrongdoer, and assist the Crown in preparing charges. And, at another level, the job of the police is to “serve and protect” — to prevent crime from occurring.

Among the questions raised in this chapter are:

May money damages be awarded if police breach the Charter?

Do courts have “discretion” in setting a remedy for violation of the Charter?

What differences are there between money damages in a private action and one brought for Charter breach?

The law gives a wide berth to the police in carrying out their duties. Yet, the Courts have drawn a line in the sand between what police are allowed in a crime investigation and being held accountable for improper action.

The basis for that accountability may come in part in individual actions for money damages against the alleged offending police officers. The basis for such damage actions may be based on claims that: (1) the police have breached the Charter, causing injury to another; or (2) they have been negligent in carrying out their duties, again causing injury to another.

There is, of course, also the real possibility of internal police review — sometimes with civilian participation — that can lead to disciplinary action against individual police officers. That review can be initiated both by citizen complaint and by the police themselves.

Further, should charges be pressed and should the accused claim police violation of her/his rights, a court may examine the claim and, on a finding of police negligence in its investigation, enter a remedy that could include dismissing the complaint and even an order holding the Crown responsible in money damages for the wrong done. For example, this might include payment of counsel fees for the accused, which in a complex case can amount to several hundred thousand dollars.

In two cases, we will explore the scope of each legal claim. Remember, police officers are employed by government. As long as they act within the scope of their job, it is government, itself, as the employer, who likely will be held liable for improper police activity causing injury to others.

Now, let us discuss the cases.

The Facts of City of Vancouver v. Ward

We begin with an innocent person caught up in a protest crowd. We will tell his story, and then move to the Supreme Court of Canada which finally decided the case — City of Vancouver v. Ward, 2010 Supreme Court of Canada Cases 27 (July 23, 2010). This was a unanimous decision handed down by the chief justice. The fact that it was a unanimous decision and one written by the chief justice adds weight to the Court’s ruling. It tends to more firmly establish the case as a precedent.

On August 1, 2002, then Prime Minister Jean Chrétien took part in a ceremony to mark the opening of a gate at the entrance to Vancouver’s Chinatown. During the ceremony, the Vancouver Police Department (VPD) received a tip that an unknown individual intended to throw a pie at the prime minister — an event that had occurred elsewhere two years earlier. Neither the identity of the informant nor evidence as to his “credibility” were considered by the Supreme Court of Canada.

According to the tipster, the suspect was described as a white male, thirty to thirty-five years old, 5’ 9” tall, with dark short hair, and wearing a white golf shirt or T-shirt with some red on it.

Alan Cameron Ward, a Vancouver lawyer, attended ceremony. On that day, Ward, a white male, had grey, collar-length hair, was in his mid-40s, and was wearing a grey T-shirt with some red on it. Based on his appearance, he was identified by police — mistakenly — as the would-be pie-thrower.

When the VPD officers noticed him, Ward was running and appeared, to the officers, to be avoiding them. They chased him down and handcuffed him. Ward loudly protested his detention and created a disturbance, drawing the attention of a local television camera crew. The television broadcast showed that Ward had a “very agitated look on his face,” “appeared to be yelling for the benefit of the onlookers,” and was “holding back” as he was being escorted down the street.

Ward was arrested for breach of the peace and taken to the police lock-up in Vancouver, which was under the partial management of provincial corrections officers. Upon his arrival, the corrections officers, following what they believed were established procedures, instructed Ward to remove all his clothes as part of a strip search.

Ward complied, but not fully. He refused to take off his underwear. The officers did not insist on complete removal of his clothes. He was never touched physically during the search.

After the search was completed, Ward was placed in a small cell where he spent several hours before being released.

While Ward was at the lockup, VPD officers impounded his car for the purpose of searching it once a search warrant had been obtained. Detectives subsequently decided that they did not have grounds to obtain the search warrant or evidence to charge Ward for attempted assault.

(To obtain a search warrant, as has been noted, police officers must show — often to a justice of the peace or a similar judicial officer — that there was probable cause to believe that a specific law had been or was about to be violated. This can be done by the investigating police officer swearing — in writing — to the facts which led her/him to the conclusion that the law noted either had been or was about to be violated. Apparently, police did not have enough information to make the required showing to a justice of the peace.)

Ward was released from the lock-up approximately four hours after he was arrested, and several hours after the prime minister had left Chinatown following the ceremony.

Ward Comes to Court

Ward sued. He asked the British Columbia provincial court to award him damages against individual police and correction officers, as well as the City of Vancouver and the province of British Columbia, for his arrest, detention, strip search, and car seizure. There were two bases for Ward’s action:

Ward sued in tort. This is a private or individual right of action based in common law (judge-made law) principles that over the centuries has expanded — often in response to changes in society such as the advent of the automobile, the industrial revolution and, now, a technological revolution. New facts affecting how society functions can bring what appears to be new law, though the underlying principles often remain.

There are some fundamental principles that have guided the court in the development of tort law. Broadly stated, a court looks to see if it can find that the defendant owed a definable duty to the plaintiff and whether that duty was breached in a way that caused harm to the plaintiff. And, if there were such a recognizable duty and it had been breached, then the plaintiff had a remedy by way of proving damages which, for the most part, had to relate to money compensation for real injuries. The damages were to be paid from the pocket of the defendant.

The difficulty for Ward in such an action was one of finding a duty owed by the police for what they did. After all, the police acted under orders designed to protect the safety of the public and that of public officials in carrying out their duties. The police did not arrest Ward knowing that he was not the person identified by the tipster. Nor did the police impound Ward’s car knowing it was not the vehicle to be used in a confrontation with the prime minister. The harm that befell Ward was the result of an accident.

Ward sued for violation of his Charter rights. This was an action against government. The Charter of Rights and Freedoms, part of the Constitution of Canada, imposes duties on government in its relationship with citizens (and those subject to its terms). The lower courts in British Columbia found that the strip search violated Ward’s Charter right to be free from unreasonable search and seizure, including impounding and examining his vehicle (section 8 of the Charter). In addition, the trial judge concluded that the city violated Ward’s right “not to be arbitrarily detained or imprisoned” by keeping him in a police lockup longer than necessary (section 9 of the Charter and also, according to the trial court, a tort).

The Supreme Court of Canada: A Matter of Remedy

Ward wanted a declaration from the court that his Charter rights had been violated. However, he also wanted money damages.

(Put to the side for the moment the cost of hiring a lawyer when he, himself, was a lawyer. There is a saying that a lawyer would be a fool to represent himself/herself. For the most part, a client in a court battle needs the objectivity and knowledge that a lawyer other than himself/herself can bring to a case.)

The trial court judge ruled that Ward could seek damages for violation of his Charter rights. He pointed to section 24(1) of the Charter which provides: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

The trial court judge awarded Ward five thousand dollars for the strip search and one hundred dollars for the seizure of his car. (Ward, his counsel, and lawyers for the City of Vancouver met and reached an agreement as to the costs of legal fees. So this matter was not before the Court.)

The issue was not that Ward could show actual damages such as medical injuries that might be quantified. Rather, what Ward could show was the emotional trauma incident to the police strip search and his placement in a cell for more than four hours.

The Supreme Court of Canada had to decide whether the Charter allowed for such damages and, in doing so, to state the reasoning in support of such decision.

Who Pays?

If damages could be assessed for breach of an individual’s Charter rights, who, in the final analysis, must pay money to the victim?

It is the government (the City of Vancouver, in Ward’s case) that must pay the damages. What this means, as a practical matter, is that the taxpayers who fund the government become responsible for such damages as Ward may claim. This marks a major difference between a private action against an individual for negligence and one for damages resulting from breach of a Charter right.

Chief Justice McLachlin, in City of Vancouver v. Ward, stated:

The term damages conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages. As Thomas J. notes in Dunlea v. Attorney-General, [2000] New Zealand Court of Appeal 84, [2000] 3 New Zealand Law Reports 136, at para. 81, a case dealing with New Zealand’s Bill of Rights Act 1990, an action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable [where the state takes the place of an individual], but [a distinct] public law action directly against the state for which the state is primarily liable.”

In accordance with section 32 of the Charter, this is equally so in the Canadian constitutional context. The nature of the remedy is to require the state (or society) ... to compensate an individual for breaches of the individual’s constitutional rights. An action for public law damages — including constitutional damages — lies against the state and not against individuals [as such]....

Actions against individual actors should be pursued in accordance with existing causes of action [such as negligence].

Editorial Comment

The Globe and Mail made the following editorial comment on City of Vancouver v. Ward:

Making the state pay for serious breaches of individual rights is, on balance, a good thing for Canadians. As taxpayers they will be out-of-pocket, as in the case of a Vancouver lawyer awarded $5,000 for a wrongful strip search, an award deemed fair last Friday by the Supreme Court of Canada. But they will have all the more reason to hold police and other government agencies accountable for respecting their rights as individuals.

Better to be out-of-pocket than nearly naked and vulnerable for no justifiable reason in a police station, as Alan Cameron Ward, a veteran lawyer, found himself on August 1, 2002. He was detained and carted off to jail on suspicion that he planned to pie the prime minister, Jean Chrétien. It was case of mistaken identity. The suspect was said to be 30 to 35 and wearing a T-shirt with some red in it. Mr. Ward was in his mid-40s and was wearing a T-shirt with red in it.

Anyone might have been in Mr. Ward’s shoes, or T-shirt, that day. Anyone might have done as he did, and made a great deal of noise when arrested, which prompted the police to charge him with breach of the peace. And anyone might have ended up, as Mr. Ward did, in his underwear. More than likely, most people would have been completely exposed. Mr. Ward refused to take off his underwear, and police did not insist.

The police were within their rights to arrest him, even mistakenly. But why did they feel a strip search (defined as forcing the a suspect to undress) was appropriate here? Was there any sign he was carrying a weapon or contraband? Was he truly dangerous? Why did a pat-down or frisk search not suffice?

The law on strip searches should have been fresh in the minds of police. It was only eight months earlier that the Supreme Court [of Canada] had ordered an end to the era of routine strip searches. As the court said in December 2001, and repeated on Friday [July 23, 2010], strip searches are inherently humiliating and degrading. Even though there was no malice on the part of the Vancouver police, they should have been aware of the minimum Charter standards, the court said.

The breach of Mr. Ward’s rights could not be made up for simply by giving him back his pants. The financial reward sends the right message that some strip searches are unnecessary and harmful, and that individual rights deserve respect (Globe and Mail, July 27, 2010).

The “Standard” for Charter Relief

The chief justice, speaking for a unanimous Supreme Court, made it clear that the primary interest of the Court in fixing upon a remedy was what would advance the interests of the Charter.

At one level, it would seem that the Court could have fashioned a broad remedy both as to the fact and as to the amount of damages. After all, the chief justice stated, consider the language of section 24(2) of the Charter. It allows a tribunal with authority to interpret and apply the Charter to grant appropriate and just remedies.

The chief justice, however, saw a need to structure the discretion given the Court by the Charter to set standards for application to Ward and for the future. It would be improper, she said, to cast that discretion in a “strait-jacket” to reduce this wide discretion to some sort of binding formula for general application in all cases.

Setting Standards

These are the more detailed standards the chief justice said should be applied. She wrote:

Briefly, an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made....

Damages for breach of a claimant’s Charter rights may meet these conditions. They may meaningfully vindicate the claimant’s rights and freedoms. They employ a means well-recognized within our legal framework. They are appropriate to the function and powers of a court. And, depending on the circumstances and the amount awarded, they can be fair not only to the claimant whose rights were breached, but to the state which is required to pay them.... I therefore conclude that section 24(1) is broad enough to include the remedy of damages for Charter breach.

A Choice of Remedy

The chief justice wrote that money damages for Charter violation was a new remedy. It had never before been ordered — outside the common law remedy, for example, of tort (negligence): “That said, granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally [slowly, step by step, in accordance with the facts of each case]. Charter damages are only one remedy amongst others available under section 24(1), and often other section 24(1) remedies will be more responsive to the breach.”

The chief justice spoke of what she called the three functional purposes of a remedy: compensation, vindication, and deterrence. She defined each purpose and those definitions will be repeated here in the language of the Court:

Compensation has been cited by Lord Woolf Chief Justice (speaking of the European Convention of Human Rights) as fundamental. In most cases, it is the most prominent of the three functions that Charter damages may serve.

The goal is to compensate the claimant for the loss caused by the Charter breach. The applicant should, insofar as this is possible, be placed in the same position as if his ... rights had not been infringed.... Compensation focuses on the claimant’s personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety.... Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury.

Vindication, in the sense of affirming constitutional values, has also been recognized as a valid object of damages in many jurisdictions.... Vindication focuses on the harm the infringement causes society.... Violations of constitutionally protected rights harm not only their particular victims, but society as a whole. This is because they impair public confidence and diminish public faith in the efficacy of the [constitutional] protection.... While one may speak of vindication as underlining the seriousness of the harm done to the claimant, vindication as an object of constitutional damages focuses on the harm the Charter breach causes to the state and to society.

Deterrence of future breaches of the right has also been widely recognized as a valid object of public law damages.... Deterrence, like vindication, has a societal purpose.

Deterrence seeks to regulate government behaviour, generally, in order to achieve compliance with the Constitution. This purpose is similar to the criminal sentencing object of general deterrence, which holds that the example provided by the punishment imposed on a particular offender will dissuade potential criminals from engaging in criminal activity.

When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.... Similarly, deterrence as an object of Charter damages is not aimed at deterring the specific wrongdoer, but rather at influencing government behaviour in order to secure state compliance with the Charter in the future.

In most cases, all three objects will be present. Harm to the claimant will evoke the need for compensation. Vindication and deterrence will support the compensatory function and bolster the appropriateness of an award of damages.

However, the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award. Indeed, the view that constitutional damages are available only for pecuniary or physical loss has been widely rejected in other constitutional democracies....

In summary, damages under section 24(1) of the Charter are a unique public law remedy which may serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2) vindicating the right by emphasizing its importance and the gravity of the breach; and (3) deterring state agents from committing future breaches. Achieving one or more of these objects is the first requirement for appropriate and just damages under section 24(1) of the Charter.

You Be the Judge

Note Required/Damages Requested

The case that follows is not real. However, its essence comes from the reasoning in the principal case of City of Vancouver v. Ward.

The Facts

The City of Vancouver had experienced what it considered to be a wave of teenage crime, especially crimes of violence. The city council, with the full support of the mayor, decided to “toughen” the city’s curfew law applicable to all teenagers under the age of sixteen.

A new city ordinance was enacted. It required that no person under the age of sixteen could be on any Vancouver street at night (defined as after 7:00 p.m.) without a note signed by one of his/her parents giving the youth permission. Further, such permission must state “a legitimate purpose” for the youth being away from home.

Police were specifically authorized to question any person who appeared to be under the age of sixteen at the time the curfew came into effect. The failure of the youth questioned to respond to the police officer, or failure to produce a written note satisfactory to the police, would be sufficient cause for the officer to bring the youth to a city youth detention centre. Any youth brought to such a detention centre might be identified and processed in the same manner as any youth otherwise held for detention.

John Z, fifteen, a resident of Vancouver, lived with his mother who was active politically. Municipal elections were to take place in two months. John’s mother had asked him to distribute election pamphlets after he finished his homework. At 8:00 p.m., she gave him a bundle of at least one hundred election pamphlets and told him: “You are to come home no later than 10:00 p.m. — even if you haven’t distributed all the pamphlets.” The new youth curfew law had just come into force.

The city police chief had assigned a special unit to patrol and enforce the new curfew law. A police patrol car, clearly marked as “youth patrol,” spotted John at 9:30 p.m. He had made his last delivery of the pamphlets and was about to return home. The youth patrol officers, in full uniform, stopped the boy. Politely, they asked if he had a note from a parent allowing him to be out after curfew.

John did not have such a note. He was taken to the police car, and transported to a nearby youth detention centre. There he was “processed” in the “normal” way: his pockets were emptied, and the contents placed in envelopes. He was asked to remove all of his clothing except his undershorts. Then, he was given an orange detention centre garment.

Attempts to reach his mother by phone failed for several hours. During that time, she had been frantically trying to find her son. Finally, after four hours, police were able to reach her and inform her of what had happened. Angered, she came to the detention centre and told officers the purpose of her son’s task after curfew. John was then released.

John’s mother, for her son and herself, brought an action to declare the extended curfew a violation of John’s Charter rights. And, in addition, John and his mother asked for damages in the amount of five thousand dollars.

The Issue

It should be stated what isn’t the issue for the purpose of this exercise. The question is not whether the new curfew law violated the Charter, though we will have more to say about this in the next section dealing with points to consider. Rather, the limited question, for our purposes, is whether John and his mother could combine in a single action an attempt to rule the new law in violation of the Charter and, at the same time, ask for damages.

Points to Consider

Assume that the city council had enacted the new curfew law in good faith. They really believed there was a problem of teen violence in the city and that a curfew was a way to control that violence.

The action for damages was brought for violation of John’s Charter rights.

In City of Vancouver v. Ward, the Supreme Court of Canada made it clear that, under certain circumstances, a court could award damages for breach of an individual’s Charter rights.

The action for damages was not brought for enforcement of John’s common law rights (such as an action could be based on negligence). The police were not negligent in stopping and arresting John. They were merely carrying out what they believed a properly enacted law required.

The injury to John for which his mother sought damages centred on the humiliation of a strip search which was carried out in accordance with “normal” procedures of the youth centre.

Discussion

We cannot be definitive in terms of how a court would rule on the facts in this case. Yet, Chief Justice McLachlin made clear some of the applicable standards in her decision in City of Vancouver v. Ward:

Money damages can be ordered for breach of the Charter.

However, she stated, this is a new kind of action. The result is that the court should take an incremental approach (slowly, step by step). Putting it another way, she seemed to say that the courts should go slowly in defining the boundaries for money damages resulting from Charter breach. And, indeed, such is the thrust of this exercise.

Going Slowly — But Going

Chief Justice McLachlin gave an example as to when damages would not be awarded if there had been a breach of the Charter: if awarding damages would interfere with good governance. She cited an earlier case: Mackin v. New Brunswick (Minister of Finance), [2002] 1 Supreme Court of Canada Reports 405. There, it was stated that properly enacted laws should be enforced unless they are “clearly wrong, [made] in bad faith, or an abuse of power. The courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional. In other words, invalidity of governmental action, without more, clearly should not be a basis for liability for harm caused by the action [of government].”

In the legal sense, both public officials and legislative bodies enjoy limited immunity against actions in civil liability [money damages] based on the fact that a legislative instrument is invalid. The chief justice stated:

With respect to the possibility that a legislative assembly will be held liable for enacting a statute that is subsequently declared unconstitutional, R. Dussault and L. Borgeat confirmed in their Administrative Law: A Treatise (2nd ed. 1990), vol. 5, at p. 177, that:

“In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation.”

In theory, a plaintiff could seek compensatory and punitive damages by way of “appropriate and just” remedy under section 24(1) of the Charter. The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances.

Consequently, the reasons [for] the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the established and indisputable laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable [emphasis added].

Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded....

In short, although it cannot be asserted that damages may never be obtained following a declaration of unconstitutionality, it is true that, as a rule, an action for damages brought under section 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on section 52 of the Constitution Act, 1982.

Challenge Question

A Valid Law?

Q. In City of Vancouver v. Ward, for damages to be ordered for breach of his Charter rights, didn’t Ward have the burden of proving that the law under which the police and his jailers acted was “clearly wrong”?

Such was the position taken by the City of Vancouver. Counsel for the city argued that public officials must carry out their duties under valid statutes without fear of liability in the event that the statute is later struck down.

Chief Justice McLachlin, however, speaking for the Supreme Court of Canada, rejected the argument. She stated that the case did not involve a statute that was declared invalid. Indeed, it was not the statute itself that was called into question by Ward. Rather, it was the strip search which was condemned. This was not a subject, as such, covered by the applicable statute.

What If?

Suppose, however, that there was a law and it was one that violated the Charter. Suppose further that it was a law seen as reasonably necessary for the “good governance” of the city. Finally, suppose that an award for damages would interfere with such good governance.

Would the reasoning of the Court in City of Vancouver v. Ward allow for damages to be awarded? Chief Justice McLachlin left this issue open for decision. She wrote:

Another consideration that may negate the appropriateness of section 24(1) damages is concern for effective governance.

Good governance concerns may take different forms. At one extreme, it may be argued that any award of section 24(1) damages will always have a chilling effect on government conduct, and hence will impact negatively on good governance.

The logical conclusion of this argument is that section 24(1) damages would never be appropriate. Clearly, this is not what the Constitution intends. Moreover, insofar as section 24(1) damages deter Charter breaches, they promote good governance.

Compliance with Charter standards is a foundational principle of good governance.

In some situations, however, the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity.

This was the situation in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, where the claimant sought damages for state conduct [under] a valid statute. The Court held that the action must be struck on the ground that duly enacted laws should be enforced until declared invalid, unless the state conduct under the law was “clearly wrong, in bad faith or an abuse of power.” The rule of law would be undermined if governments were deterred from enforcing the law by the possibility of future damage awards in the event the law was, at some future date, to be declared invalid. Thus, absent threshold misconduct, an action for damages under section 24(1) of the Charter cannot be combined with an action for invalidity based on section 52 of the Constitution Act, 1982.

The Mackin principle recognizes that the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy-making functions are one such area of state activity. The immunity is justified because the law does not wish to chill the exercise of policy-making discretion.

The Case of the Wrong Suspect

Jason George Hill, an aboriginal, was a prime police suspect in ten bank robberies in the Hamilton, Ontario, area between December 16, 1994 and January 21, 1995. The crimes, which had a number of common features (modus operandi), were called the “plastic bag robberies.” Among these features were the methods by which the robberies were committed, and the similarities of eyewitness descriptions of the robber. These were descriptions that bore a similarity to Hill.

Police investigation turned up other evidence that pointed to Hill as the “plastic bag” robber. It consisted of the following:

a Crime Stoppers tip;

identification by a police officer based on a surveillance photo;

possible sighting of Hill near the site of a robbery by a police officer;

eyewitness evidence that the robber appeared to be an aboriginal; and

police belief that the robberies were committed by one person.

Police released Hill’s photograph to the media. They then conducted a photo lineup. It consisted of Hill and eleven similar looking Caucasian “foils.” (It should be noted, however, that the “foils” chosen had features intended to give them an aboriginal appearance.)

Hill, having been investigated by police, was arrested, charged, tried, wrongfully convicted, and ultimately acquitted — after spending a total of more than twenty months in jail for a crime he did not commit.

At the time of Hill’s arrest and while he was in police custody, however, there was evidence that he might not have committed the robberies:

Two similar robberies occurred in the area while Hill was in police custody. (The difference in the modus operandi was the presence of the threat of a gun.)

The police received a Crime Stoppers tip that implicated a person named “Frank” as the real robber and indicated that he was laughing because police had arrested Hill.

The police detective investigating the last two bank robberies received information from another police officer that Frank Sotomayer could be the robber. Further investigation disclosed that Sotomayer and Hill looked “very much alike.” The photos from the first robberies seemed to “look more like Sotomayer than Hill.” This information was given to the detective in charge of the investigation of the earlier bank robberies.

Because of the “new evidence,” two of the charges against Hill were dropped. Police believed Sotomayer had committed those robberies. But, the rest of the charges remained.

Legal Proceedings Against Hill

At that point, the legal proceedings began. The Crown had control of the case. At the preliminary inquiry, two charges against Hill were withdrawn by the Crown. The reason: A victim of the robberies testified that Hill was not the person who had robbed her. Later, five more charges were withdrawn by the assistant crown attorney assigned to prosecute the case. This left a single charge on which the Crown moved to prosecute. The reason: Two eyewitnesses — bank tellers — “remained steadfast in their identifications of Hill.”

Hill was tried on that single count and was found guilty of robbery in March 1996. He successfully appealed the conviction on errors of law made by the trial judge. On August 6, 1997, his appeal was allowed and a new trial was ordered. Ultimately, Hill was acquitted of all charges of robbery on December 20, 1999.

Hill first became involved in the investigation of the bank robberies as a suspect in January 1995. He remained involved in various aspects of the justice system as a suspect, an accused, and a convicted person until December 1999. During this time, he was imprisoned for various periods totalling more than twenty months. (It should be noted that this was not a continuous period.)

An appeal before the Supreme Court of Canada was concerned with Hill’s claim that the police investigation was negligent in a number of ways:

The two bank tellers who identified him, and whose evidence was central to the one charge prosecuted by the Crown, were interviewed by the police together — with a newspaper photo identifying Hill as the suspect on the desk where the identification was made.

The photo lineup from which the identifications were made consisted of eleven people — all Caucasians, with the exception of Hill, an aboriginal.

The police failed to re-investigate the cases after they received evidence that might have cleared Hill.

The Standard of Care: The Majority Decision

The majority in Hill v. Hamilton-Wentworth Regional Police Services Board ([2007] 3 Supreme Court of Canada Reports 129) refused to draw, as a matter of principle, lines between victims and suspects. Rather, the same flexible standard was to apply as to any claim for negligent investigations: What would a reasonable police officer do in like circumstances?

This is how Chief Justice McLachlin described that standard and, in doing so, stated her reasons. Because of their importance, we set out her comments fully:

A number of considerations support the conclusion that the standard of care is that of a reasonable police officer in all the circumstances. First, the standard of a reasonable police officer in all the circumstances provides a flexible overarching standard that covers all aspects of investigatory police work and appropriately reflects its realities [emphasis added]. The particular conduct required is informed by the stage of the investigation and applicable legal considerations. At the outset of an investigation, the police may have little more than hearsay, suspicion and a hunch. What is required is that they act as a reasonable investigating officer would in those circumstances.

Later, in laying charges, the standard is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them. The reasonable officer standard entails no conflict between criminal standards.... Rather, it incorporates them, in the same way it incorporates an appropriate degree of judicial discretion, denies liability for minor errors or mistakes and rejects liability by hindsight. In all these ways, it reflects the realities of police work.

Second, as mentioned, the general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances. In cases of professional negligence, this rule is qualified by an additional principle: Where the defendant has special skills and experience, the defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling.” These principles suggest the standard of the reasonable officer in like circumstances.

Third, the common law factors relevant to determining the standard of care confirm the reasonable officer standard. These factors include: the likelihood of known or foreseeable harm, the gravity of harm, the burden or cost which would be incurred to prevent the injury, external indicators of reasonable conduct (including professional standards) and statutory standards.... These factors suggest a standard of reasonableness, not something less onerous.

There is a significant likelihood that police officers may cause harm to suspects if they investigate negligently. The gravity of the potential harm caused is serious. Suspects may be arrested or imprisoned, their livelihoods affected and their reputations irreparably damaged. The cost of preventing the injury, in comparison, is not undue. Police meet a standard of reasonableness by merely doing what a reasonable police officer would do in the same circumstances — by living up to accepted standards of professional conduct to the extent that it is reasonable to expect in given circumstances. This seems neither unduly onerous nor overly costly. It must be supposed that professional standards require police to act professionally and carefully, not just to avoid gross negligence. The statutory standards imposed by the Police Services Act, Revised Statutes of Ontario.,1990, c. P.15, although not definitive of the standard of care, are instructive.

Fourth, the nature and importance of police work reinforce a standard of the reasonable officer in similar circumstances. Police conduct has the capacity to seriously affect individuals by subjecting them to the full coercive power of the state and impacting on their repute and standing in the community. It follows that police officers should perform their duties reasonably. It has thus been recognized that police work demands that society (including the courts) impose and enforce high standards on police conduct.... This supports a reasonableness standard, judged in the context of a similarly situated officer. A more lenient standard is inconsistent with the standards that society and the law rightfully demand of police in the performance of their crucially important work.

Finally, authority supports the standard of the reasonable police officer similarly placed. The preponderance of case law dealing with professionals has applied the standard of the reasonably competent professional in like circumstances....

I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness.

The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness.

So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results.... Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and, therefore, which do not breach the standard of care.

Win the Battle, Lose the Case

Hill won the legal argument. He stated a claim recognized in law as a tort. However, he failed to convince the Court that the facts of his case supported his claim of police negligence in their investigation. In Hill v. Hamilton-Wentworth Regional Police Services Board, Chief Justice McLachlin candidly stated that the police investigation of Hill was “flawed.” But that did not mean the police had acted negligently. Their actions, she said, had to be based on the standards of a reasonable police officer at the time (1995), not on what such an officer would have done in 2007.

In City of Vancouver v. Ward, the chief justice carried forward her reasoning relating to the need for a standard that reflects the facts of any case and, as well, a legal benchmark of reasonableness that, in its nature, has a certain flexibility. She wrote:

Such concerns may find expression, as the law in this area matures, in various defences to section 24(1) claims.... If and when other concerns under the rubric of effective governance emerge, these may be expected to give rise to analogous public law defences.... Where the state establishes that section 24(1) damages raise governance concerns, it would seem a minimum threshold, such as clear disregard for the claimant’s Charter rights, may be appropriate.

Different situations may call for different thresholds, as is the case at private law. Malicious prosecution, for example, requires that malice be proven because of the highly discretionary and quasi-judicial role of prosecutors (Miazga v. Kvello Estate, [2009] 3 Supreme Court of Canada Reports 339), while negligent police investigation, which does not involve the same quasi-judicial decisions as to guilt or innocence or the evaluation of evidence according to legal standards, contemplates the lower negligence standard (Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 Supreme Court of Canada Reports 129).

When appropriate, private law thresholds and defences may offer guidance in determining whether section 24(1) damages would be appropriate and just. While the threshold for liability under the Charter must be distinct and autonomous from that developed under private law, the existing causes of action against state actors [such as cities, or other governmental agencies] embody a certain amount of practical wisdom concerning the type of situation in which it is or is not appropriate to make an award of damages against the state.

Similarly, it may be necessary for the court to consider the procedural requirements of alternative remedies. Procedural requirements associated with existing remedies are crafted to achieve a proper balance between public and private interests, and the underlying policy considerations of these requirements should not be negated by recourse to section 24(1) of the Charter. As stated earlier, section 24(1) operates concurrently [along with] and does not replace, the general law. These are complex matters which have not been explored on this appeal. I therefore leave the exact [boundaries] of future defences to future cases.

Pre-Arrest Investigation

Going back to the Hill case, the chief justice developed and applied the standard of reasonableness to the facts. She reviewed each of Hill’s claims by weighing the facts as a standard of what should be expected of a reasonable police officer. Let’s briefly review her findings:

Hill’s arrest, itself, was not challenged as negligent. The investigation, as it stood, at the time of his arrest, disclosed reasonable and probably grounds required in law.

Hill’s challenge went primarily (though not totally) to police actions before his arrest. His photo was provided by police to the media, and was published. Two witnesses were interviewed together, so that one heard what the other said. And, Hill’s photo was on a desk close to where the witnesses were seated.

As to this, the chief justice said that, viewed by 1995 standards, it was not shown that the police had acted in an unreasonable way. (The same might not be said of the standards of 2007.)

Of more pressing concern to the Court majority in Hill was the claim of negligence resulting in structural bias flowing from the photo lineup where Hill was the only aboriginal. Of this, the chief justice stated:

The first question is whether this photo lineup met the standard of a reasonable officer investigating an offence in 1995. The trial judge accepted expert evidence that there were “no rules” and “a great deal of variance in practice right up to the present time” in relation to photo lineups.... These findings of fact have not been challenged. It follows that on the evidence adduced, it cannot be concluded that the photo lineup was unreasonable, judged by 1995 standards.

This said, the practice followed was not ideal. A reasonable officer today might be expected to avoid lineups using foils of a different race than the suspect to avoid both the perception of injustice and the real possibility of unfairness to suspects who are members of minority groups — concerns underlined by growing awareness of persisting problems with institutional bias against minorities in the criminal justice system, including aboriginal persons like Mr. Hill. (See, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996).)

In any event, it was established that the lineup’s racial composition did not lead to unfairness. A racially skewed lineup is structurally biased only if you can tell that the one person is non-Caucasian and assuming the suspect is the one that’s standing.... Although the suspects were classified as being of a different race by the police’s computer system, at least some of them appeared to have similar skin tones and similar facial features to Hill.

On this evidence, the trial judge concluded that the lineup was not in fact structurally biased. Any risk that Hill might have been unfairly chosen over the eleven foils in the photo lineup did not arise from structural bias relating to the racial makeup of the lineup but rather from the fact that Hill happened to look like the individual who actually perpetrated the robberies, Frank Sotomayer.

Reinvestigation

Hill’s claim of police negligence in the investigation, however, went beyond pre-arrest actions. It included the failure of the police to exonerate him after they became aware of facts which should have led them to conclude that he was not the “plastic bag” bank robber. This is how the chief justice dealt with Hill’s claim:

It remains to consider Mr. Hill’s complaint that the police negligently failed to reinvestigate when new information suggesting he was not the robber came to light after his arrest and incarceration.

This complaint must be considered in the context of the investigation as a whole. The police took the view from the beginning that the ten robberies were the work of a single person, branded the plastic bag robber. They maintained this view and arrested Hill despite a series of tips implicating two men, “Pedro” and “Frank.” Other weaknesses in the pre-charge case against Hill were the failure of a search of Hill’s home to turn up evidence, and the fact that at the time of his arrest Hill had a long goatee of several weeks’ growth, while the eyewitnesses to the crime described the robber as a clean-shaven man. While the police may have had reasonable and probable grounds for charging Hill, there were problems with their case.

After Hill was charged and taken into custody, the robberies continued. Another officer, Detective Millin, was put in charge of the investigation of these charges. Sotomayer emerged as a suspect. Millin went into Hill’s file and became concerned that Sotomayer, not Hill, may have committed at least some of the earlier robberies.

He met with Detective Loft and discussed with him the fact that in the photographic record, the perpetrator of the December 16 robberies resembled Sotomayer more than Hill. As a result, on March 7 the charges against Hill relating to that robbery were withdrawn and Sotomayer was charged instead. Detective Millin met with Detective Loft again on April 4 and 6 to express concerns that Sotomayer and not Hill was the plastic bag bandit on the other charges. Detective Loft told Detective Millin that he would attempt to have the trial of the charges against Hill put over to permit further investigation. He never did so.

The matter remained in the hands of the Crown prosecutors and no further investigation was done. Eventually, the Crown withdrew all the charges, except one, on which Hill was convicted. Detective Loft did not intervene to prevent that charge going forward. Nor did he check the alibi that Hill supplied. Had Detective Loft conducted further investigation, it is likely the case against Hill would have collapsed. Had he re-interviewed the eyewitnesses, for example, and shown them Sotomayer’s photo, it is probable that matters would have turned out otherwise; when the witnesses were eventually shown the photo of Sotomayer, they recanted their identification of Hill as the robber.

When new information emerges that could be relevant to the suspect’s innocence, reasonable police conduct may require the file to be reopened and the matter reinvestigated. Depending on the nature of the evidence which later emerges, the requirements imposed by the duty to reinvestigate on the police may vary. In some cases, merely examining the evidence and determining that it is not worth acting on may be enough. In others, it may be reasonable to expect the police to do more in response to newly emerging evidence.

Reasonable prudence may require them to re-examine their prior theories of the case, to test the credibility of new evidence and to engage in further investigation provoked by the new evidence. At the same time, police investigations are not never-ending processes extending indefinitely past the point of arrest. Police officers acting reasonably may at some point close their case against a suspect and move on to other matters. The question is always what the reasonable officer in like circumstances would have done to fulfill the duty to reinvestigate and to respond to the new evidence that emerged [emphasis added].

The Role of the Crown Prosecutor

The chief justice continued:

It is argued that by failing to raise the matter with the Crown and ask that they halt the case for purposes of reinvestigation, and instead allowing it to proceed to trial, Detective Loft failed to act as a reasonable officer similarly situated. It is also argued that the other defendant officers also acted unreasonably in not intervening before the case came to trial.

The liability of the officers who assisted in the investigation is readily disposed of. It has not been established that a reasonable police officer in the position of McLaughlin, Stewart, Matthews and Hill would have intervened to halt the case. They were not in charge of the case and had only partial responsibility.

The case of Detective Loft presents more difficulty. He was in charge of the case and could have asked the Crown to postpone the case to permit reinvestigation, as favoured by Detective Millin. He considered doing so, but in the end did not intervene, with the result that the matter went to trial. Explaining his decision, he referred to the evidence of two eyewitnesses identifying Hill as the robber on the final charge.

This was not a case of tunnel-vision or blinding oneself to the facts. It falls rather in the difficult area of the exercise of discretion. Deciding whether to ask for a trial to be postponed to permit further investigation when the case is in the hands of Crown prosecutors and there appears to be credible evidence supporting the charge is not an easy matter. In hindsight, it turned out that Detective Loft made the wrong decision [emphasis added].

But his conduct must be considered in the circumstances prevailing and with the information available at the time the decision was made. At that time, awareness of the danger of wrongful convictions was less acute than it is today. There was credible evidence supporting the charge. The matter was in the hands of the Crown prosecutors, who had assumed responsibility for the file. Notwithstanding that Detective Millin favoured asking the prosecutors to delay the trial, I cannot conclude that Detective Loft’s exercise of discretion in deciding not to intervene at this late stage breached the standard of a reasonable police officer similarly situated.

I therefore conclude that although Detective Loft’s decision not to reinvestigate can be faulted, judged in hindsight and through the lens of today’s awareness of the danger of wrongful convictions, it has not been established that Detective Loft breached the standard of a reasonable police officer similarly placed.

The Future?

Mr. Hill’s lawyers — Sean Dewart and Louis Sokolov — predicted that municipalities and their insurers will begin to insist on better police training in order to head off future lawsuits. It is a frequent practice for municipalities to buy insurance against the negligence of their employees.

“This is a very good day for police accountability in Canada,” Mr. Sokolov said. “The Supreme Court stated in resounding language that police are no different from the rest of us, and can be sued if they do their jobs negligently” (Globe and Mail, October 5, 2007).”

Police Use of Body-Worn Video Cameras

In 2014, Toronto police announced a pilot program to provide body-worn video cameras for officers to record and improve their interactions with the public. Yet, even a body-worn video camera may need some control. For example, should an officer be able, at will, to turn the camera on or off? When should a camera be turned on? Should a court rule that the only video admissible in evidence be one where the Crown can demonstrate that it is the full video? And, finally, to what extent should police be required to demonstrate that a video was taken in the course of their duty, and not under any form of constraint on the part of the individual eventually under arrest?

A Globe and Mail editorial commented on the program:

You’re more likely to behave if you know you are being watched. This week, Toronto police announced a program to test what is known as body-worn video — cameras worn on officer’s lapels, which record police interaction with the public. Similarly to the cameras mounted on dashboards of patrol cars and inside police stations, the idea is to protect police and public: the police against false accusations; the public against police abuse.

Several other Canadian cities are already well ahead in testing the technology. In Calgary, for example, a small group of officers began wearing the cameras in 2012, and the devices are now being extended to the rest of the force. Other cities, such as Montreal, are looking into starting their own pilot programs.

Toronto’s decision comes after two reports suggested that the cameras could help improve transparency and accountability. If a police officer assaults a member of the public, for example, and there are no witnesses present, the wrong-doing may never come to light, or the allegation may not be believed. Absent video, the only evidence will be the testimony of the accuser and the accused, and the latter is a police officer.

What little evidence we have of the impact of police body-worn video suggests that its presence can moderate everyone’s behaviour — both police and the citizens they interact with. But its main purpose is to help the public better oversee the police, not the reverse. It must be used in a way that guarantees rights and respects privacy.

People being filmed should immediately be informed, similarly to how someone placed under arrest is read their rights. People should also be able to ask that cameras be turned off in certain situations: If you invite police into your home to report burglary, they don’t have to videotape their walk into your living room. At the same time, there must also be rules in place so that police do not selectively turn the video cameras on and off at opportune moments. For example, the cameras in Toronto police cars go on automatically whenever the emergency lights and siren are activated.

Video should also not be released except in the most limited circumstances — if it’s material to a court case or a complaint against police. All other video, most of which will involve innocent interactions with members of the public, should remain private, and be destroyed in a timely manner. Body-worn cameras should be a tool to uphold the law, not to infringe on privacy (Globe and Mail, February 19, 2014).

Past, Present, Future?

Police are peace officers. They have the power to detain and arrest, and to carry and use firearms. But, in a broad sense, what are the duties of police officers? In part, the answer came almost two centuries ago in the Nine Principles of Policing developed by British Home Secretary Sir Robert Peel. A Globe and Mail editorial outlined Peel’s principles:

What are the police for? In 1829, the first modern police force was created in London by home secretary Sir Robert Peel. It is the precursor to and model for all police forces in Canada and the United States. London’s Metropolitan Police Force was founded on a philosophy that came to be known as Robert Peel’s Nine Principles of Policing. Nearly 200 years on, there is no clearer statement of what policing in a democratic society is supposed to be about.

To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.

To recognize always that the power of the police to fulfill their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.

To recognize always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.

To recognize always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.

To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.

To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.

To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

To recognize always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the state, and of authoritatively judging guilt and punishing the guilty.

To recognize always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them (Globe and Mail, August 15, 2014).

References and Further Reading

* Cited by the Supreme Court of Canada.

Alphonso, Caroline. “Top Court Upholds Compensation for Charter Breaches.” Globe and Mail, July 24, 2010.

Canada, Department of Justice. Guidelines: Compensation for Wrongfully Convicted and Imprisoned Persons. Ottawa: Department of Justice, 1988.*

Canada, Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Ottawa: Royal Commission on Aboriginal Peoples, 1996.*

Cory, Peter. The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation. Winnipeg: Manitoba Justice, 2001.*

Davis, K.C. Administrative Law Treatise, vol. 3. (1958).*

Dussault, R., and L. Borgeat. Administrative Law: A Treatise, 2nd ed., vol. 5 (1990).*

Federal/Provincial/Territorial Heads of Prosecutions Committee Working Group. Report on the Prevention of Miscarriages of Justice. Ottawa: Department of Justice, 2004.*

Garrison, Arthur. “Law Enforcement Civil Liability under Federal Law and Attitudes on Civil Liability: A Survey of University, Municipal and State Police Officers.” Police Studies 18 (1995):19.*

Hall, Daniel, and others. 2003. “Suing cops and corrections officers: Officer attitudes and experiences about civil liability.” Policing: An International Journal of Police Strategies & Management 26 (2003): 529.*

Hughes, Tom. “Police officers and civil liability: ‘the ties that bind’?” Policing: An International Journal of Police Strategies & Management 24 (2001): 240.*

Kaufman, Fred. The Commission on Proceedings Involving Guy Paul

Lamer, Antonio. The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes. St. John’s: Government of Newfoundland and Labrador, 2006.*

MacCharles, Tonda. “6–3 Decision Called ‘Groundbreaking’ but Some Fear it Could Have ‘Chilling Effect’ on Law Enforcement.” Toronto Star, October 5, 2007.

MacKinnon, Peter. “Costs and Compensation for the Innocent Accused.” Canadian Bar Review 67 (1998): 489.*

Morin: Report. Toronto: Ontario Ministry of the Attorney General, 1998.*

“Officer, You’re on Candid Camera.” Globe and Mail, February 18, 2014.

“Police Can Be Sued for Sloppy Investigations, Supreme Court Rules.” Globe and Mail, October 5, 2007.

Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell. Winnipeg: Manitoba Department of Justice, 2007.*

Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations. Halifax, 1989.*

The Commission on Proceedings Involving Guy Paul Morin. Toronto: Ontario Ministry of the Attorney General, 1998.*

“The Nine Commandments of Policing.” Globe and Mail, August 15, 2014.

“Thou Shalt Not Degrade.” Globe and Mail, July 27, 2010.

Life or Death

Dedication

For Arthur

Acknowledgements

First, I would like to acknowledge the Supreme Court of Canada. Over the decades, the membership of this nine-person Court has altered through retirement (mandatory at age seventy-five) or death. Increasingly, the Court has tried to hand down judgments that come ever closer to being decisions that can be read, understood, and discussed by those who want to be informed about the structure of our law, of our government, and more importantly, of our society’s values. So, I thank — most profusely — the Supreme Court of Canada.

A second link in the chain between the law and the people is the media. It is possible, of course, in our highly computerized society to read the decisions of the Supreme Court of Canada online, but that can be an arduous process. On occasion, magazines such as Maclean’s feature a particular subject for investigative reporting, in which the Supreme Court of Canada’s judgments (such as those relating to tobacco) may form a part. Newspapers such as the Toronto Star may select a story reflecting a matter of social concern, such as bullying. And, on a daily basis, radio or television may report on such stories.

The net effect of media reporting, at best, ranges from episodic to minimal. Perhaps the one constant to which I frequently refer in this series is the informed editorials in Canada’s national newspaper, the Globe and Mail. Without hesitating, the Globe and Mail granted the right to reprint editorials (and there were many) on Supreme Court of Canada decisions. The approach of the Globe and Mail seems to be: Let the public be made aware. I thank them for their generosity and for maintaining consistently high standards.

I would also like to thank Penny Mallette and Michael Melgaard for their patience, thoughtfullness, and insight in bringing this series to fruition.

Ordinarily, I would say that I take full responsibility for the contents of this book. Hopefully, however, the contents do not reflect my judgments but those of the Supreme Court of Canada and, to a lesser extent, the lower courts. My task, as I saw it, was to discuss those judgments in a nonjudgmental and accessible way.

Introduction

Our bodies are ours to control, free from state interference. This principle seems enshrined in our Constitution through the Charter of Rights and Freedoms, and in the common law through which many of the Charter principles were nurtured. Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

But, how absolute is this belief? Consider these questions:

Do parents have the final decision in determining the medical care of their children — even if that choice may mean death?

May children override the choices of their parents as to medical care? For example, if a teenager is pregnant and wants an abortion, may her choice override that of her parents?

What role, if any, does the state (or the courts) have in reviewing individual medical choices?

Are there laws against suicide or assisted suicide?

The questions address beliefs that can be deeply personal. A teenager has the strong religious belief that it is offensive to her god to receive blood transfusions no matter how sick she may be. Suppose she clings to that belief, which she shares with her parents. She suffers a disease that results in severe internal bleeding. If the teenager went to a hospital that operates under government rules, there is no doubt that the physicians would urge a blood transfusion — even against her wishes. If she stayed home, prayed, and hoped for a cure, she likely would die. If the police or child welfare agencies were not made aware of her situation, she would die. For government to act, it must first be made aware. (This, of course, does not preclude possible action after the event — for example, possible criminal action against the teenager’s parents for failure to exercise parental duties in the proper care of their child.)

In the cases that will be discussed in the following chapters, bear in mind that the state, and eventually the courts, became involved in the “problem” only after it had been disclosed to them.

Who Are the Judges?

A few words must be said about the judges (or justices, as Supreme Court of Canada judges are called). Who are they? How are they chosen? How do they go about coming to decisions? The answer to these questions may help us better understand the decisions that we will be examining.

In 1989 Beverley McLachlin, then chief justice of British Columbia, received a telephone call from the prime minister of Canada. He asked if she would consider a new position: that of a justice of the Supreme Court of Canada.

It was within the power of the prime minister, accepted by his Cabinet, to offer the position. The appointment of a justice of the Supreme Court of Canada did not have to go through parliamentary committee or parliamentary consent, as such — a process enormously different from that of the United States, where the president nominates and the Senate, following hearing, either gives the nomination a stamp of approval or rejection. (If the Senate rejects, then the candidacy of that person comes to an end.)

Justice McLachlin thanked the prime minister, accepted his offer, and became a justice of the Supreme Court of Canada. On January 7, 2000, the prime minister offered Justice McLachlin the position of chief justice of the Supreme Court, and she accepted.

There are nine justices who make up the Supreme Court of Canada. The conditions for their appointment are few, but they are important. They are appointed through the prime minister and the Governor in Council. In this regard, the “pool” for appointment by law is comprised of superior court judges or barristers with at least ten years in practice in a province or territory.

Once named to the Supreme Court, a justice cannot be removed from office so long as the justice carries out her/his duties in accordance with the law. But, at the age of seventy-five, there is forced retirement. (However, many retired justices are called back to serve in appointments such as chairing special commissions.) A serving justice can only be removed from office for bad conduct or incapacity (such as illness).

By law, the prime minister is required to appoint three justices from Quebec. By tradition, the prime minister also appoints three justices from Ontario, two from the West, and one from Atlantic Canada.

How the prime minister goes about selecting a justice for the Supreme Court, given the broad limits described, is for the prime minister to determine. In 2012 Prime Minister Stephen Harper set new guidelines. He named a panel of five members of the House of Commons: three Conservatives (the prime minister’s governing party), one New Democrat, and one Liberal. Their task was to review a list of qualified candidates put forward by the federal justice minister in consultation with the prime minister, the chief justice of the Supreme Court of Canada, the chief justice of Quebec (where the next justice was to be selected), the Attorney General of Quebec, and provincial and territorial bar associations (as well as public suggestions).

The panel was instructed to submit a list of three recommended candidates — unranked — to the prime minister and he would select one from that list. A public hearing before a special parliamentary committee would be held before the prime minister finalized the appointment.

The first justice selected through the process described above was Richard Wagner, who was a long-time trial lawyer before becoming a justice of the Quebec Court of Appeal. In an interview with the Globe and Mail, Justice Wagner said: “I might surprise you, but I liked the [hearing] process. There is nothing to hide. I think a judge should follow the directions of society, and that means to explain to citizens what we do, how we do it and why we do it. I think it’s fair and it’s reasonable.”

A central concern, said Justice Wagner, is ensuring access to the justice system for all Canadians.

Some Facts

On the whole, it can be said that justices of the Supreme Court of Canada historically do not like to talk about themselves. But, there are some facts that may give rise to questions going to the makeup of the Court:

There have been no persons “of colour” appointed to the Supreme Court of Canada.

There have been no persons from among the “first peoples” (First Nations, Métis, and Inuit) appointed to the Supreme Court of Canada.

The fact is that white men, drawn from an elite part of the legal profession, constituted the “pool” from which justices of the Supreme Court of Canada were drawn — at least until 1982. In that year — at the time the Charter of Rights and Freedoms, an important part of the Constitution of Canada, came into effect — the prime minister named the first woman to the Supreme Court: Bertha Wilson. She had immigrated to Canada with her husband John, a Presbyterian minister in Scotland, in 1949.

Justice Wilson had received an M.A. in philosophy at the University of Aberdeen. Once in Canada, she applied for admission to the law program at Dalhousie University in Halifax. She recalled an interview with the dean of the law school, and chuckled about it later. The dean advised her to “go home and take up crocheting.” She didn’t. She entered the Dalhousie law program in 1955 and was called to the Nova Scotia Bar after graduation.

In 1959 Justice Wilson moved to Toronto where she found employment with a leading law firm and later became head of research for that firm. Her job consisted in no small measure in writing opinions for members of the firm — a task that went a long way toward preparing her for work as a judge.

Justice Wilson received an invitation in 1979 to sit as a judge on the Ontario Court of Appeal. Her immediate response was surprise — and then laughter when, as a judge whose opinions reflected women’s rights, she said: “I’ll have to talk it over with my husband.” She accepted the position on the Court of Appeal and served there until her appointment to the Supreme Court of Canada.

Justice Wilson was a Supreme Court justice from 1982 to 1991, retiring at the age of sixty-eight. There, she had an important role in interpreting the then newly established Charter of Rights and Freedoms, including decisions relating to a woman’s right to abortion (R. v. Morgentaler [1988] 1 Supreme Court of Canada Reports 30) and a spouse’s right to claim self-defence to murder based on physical abuse by her/his spouse (called in law the battered wife syndrome) (R. v. Lavallée [1990] 1 Supreme Court of Canada Reports 852).

Since the appointment of Justice Wilson, a number of women have served as justices of the Supreme Court of Canada. In 2012, after serving as a justice for what she called ten “intense” years, Justice Marie Deschamps of Quebec resigned at the age of fifty-nine. (At that time, there were four women sitting as justices.) In an interview with CBC News a week after her resignation, Justice Deschamps was asked about “gender balance” on the Court. She answered, “I think every court should aim for half and half.... It’s important that [the Court] is balanced.... I hope that the government will maintain at least four women on the Court. Whether the next candidate is a woman or it’s the one that follows it will be for the government to decide.”

In fact, the prime minister named Justice Richard Wagner of Quebec to the Court, thus lowering the number of women justices (at least for the time) to three.

It should be noted that the chief justice at the time of Justice Deschamps’s resignation was Beverley McLachlin (CBC.ca, August 15, 2012).

How Are Judges to Decide?

May emotion play a role in decision-making? For us, in reviewing decisions of the Supreme Court of Canada (or the decisions of any court, for that matter), an important question is whether justices can decide a case largely on the facts and the law as given. Can they remove (or largely isolate) any individual bias?

There are two parts to the answer — at least as applied to the Supreme Court of Canada:

No single justice decides a case. If the Court sits as a panel, there usually are seven justices who meet, discuss, and work toward an opinion which the chief justice usually assigns to a specific justice. If there is disagreement that cannot be otherwise resolved, then the way is open to a written dissent or a concurring opinion. (Often the justices are able to work out their disagreement to form a majority or a unanimous opinion.)

A case may be one that summons enormous emotion. Such was the case of Robert Latimer, a Saskatchewan farmer charged and convicted in the “mercy” killing of his disabled daughter. Twice the case went on appeal to the Supreme Court of Canada. The second time, the appeal was from a judgment of the Saskatchewan Court of Appeal that had increased a sentence of one year to ten years.

In a decision by the Court as a whole in the Latimer case — not one attributed to any particular justice — the Supreme Court of Canada affirmed the judgment. The role of emotion in coming to decision was lessened.

Justice Ian Binnie, on his retirement after serving fourteen years on the Court, commented on the Latimer case in an extensive interview with Kirk Makin of the Globe and Mail:

The Robert Latimer case was a hugely controversial case, but to me, the legal outcome was straightforward. You can’t have people making their own judgments as to whether their child should live or die.

In saying that, I make no moral judgment about what Latimer did. I accept his word that he did it because he thought it was best for his daughter.

But the legal decision wasn’t his to make. But the law is clear. When you talk about judges applying the law and not making it up, if the Criminal Code is clear about the penalty that follows from the crime of homicide, then that is the penalty that follows. You can’t apply the law differently from case to case depending on a judge’s personal view of whether a constitutional exemption is warranted.

So, there is no necessary [relation] between how much you agonize over a decision and what the moral implications or the controversy is outside the courtroom. My only function in that case is the right legal result. In that case the legal result was clear. My personal views of whether it was a good outcome or a bad outcome were irrelevant (Globe and Mail, September 23, 2011).

References and Further Reading

Fitzpatrick, Meagan. “Supreme Court Should Have Four Women Says Retiring Justice.” CBC.ca, August 15, 2012.

Makin, Kirk. “Justice Ian Binnie’s Exit Interview.” Globe and Mail, September 23, 2011.

_____. “Supreme Court Judge Warns of ‘Dangerous’ Flaws in the System.” Globe and Mail, December 12, 2012.

Chapter 1

Let The Medicine Go Down — Regardless?

What is a court’s role in reviewing life-or-death medical decisions that affect the young? We are not speaking of decisions made by the parents of a young person. Rather, we are speaking of the decision by the young person, herself.

Of course, that decision can only be reviewed if authorities — often a hospital, or a doctor — become aware of it. It is possible for the young person to do nothing and to keep the illness to herself until it is too late for medical intervention.

The principal case discussed in this chapter is A.C. v. Manitoba (Director of Child and Family Services), 2009, Supreme Court of Canada Reports 30, decided on June 26, 2009. A seven-member panel of Supreme Court of Canada justices set out three opinions that, in the result, allowed a hospital to administer blood to a critically ill fourteen-year-old (called A.C.) against her will. Without the blood transfusions, there was a real risk, based on medical evidence, that she might have died.

Justice Rosalie Abella spoke for the four-member majority, consisting of herself and Justices Louis LeBel, Marie Deschamps, and Louise Charron. Chief Justice Beverley McLachlin issued an opinion that concurred with the result reached by the majority. However, she would have reached that result primarily through an interpretation of the statute in question. She was joined by Justice Marshall Rothstein. Justice Ian Binnie was the sole dissenting judge. He would have allowed A.C. the right to refuse blood transfusions.

While the facts will be more fully set out, it is enough to say here that A.C.’s decision, in the view of the hospital’s examining psychiatrists, was not made under duress or pressure of any kind, but that it reflected her sincerely held religious beliefs. And, in this regard, A.C. was fully aware of the possible outcome — namely, the possibility of death — if the hospital adhered to her wishes. After the transfusions, A.C. lived. The case was brought to the Supreme Court because A.C. argued that her personal rights had been violated.

Let us begin our overview of the case with principles in law. Medical procedures such as blood transfusions are, by their very nature, an assault on the recipient. A procedure may be designed for that person’s well-being, but the underlying reality is beyond dispute: The doctor, the hospital, and those administering the procedure, are literally invading the body of the patient.

The common law — that is, the law developed by the courts over centuries — has within it certain values that are used to interpret statutes and, in that regard, individual rights and responsibilities. For example, there is the law of negligence, which, among other things, says that one cannot injure another without lawful right. And, if such a wrong occurs, then there may be a case for damages to the person wronged.

Many of the values of the common law have been taken, amplified, and written into statutes that control how government or its agencies may act on individuals. The most important of these basic laws is the Constitution, or, for our purposes here, the Charter of Rights and Freedoms. It is the highest law of the nation. However, it may appear that basic freedoms under the Charter may sometimes conflict with one another — even in matters involving life and death.

We will discuss these questions:

Equality under the law is a fundamental freedom under the Charter. Yet, is it possible for there to be age discrimination in medical care? Can those under sixteen be denied the right to refuse medical care?

To what extent may a court impose a maturity test in determining whether a young person may opt out of medical treatment?

Freedom of religion is also a fundamental right protected by the Charter. Yet, may a court substitute the test of the “best interests” of the child to trump that person’s firmly held religious convictions that compel her to refuse medical treatment?

First we will deal with the facts in A.C. v. Manitoba (Director of Child and Family Services). Then, we will set out the opinions of the justices.

THE FACTS OF A.C. v. MANITOBA (DIRECTOR OF CHILD AND FAMILY SERVICES)

Two months before she entered the hospital, A.C. completed a written document called an “advance medical directive.” It stated that she was to have no blood transfusions “under any circumstances,” even if such transfusions meant saving her life. A.C. based this decision on her firmly held beliefs as a devout Jehovah’s Witness. The Bible, she believed, imposed a mandate: No one was to take the blood of another. She had to follow that mandate, she said, if she were to stand “clean” with God. A.C. wrote: “I am one of Jehovah’s Witnesses, and I make this directive out of obedience to commands in the Bible, such as: ‘Keep abstaining ... from blood’ (Acts 15:28, 29).”

But, saving her life was precisely what her doctor and the hospital medical team believed was the issue. They concluded that A.C. needed blood transfusions. She was experiencing bleeding from the bowel as a result of Crohn’s disease, a chronic inflammation of the gastrointestinal tract.

According to A.C., her best interests were to be determined according to her religious convictions. However, the determination of the hospital — and, in the final analysis, the court — was that her best interests were to be measured by a standard based on what would likely protect her life.

We said this at the start of this chapter. Here, however, we go into more detail to better understand the issues and the Court’s judgment.

The beginning point is to recognize A.C.’s age: She was fourteen years and ten months old. If she had been sixteen years old, under the Manitoba statute that controlled matters of medical consent, her wishes would have been determinative so long as she was rational and aware of the implications of that decision.

We will discuss the standard applied by the Supreme Court of Canada in passing on the extent to which A.C.’s wishes were to influence or control her medical treatment — even in the face of death. Now, however, our focus is how, in fact, the decision was made as to forced medication or, more particularly, blood transfusions.

Along with the decision of Justice Abella, who spoke for the Court majority, we draw on the description given by Justice Binnie, who was the lone dissenter in the seven-member panel of the Supreme Court of Canada that decided the case involving A.C. We do this not because there were variances on the facts between the justices whose views formed the majority opinion. Rather, it is simply because Justice Binnie had some additional details in his statement to which the other justices did not object. (Note: As a matter of practice, the justices generally exchange their opinions for comment or revision among their colleagues.)

A.C. ENTERS THE HOSPITAL

A.C. entered the hospital on April 12, 2006. The following day, her attending physician, Dr. Stanley Lipnowski, requested a psychiatric assessment of A.C. from the hospital’s consulting psychiatrists. He wrote: “Please see 14 [year old female] admitted as [C]rohn’s disease [with] lower GI bleeding. [Patient] is Jehovah’s Witness refusing all blood product transfusions. Please do assess the patient to determine capability to understanding death. Thank you.”

The assessment and report were completed that night between 10:00 p.m. and 11:45 p.m., during which time A.C.’s parents also were interviewed by the psychiatrists.

The potential of death was central to the inquiry. Three hospital psychiatrists — Dr. Kuzenko, Dr. Bristow, and Dr. Altman — examined A.C. and reported as follows:

[Patient] is aware of medical concern for blood loss, [decreased hemoglobin] and that if blood loss is severe, a transfusion is the recommended [treatment]. She is aware of alternatives to transfusion – [erythropoietin] and iron. States that even if she will die, she will refuse blood based on scripture “to maintain a clean standing with God.” She was voluntarily baptized two years ago and believes that “this is the absolute truth.”

Sleep is “pretty good.” Concentration “good.” Energy “really good.” Eating well (apart from this past week).

The psychiatrists made inquiries to determine the extent of parental influence and reported:

[A.C.] denies feeling pressured by parents and has a good relationship with them. Has good support system.

[The parents] believe she treasures her relationship with God and does not want to jeopardize it, that she understands her disease and what is happening.

The psychiatric assessment report concluded:

The patient appears to understand the nature of her Crohn’s illness (and GI bleeding) and reason for admission. She also appears to understand the nature of her treatments, and that should her current medical status weaken, the treating MD’s may suggest a blood transfusion. The patient understands the reason why a transfusion may be recommended, and the consequences of refusing to have a transfusion. At the time of our assessment, patient demonstrated a normal [mental status examination with] intact cognition (30/30 [Mini-Mental State Examination]).

At the time of her psychological assessment, A.C.’s condition was stable and continued to stabilize for a few days. She was being treated (with her consent) with non-blood products and medication to stop the internal bleeding. She had no desire to die, but she wished to live in accordance with her religious beliefs.

On the morning of April 16, she experienced more internal bleeding. Her doctors wanted to give her a blood transfusion, but she refused. Faced with that refusal, the hospital sought the intervention of Manitoba Child and Family Services. As a result, the director of Child and Family Services apprehended A.C. as a child in need of protection under the Manitoba Child and Family Services Act (CFSA).

“Apprehended” is a legal term used to describe taking control of A.C. and having the power to act in her “best interests” — a matter that, as we shall see, was finally determined by a court and not by A.C. or her parents.

A HOSPITAL/COURT HEARING: THE ORDER

The CFSA allowed the director to go to a provincial court and seek an order for the blood transfusions. But such an order could come only after a hearing and a finding by the judge of that court that the transfusions would be in the “best interests of the child.” For this purpose, the CFSA defines a child as anyone under the age of sixteen.

If the child is sixteen or older, the court is forbidden to authorize examination or treatment without the child’s consent. (This assumes, under the statute, that the child is able to understand the proposed procedure and its impact on her. Absent such understanding, a court may act in the child’s best interests just as if the child were younger.)

The emergency CFSA application was heard by provincial Justice Morris Kaufman. Counsel for the director of Child and Family Services was in the courtroom. Others, including Dr. Lipnowski, counsel for the Winnipeg Regional Health Authority, counsel for A.C.’s parents, a social worker, and A.C.’s father, were together in a hospital boardroom and participated in the hearing by conference call. A.C. did not participate in the hearing.

Dr. Lipnowski’s evidence was that the transfusions were necessary because the risk to A.C. if she did not receive blood was “significant.” He stated: “[T]he longer she goes without [the blood transfusions], the more the risk is of her having serious oxygen deprivation to the point where [if] for argument sake she’s not getting enough oxygen to her kidneys, they will shut down and cause essential poisoning of her system. If she does not get enough oxygen to her brain she can conceivably have seizures and other manifestations of the brain that will contribute to a faster demise or death.”

Justice Kaufman allowed the blood transfusions over the child’s objections. He concluded that when a child is less than sixteen years old “there are no legislated restrictions” on the court’s ability to order medical treatment in the child’s “best interests” under the CFSA.

To repeat, Justice Kaufman believed he had the right to order that which would be in the best interests of A.C. He was satisfied, based on the testimony of Dr. Lipnowski, that A.C. was “in immediate danger as the minutes go by, if not [of] death, then certainly serious damage.”

Within hours, A.C. was given three units of blood. The treatments were successful and she recovered. On May 1, the director of Child and Family Services withdrew its application to apprehend A.C. At that point, there apparently was no medical emergency to be met.

THE LAW: APPLICATION TO APPREHEND

These are the provisions of the Manitoba Child and Family Services Act which Justice Kaufman interpreted in the case of A.C.:

§25(8). Subject to subsection (9), upon completion of a hearing, the court may authorize a medical examination or any medical or dental treatment that the court considers to be in the best interests of the child.

§25(9). The court shall not make an order under subsection (8) with respect to a child who is 16 years of age or older without the child’s consent unless the court is satisfied that the child is unable:

(a) to understand the information that is relevant to making a decision to consent or not consent to the medical examination or the medical or dental treatment; or

(b) to appreciate the reasonably foreseeable consequences of making a decision to consent or not consent to the medical examination or the medical or dental treatment.

PROCEEDING BEFORE JUSTICE KAUFMAN

The following is a summary of the proceedings before Justice Kaufman as set out by Justice Binnie in his dissent in A.C. v. Manitoba (Director of Child and Family Services). Note the additional detail.

At the §25 (CFSA) hearing, which proceeded in the absence of A.C., her attending physician, Dr. Lipnowksi, testified that because of reduced haemoglobin levels, A.C.’s vital organs were not receiving sufficient oxygen. Until her low haemoglobin level improved, the medical staff could not investigate by colonoscopy or [undertake any] other procedure [to determine] whether A.C.’s intestinal bleeding was continuing. While the non-blood medication presently being administered might assist in stopping further bleeding, it would not remedy the low haemoglobin count.

The risk to A.C. was significant even if the internal bleeding had stopped, because if the doctors waited for A.C.’s haemoglobin to rebuild naturally (i.e. without a blood transfusion), there could be permanent and serious damage to A.C.’s bone marrow and kidneys.

The CFSA hearing proceeded expeditiously. Counsel representing A.C.’s family, Mr. Allan Ludkiewicz, heard the evidence on behalf of the Director and Dr. Lipnowski over a cell phone on his way to the hospital. He urged the applications judge to come to the hospital as well to review the hospital’s recently completed psychiatric assessment report, but the applications judge viewed such evidence as irrelevant in light of the language of §25 of the CFSA:

MR. LUDKIEWICZ [by telephone]: Yeah. I was going to request of the court that the, that the hearing be held at the hospital with — if, if My Lord would, would come down. I, I believe that the —

THE COURT [by telephone]: What’s the, what’s the purpose of that?

MR. LUDKIEWICZ: It’s — what I understand is that this patient has been assessed as being capable of making her own decisions.

THE COURT: She’s under 16.

MR. LUDKIEWICZ: She, she’s been assessed by the doctors. There, there is an assessment report which I would want to put into evidence first and the assessment report indicates that [A.C.] understands the nature of her illness and the possible consequences.

THE COURT: Counsel, I — where — just help me out here. She’s under 16. Is her consent required?

MR. LUDKIEWICZ: Her — if, if she’s capable, My Lord.

THE COURT: Where does it say —

MR. LUDKIEWICZ: She’s, she’s in the same position as, as an adult. She makes her own medical decisions.

MR. THOMSON [Counsel for the Director]: Your Lordship, what the agency is relying on are the provisions of Section 25 of the Child and Family Services Act which clearly contemplate that that type of investigation doesn’t occur under the legislation for a child who is less than 16 years of age and the provision that I would rely on in particular is subsection 9 of Section 25 of the Act [emphasis added].

MR. LUDKIEWICZ: Well, My Lord, first of all, the — this is a Charter matter, to begin with. I’d like to put that on the record. It involves Section 2(a) freedom of religion. It involves Section 7, liberty and security of the person. A capable person of any age makes their own decisions when it comes to, to health care. They have ... freedom of choice. So I believe that the first thing that My Lord should have before you is the assessment report.

The §25 hearing proceeded as soon as counsel representing A.C.’s family arrived at the hospital. The applications judge was conferenced in by telephone. Counsel again sought to introduce evidence as to A.C.’s capacity through the psychiatric report and through A.C.’s father, but was stopped by the applications judge:

MR. LUDKIEWICZ: In my examination of the father. When … I was coming to this hearing, when I was driving it was indicated that we’re assuming that [A.C.] has capacity; is that correct —

THE COURT: I’m proceeding on the assumption that she has capacity and doesn’t want this done. I’m taking that as a given [emphasis added].

When counsel for the Director sought to ask A.C.’s doctor about A.C.’s capacity, the applications judge, consistently with his earlier ruling, did not allow it:

THE COURT: I think that if [A.C.’s capacity] becomes a live issue then I would want to attend and speak to the child myself and see the assessment report. But I am going to proceed, as I say. If we’re going to proceed in this format then it seems to me only fair to proceed on the assumption that the child has capacity and that the child objects.

If I thought that, that [A.C.’s capacity] was going to be an issue, then I would deal with it by way of attending and speaking to the child and reading the assessment report rather than hearing Dr. Lipnowski’s summary or opinion based on that, counsel. So I’m going to proceed without that [emphasis added].

Based on the attending doctor’s evidence, the applications judge was satisfied that there was “immediate danger as the minutes go by, if not death, then certainly serious damage.” He granted the treatment order because, in his opinion, §25(8) of the CFSA requires the court to act in what the court regards as the ”best interests of the child” even for minors with capacity if they are under 16 years of age. In his view, the blood transfusion would be in A.C.’s best interests. He did not address the Charter issues. He issued an order:

“That qualified medical personnel are hereby authorized to administer blood transfusions and/or blood products to the Respondent [A.C.] as they deem medically necessary without the consent of Respondent [A.C.] or her parents.”

A.C.’S APPEAL — THE FIRST STEP: MANITOBA COURT OF APPEAL

A.C. and her parents appealed Justice Kaufman’s order:

They argued that section 25(8) of the CFSA, and the “best interests” test contained in it, applies only to minors under sixteen without capacity to make a mature medical decision. But, A.C. was determined to have had such capacity. Recall, this was assumed by Justice Kaufman and, on appeal to the Alberta Court of Appeal, that assumption was carried forward.

In any event, A.C. and her parents argued that sections 25(8) and 25(9) of the CFSA were unconstitutional because they violated the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the highest law of the nation. The Charter overrules any conflicting statute. And, in this regard, they said that the questioned provisions of the CFSA unjustifiably infringed A.C.’s rights under sections 2(a), 7, and 15 of the Charter. Those sections provide:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

...

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

...

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Manitoba Court of Appeal rejected A.C.’s argument that section 25(8) of the CFSA applies only to children under sixteen without capacity. To have accepted that argument would have required the appellate court to read into the statute elements of the common law, that is, judge-made law, developed over the centuries. One such element is the rule relating to the mature minor. Aspects of this rule allow minors the right to make certain decisions — if they have demonstrated the maturity to be able to do so.

Rather, what the Manitoba Court of Appeal did was to look to CFSA itself. According to legal principles, courts are to interpret the law as written by the legislature, not the common law. The meaning of the law is to be found in the plain words of the law itself.

The court concluded that the legislation ousts the common law principles relating to mature minors and instead empowers the court to make treatment decisions for those under sixteen, with or without capacity, based on a “best interests” test. A child’s wishes and capacity may be relevant to the analysis, but not determinative. The court stated that the Child and Family Services Act formed “a complete and exclusive code for dealing with refusal of medical treatment in circumstances where an application is made under §25 of the CFSA.”

But what about the Charter? Were AC.’s rights under section 7 of the Charter violated as to life, liberty, and security of the person? Why should persons under sixteen be treated differently than those sixteen and older?

The Manitoba Court of Appeal identified the competing interests at stake as being the interest an adolescent has in his or her personal autonomy and, on the other hand, the state’s interest in the protection of children and the sanctity of life. In the appellate court’s view, section 25 of the CFSA successfully balanced these interests. It was not “arbitrary” to adopt the age of sixteen as the “presumptive line” because it cannot be said that the law “bears no relation to, or is inconsistent with, the objective that lies behind [it].”

CHALLENGE QUESTION

A REVIEW OF A.C.’S CAPACITY TO DECIDE

To what extent did the lower courts — that is, Justice Kaufman and the Manitoba Court of Appeal — actually make findings as to A.C.’s capacity to decide as to the questioned blood transfusions? By “capacity” we mean maturity of judgment.

For purposes of decision, as noted, both Justice Kaufman and the Manitoba Court of Appeal assumed that A.C. had the maturity to decide as she did. Justice Abella, speaking for the majority of the Supreme Court of Canada in the A.C. case, stated:

No one in any of the proceedings determined whether A.C. was in fact able to make a mature, independent judgment about her medical treatment, and the psychiatric report was never subjected to a review of any kind, let alone a searching one.

Kaufman J. proceeded based on his view that the question of A.C.’s capacity was ultimately irrelevant under the Act, concluding that when a child is under 16, there are no restrictions on the court’s ability to authorize medical treatment on his or her behalf. At the Court of Appeal, the question of A.C.’s capacity was not even considered by the court. In response to the Attorney General of Manitoba’s argument that the appeal should not be heard because there was no proper evidentiary record of capacity, Steel J.A. [of the Manitoba Court of Appeal] stated:

“I agree that the determination of capacity is a delicate issue heavily dependent on the facts. However, it is not necessary to decide the issue of capacity in order to address the legal issue raised in this appeal. The issue is strictly one of statutory interpretation and, depending on the meaning given to the legislation, whether the legislation conforms with the requirements of the Charter” [emphasis added].

Since neither court in the prior proceedings assessed A.C.’s “best interests” in light of her maturity, there is no reviewable judicial determination before us as to A.C.’s ability to make an independent, mature decision to refuse the blood transfusions, in accordance with the intense scrutiny contemplated in these reasons for such circumstances. Moreover, the issue of the validity of Kaufman J.’s treatment order is clearly moot [no longer an issue that needs to be decided by a court]. The medical emergency that gave rise to this litigation is long since over and A.C. is no longer under the age of 16.

WHY APPEAL?

Why would A.C. want to appeal the decision of the hospital and Justice Kaufman after the blood transfusions had taken place? It was matter of principle. A.C. and her parents believed that her constitutional rights had been violated in an important way: She was a minor, but she had rights under the Charter to have her views factored into the final medical decision.

Though it wasn’t discussed either by the Supreme Court of Canada or the lower courts, the reality of the disease that brought A.C. to the hospital was that the same symptoms might recur. A.C. had Crohn’s disease (regional ileitis). The disease can cause long-term inflammation of part of the digestive tract (often the small intestine). Its cause is unknown, but it is not believed to be hereditary or infectious. The symptoms can include cramps and abdominal pain. Severe bleeding that can cause iron-deficiency anemia may occur. It is a disorder more common to the Western world, tending to strike those in their twenties. In about a quarter of the cases, the symptoms appear only a few times.

As noted, by the time the Supreme Court handed down its decision in the case of A.C., she had reached the age of sixteen. Under the Manitoba legislation, she had the right to make an enforceable medical decision denying blood transfusions — even to save her life — should another attack of Crohn’s occur, assuming she otherwise understood the import of such a medical decision. (Justice Abella noted in her opinion that A.C. had reached the age of sixteen.)

THE SUPREME COURT OF CANADA DECIDES

The central issue before the Supreme Court in the A.C. case was whether the questioned provisions of the Child and Family Services Act (CFSA) were constitutional or, more specifically, whether they satisfied the requirements of the Charter of Rights and Freedoms. The answer to that question came in three opinions: the majority opinion given by Justice Abella; a concurring opinion of Chief Justice McLachlin; and a dissent of Justice Binnie. The basis for each of the three opinions was an interpretation of the CFSA.

A.C.’S ARGUMENT

Counsel for A.C. did not argue that CFSA was unconstitutional because it gave those sixteen and older the right to chose medical treatment or to reject such treatment — so long as they were competent. Rather, A.C. argued that the questioned provisions of the Charter had to be interpreted in a way that gave those under the age of sixteen the right to have their views as to medical treatment considered in decision-making.

Recall that the trial judge said he didn’t have to consider A.C.’s views as to blood transfusions. He only had to consider what would be in her best interests.

Justice Abella wrote:

The heart of A.C.’s constitutional argument is that there is, in essence, an irrebuttable presumption of incapacity in the Act for those under 16, and that this renders sections 25(8) and 25(9) of the Child and Family Services Act contrary to sections 2(a), 7 and 15 of the Charter.

She does not challenge the constitutionality of a cut-off age of 16; she challenges the constitutionality of depriving those under 16 of an opportunity to prove that they too have sufficient maturity to direct the course of their medical treatment. Her submission is that at common law, mature minors, similar to adults, have the capacity to decide their own medical care. In failing to recognize this “deeply rooted” right, the statutory scheme, she argues, infringes the Charter.

Her section 7 argument is that the provisions infringe her liberty and security interests and are contrary to the principles of fundamental justice because the inability of those under 16 to prove capacity is an arbitrary restriction. She argued that if the provisions were interpreted to include a rebuttable presumption that would allow her to lead evidence demonstrating that she had sufficient maturity to make treatment decisions, they would not be arbitrary and would be in accordance with the principles of fundamental justice.

A.C. further argued that the provisions violate section 15 because they discriminate against her based on age. Again, however, she concludes that if the legislation permitted her to demonstrate that she had sufficient decisional maturity, there is no discrimination.

Lastly, A.C.’s argument under section 2(a) is that the provisions violate her religious convictions as a Jehovah’s Witness. Once again, it is her view that the ability to lead evidence of maturity would cure any constitutional infirmity.

THE MAJORITY APPROACH

Justice Abella, for the Court majority, turned to a number of interpretive tools to explain the meaning of the questioned sections of the Charter. By a considerable margin, at least judging from the space allotted to such tools, the legislative scheme itself and the common law have important places. (So it is that a number of exercises that follow focus on common law cases cited by Justice Abella.)

THE CFSA — LEGISLATIVE CORNERSTONE

First, however, let’s examine what Justice Abella called the “legislative scheme” of the CFSA. This meant taking a look at the CFSA as a whole and asking how it impacts on the questioned provisions.

Justice Abella noted that the “cornerstone” of the CFSA is section 2(1)’s “best interests of the child standard.” The Act then lists factors that go into determining the best interests of the child which Justice Abella listed, emphasizing certain portions:

(a) the child’s opportunity to have a parent/child relationship as a wanted and needed member within a family structure;

(b) the mental, emotional, physical and educational needs of the child and the appropriate care or treatment, or both, to meet such needs;

(c) the child’s mental, emotional and physical stage of development;

(d) the child’s sense of continuity and need for permanency with the least possible disruption;

(e) the merits and the risks of any plan proposed by the agency that would be caring for the child compared with the merits and the risks of the child returning to or remaining within the family;

(f) the views and preferences of the child where they can reasonably be ascertained;

(g) the effect upon the child of any delay in the final disposition of the proceedings; and

(h) the child’s cultural, linguistic, racial and religious heritage.

The CFSA defines a child as anyone under the “age of majority.” In Manitoba, that age is eighteen (though for purposes of medical treatment, Manitoba gives any competent person sixteen or older the right to decide).

Importantly, Justice Abella noted:

In any proceeding under the Act, a child 12 years of age or more is entitled to be advised of the proceedings and of their possible implications for the child and shall be given an opportunity to make his or her views and preferences known to the decision-maker (§2(2)). Children under 12 can also have their views taken into account if a judge is satisfied that they are able to understand the nature of the proceedings and the judge “is of the opinion that it would not be harmful to the child” (§2(3)).

In summary then, for purposes of understanding the legislative scheme of the CFSA, it centres on the “best interests of the child.” And it goes on to involve for those above the age of twelve the opportunity to input into medical decisions.

The chief justice would have confined her decision to an analysis of the CFSA itself; she would have reached the same conclusion as Justice Abella. However, Justice Abella believed it necessary to review other legal sources, especially the common law, for interpretive insights into the CFSA.

Justice Abella’s summary of the common law began with the United Kingdom (where the common law first took root) and then moved to Canada. Her comparison of jurisdictions then went from the United States to and including Australia. She seemed to reach the following conclusions:

The common law is not static. It has shown a capacity to reflect social changes. In this regard, the common law moved from denying minors (children) any input into medical decisions, and leaving such judgment to their parents or, in some instances, to the state itself, to a point where minors were permitted to make medical decisions so long as they were shown to have the maturity of a competent adult (what has been called the “mature minor” rule).

Yet, even with this flexibility, parental authority does not end until the child reaches the age of majority. Rather, under the mature minor rule, such authority, Justice Abella said, recedes as the child grows older and approaches majority.

The evolution of the common law often comes slowly, and then in response to individual fact situations. It is not like a law enacted by a legislature which might be addressed to a single problem.

THE GILLICK CASE

The first case from the United Kingdom cited by Justice Abella was Gillick v. West Norfolk and Wisbech Area Health Authority, 1985, 3 All English Reports 402. There, a doctor prescribed contraception for a girl under the age of sixteen without the permission of the girl’s parents. The parents sued the doctor in tort (negligence) arguing that the doctor infringed on their parental rights (and duty).

The court majority stated that, under certain circumstances, a minor could consent to medical treatment without parental consent. Lord Fraser, for the court majority, said:

It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Of course the consent of the parents should normally be asked, but they may not be immediately available.

Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. Moreover, a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape…. Accordingly, I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age.

Lord Fraser noted that a rigid legal line would fail to reflect the reality that a child’s transition from childhood to adulthood is a continuous one. He said:

It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice, most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts.

But, what is it that the court “recognized”? Remember, as Justice Abella pointed out, that the girl in Gillick had the advice of a medical doctor in terms of contraception. She was not acting alone. There was a skilled professional — a physician — who advised and whose advice she apparently accepted.

ANOTHER U.K. CASE CITED

It was several years after the Gillick decision that the English Court of Appeal dealt with a more complicated case that, in its own way, expanded the scope of the common law. At issue was a child’s refusal of medical treatment “in the face of great injury or even death.”

On the one hand, the court made it clear that it could override both the decision of parents and that of a mature minor. The court could act under an inherent authority as parent of the state (parens patriae) in the interest of the child. Yet, having said this, the court emphasized that the wishes and objections of the child “factor significantly” into the court’s determination of the child’s best interests. (This judgment is weighted in relation to the child’s maturity.)

Lord Justice Balcombe stated:

There is no overriding limitation to preclude the exercise by the court of its inherent jurisdiction and the matter becomes one for the exercise by the court of its discretion. Nevertheless the discretion is not to be exercised in a moral vacuum.... As children approach the age of majority, they are increasingly able to take their own decisions concerning their medical treatment.... Accordingly the older the child concerned the greater the weight the court should give to its wishes, certainly in the field of medical treatment. In a sense this is merely one aspect of the application of the test that the welfare of the child is the paramount consideration. It will normally be in the best interests of a child of sufficient age and understanding to make an informed decision that the court should respect its integrity as a human being and not lightly override its decision on such a personal matter as medical treatment, all the more so if that treatment is invasive.

What I do stress is that the judge should approach the exercise of the discretion with a predilection [an initial view] to give effect to the child’s wishes on the basis that prima facie [on the face of it] that will be in his or her best interests.

(The quote was included by Justice Abella in the A.C. decision.)

Lord Justice Nolan agreed. And, he stated that “in considering the welfare of a child, the court must not only recognise but if necessary defend the right of the child, having sufficient understanding to take an informed decision, to make his or her own choice.”

A MATTER OF COSTS

Usually, the party that wins in an appeal is awarded court-determined costs — no small matter in an appeal case going before the Supreme Court of Canada. However, A.C., in one sense, did not “prevail.” Her case was “moot” — that is, by the time of the appeal, she no longer needed blood transfusions. Still, she won the case in terms of the principle in question, namely, the right of those under sixteen to have their views heard and considered in medical procedures affecting them.

Justice Abella wrote for the Court majority:

On the other hand, while A.C. has technically lost her constitutional challenge, she successfully argued that the provisions should be interpreted in a way that allows an adolescent under the age of 16 to demonstrate sufficient maturity to have a particular medical treatment decision respected. In these circumstances, it seems to me appropriate that since this is the major impact of these reasons, she should be awarded her costs.

Accordingly, although the appeal from the Court of Appeal’s finding of constitutionality is dismissed, A.C. is entitled to her costs throughout.

YOU BE THE JUDGE

AN ADULT IN HOSPITAL EMERGENCY

THE FACTS

Georgette Malette, a competent adult, arrived at an emergency room of a hospital unconscious. She was a Jehovah’s Witness and carried with her a signed medical alert card clearly stating that no blood was to be administered to her under any circumstances. The attending doctor, acting on a belief in the sanctity of life, gave her a blood transfusion. He was aware of the medical alert card that she carried.

Malette brought an action against the doctor for battery — a common law claim for wrong done for which the remedy usually is damages (a money award). There is no doubt that the doctor acted in an emergency situation. Nor is there any doubt that the procedure used by the doctor (blood transfusion) was appropriate under the circumstances.

THE ISSUE

Even though the blood transfusion saved Malette’s life, can the doctor be held liable for the wrong of battery?

POINTS TO CONSIDER

Competent persons generally have the right to accept or reject any medical treatment.

The signed card requesting that no blood transfusions be given was a clear expression of Malette’s intention not to have any blood transfusions.

The attending doctor, in ordering the blood transfusion, acted not only in good faith, but in the belief he was doing what the medical professions requires of him in protecting the life of a patient.

The state has an interest in preserving the life and/or health of persons under its jurisdiction.

Liability for battery in this fact situation is determined under the common law. There is no statute comparable to that involved in the case of A.C.

DISCUSSION

The facts reflect what Canadian courts have called a leading case — Malette v. Shulman,[1990], 72 Ontario Reports (2d series) 417 (Ontario Court of Appeal). There, the appellate court found the attending doctor liable for damages in battery.

Justice Sydney Robins, for the appellate court, explained the reasoning why, even when saving a person’s life, a doctor must yield to a competent person’s wishes. He stated:

A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment…. The doctrine of informed consent is plainly intended to ensure the freedom of individuals to make choices concerning their medical care.

To [give a blood transfusion to] a Jehovah’s Witness in the face of her explicit instructions to the contrary would, in my opinion, violate her right to control her own body and show disrespect for the religious values by which she has chosen to live her life.

The state’s interest in preserving the life or health of a competent patient must generally give way to the patient’s stronger interest in directing the course of her own life.

In sum, it is my view that the principal interest asserted by Mrs. Malette in this case — the interest in the freedom to reject, or refuse to consent to, intrusions of her bodily integrity — outweighs the interest of the state in the preservation of life and health and the protection of the integrity of the medical profession. While the right to decline medical treatment is not absolute or unqualified, those state interests are not in themselves sufficiently compelling to justify forcing a patient to submit to nonconsensual invasions of her person.

AN EXCEPTION TO THE RULE?

Suppose, however, that a patient arrives at a hospital emergency room unconscious and without a signed card, such as that carried by Malette. Attending doctors believe blood transfusions are necessary to save the patient’s life, or at least to prevent significant physical harm. Would such action by physicians be treated as an exception to the decision in the Malette case?

The answer is yes. Justice Robins dealt with this fact situation in the Malette case. He stated:

The emergency situation is an exception to the general rule requiring a patient’s prior consent. When immediate medical treatment is necessary to save the life or preserve the health of a person who, by reason of unconsciousness or extreme illness, is incapable of either giving or withholding consent, the doctor may proceed without the patient’s consent.

The delivery of medical services is rendered lawful in such circumstances either on the ration-ale that the doctor has implied consent from the patient to give emergency aid or, more accurately in my view, on the rationale that the doctor is privileged by reason of necessity in giving the aid and is not to be held liable for so doing. On either basis, in an emergency the law sets aside the requirement of consent on the assumption that the patient, as a reasonable person, would want emergency aid to be rendered if she were capable of giving instructions” [emphasis added].

NO MORE TREATMENT?

Jason and Robert had schizophrenia, a psychiatric illness. They were declared incompetent to consent to psychiatric treatment. Their physician wanted to treat them with neuroleptic drugs which, for many, control or minimize psychotic episodes or symptoms associated with schizophrenia. However, the drugs can have significant and unpredictable harmful side effects.

But before their psychiatric evaluation, Jason and Robert had made it clear that they did not want to take the recommended drugs in spite of their doctor’s recommendation.

Should a court order the drug treatment? Justice Robins, speaking for the Ontario Court of Appeal, ruled that Jason and Robert (fictitious names) were to have their preferences respected (Fleming v. Reid [1991], 4 Ontario Reports (3d series) 74. His decision was based on an interpretation of the common law. He stated:

The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person’s body is considered inviolate and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate [end] the right of medical self-determination” [emphasis added by Justice Abella who quoted Justice Robins in A.C.].

YOU BE THE JUDGE

A CASE OF A “MATURE MINOR”?

THE FACTS

P.M. is a sixteen-year-old who is pregnant. She has consulted a physician and wants a therapeutic abortion. Her parents are aware of her pregnancy and have discussed it with her. They want her to have the baby. But it is also clear that P.M. is intent on an abortion.

There is every reason to believe that P.M. is healthy and that, with normal care, the pregnancy, if carried to term, would result in a healthy child. It is also clear that P.M. is what can be described as a normal and reasonably intelligent sixteen-year-old who simply does not want to mother a child at this point in her life.

For our purposes, we will assume that the pregnancy is in its first three months and that P.M. wants the abortion at the earliest possible time in order to avoid any complications — medical or emotional.

The hospital where the abortion would be performed has a special committee on abortions, and it has given approval to the procedure for P.M. The committee consists of physicians, surgeons, and a social worker. P.M.’s parents have brought an injunction (a court order to stop the abortion).

THE ISSUE

Does P.M. have the right to proceed with the abortion despite the wishes of her parents?

POINTS TO CONSIDER

For our purposes, we will assume that the province where P.M. lives and where the abortion would take place does not have a statute similar to that of Manitoba, where A.C. lived. Rather, we will assume that the applicable law is that of the common law.

The common law assumes that a “child” can be involved in the decision-making process relating to her health. The extent of that involvement — or her impact on decision-making — will be in direct relation to her maturity.

In law, parents have authority or parental rights in relation to their child. Those rights continue until the child reaches the age of majority, or is otherwise “emancipated.” (By “emancipated,” we mean the child is no longer living at home and usually is self-supporting.)

On the whole, in interpreting whether to allow such decisions by a child, a court will recognize child growth through adolescence.

DISCUSSION

The likelihood is that the injunction sought by P.M.’s parents will be denied. Justice Abella in A.C. cited a case with similar facts — J.S.C. v. Wren [1986], 76 Alberta Reports 115 (Court of Appeal). It was the reasoning in Wren that Justice Abella, speaking for the majority in A.C., seemed to endorse.

That reasoning seemed to involve recognition that young people can grow to maturity and, as they do, that growth should be recognized and allowed to impact on decision-making. This is not to eliminate the role of parents in guiding children as they grow to maturity. Rather, it is, as stated, to recognize that such growth is a process — the result of which a court can recognize. This, in part, is what Justice Abella quoted from in the opinion of Justice Roger Kerans of the Alberta Court in the Wren case:

What is the application of the principle in this case? We infer from the circumstances detailed in argument here that this expectant mother and her parents had fully discussed the ethical issues involved and, most regrettably, disagreed. We cannot infer from that disagreement that this expectant mother did not have sufficient intelligence and understanding to make up her own mind. Meanwhile, it is conceded that she is a “normal intelligent 16 year old.” We infer that she did have sufficient intelligence and understanding to make up her own mind and did so. At her age and level of understanding, the law is that she is to be permitted to do so.

Parental rights (and obligations) clearly do exist and they do not wholly disappear until the age of majority. The modern law, however, is that the courts will exercise increasing restraint in that regard as a child grows to and through adolescence.

Justice Abella stated: “The proposition advanced in Wren was not that a ‘mature minor’ was essentially an adult for medical treatment purposes, but rather that courts must give adolescents room to exercise their autonomy to the extent that their maturity allows.”

Perhaps. more to the point, Justice Abella did not have to agree with the appellate court that J.S.C. was a mature minor. It was enough for Justice Abella to recognize that the common law had moved to the point of recognizing that children, to the extent of their maturity, had a right to be part of medical decisions affecting them.

RULES FOR CHILD MEDICAL INPUT UNDER THE CFSA

Justice Abella, speaking for the majority in A.C., ruled that the questioned provisions are to be interpreted in a way that allows a child input into medical decisions in relation to that person’s maturity. The Court majority reached that decision having looked at the Manitoba Child and Family Services Act (CFSA) as a whole, and then having reviewed the common law, which, in a general way (especially in the United Kingdom and Canada), seems to have taken the same approach.

Yet, it remains to be seen how this generalization will be applied to facts. How is a court, as a practical matter, to determine whether and the extent to which it should allow, or balance, the judgment of a child against that of medical professional? Justice Abella, for the Court, attempted to provide some answers, though even they have a certain generality. Further, the listing provided is intended to aid, not necessarily to control, how decisions are to be made. This is what she said:

In those most serious of cases, where a refusal of treatment carries a significant risk of death or permanent physical or mental impairment, a careful and comprehensive evaluation of the maturity of the adolescent will necessarily have to be undertaken to determine whether his or her decision is a genuinely independent one, reflecting a real understanding and appreciation of the decision and its potential consequences.

As all of this demonstrates, the evolutionary and contextual character of maturity makes it difficult to define, let alone definitively identify. Yet the right of mature adolescents not to be unfairly deprived of their medical decision-making autonomy means that the assessment must be undertaken with respect and rigour. The following factors may be of assistance:

What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?

Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?

Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?

What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment?

Are there any existing emotional or psychiatric vulnerabilities?

Does the adolescent’s illness or condition have an impact on his or her decision-making ability?

Is there any relevant information from adults who know the adolescent, like teachers or doctors?

This list is not intended to represent a formulaic approach. Its objective is to assist courts in assessing the extent to which a child’s wishes reflect true, stable and independent choices.

How, it could be asked, would these considerations have applied to A.C.? Again, as a practical matter, A.C. was given blood transfusions against her will — and she lived. That deed cannot be taken back. If the transfusions had not been given, this much can be stated: The examining judge did not even seek A.C.’s input into the proposed procedure. If he had, it seems clear that the examining judge saw his duty as making a decision which would save A.C.’s life. In his view, so it seems, that was in the “best interests” of A.C. And, that was the statutory goal — deciding in a way that would favour A.C.’s best interests.

RESOLVING CONSTITUTIONAL ISSUES

Now, the question was whether allowing for growing input into decision-making by a person under sixteen comports with the Charter. Justice Abella, again speaking for the Court majority in so ruling, wrote:

Constitutional compliance in the context of the medical treatment decisions anticipated by §§ 25(8) and 25(9) [of the CFSA] means that the best interests standard must be interpreted in a way that is not arbitrary (to avoid violating section 7 of the Charter); not discriminatory on the basis of age (to avoid a section 15 violation); and not contrary to a child’s right to freedom of religion protected by section 2(a). A.C. argued that all such constitutional violations can be avoided by allowing someone in her position to attempt to demonstrate sufficient maturity to have her treatment wishes respected.

In my view, this is exactly what the “best interests” standard requires in medical treatment decision cases for adolescents. When the “best interests” standard is applied in a way that takes into increasingly serious account the young person’s views in accordance with his or her maturity in a given treatment case, the legislative scheme created by §§ 25(8) and 25(9) of the Child and Family Services Act is neither arbitrary, discriminatory, nor violative of religious freedom.

Justice Abella then examined each of the rights claimed by A.C. under the Charter. In effect, by assuring those under sixteen the right to input into medical decision-making in relation to their maturity, their Charter rights are preserved. Here, we will go through each of the Charter rights claimed and Justice Abella’s response.

1. Section 7 (“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”)

Justice Abella stated:

The inability of an adolescent to determine her own medical treatment ... constitutes a deprivation of liberty and security of the person, which must, to be constitutional, be in accordance with the principles of fundamental justice....

A.C. argued that if the provisions are interpreted narrowly so that someone under 16 is deprived of the opportunity to demonstrate her capacity, they are arbitrary, and a law that is arbitrary will not be in accordance with the principles of fundamental justice.... A law will be arbitrary where it bears no relation to, or is inconsistent with, the objective that lies behind it. To determine whether this is the case, it is necessary to consider the state interest and societal concerns that the provision is meant to reflect....

In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts.... The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person’s liberty and security, the more clear must be the connection. Where the individual’s very life may be at stake, the reasonable person would expect a clear connection, in theory and in fact, between the measure that puts life at risk and the legislative goals.

It is therefore necessary to put the analysis into the context of the objectives of the provisions. The overarching goal of statutes such as the Child and Family Services Act is to protect children from harm.... In B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 Supreme Court of Canada Reports 315, La Forest J. discussed the importance of the state’s role in protecting children:

The state’s interest in legislating in matters affecting children has a long-standing history.... More particularly, the common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being.... The protection of a child’s right to life and to health, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure [emphasis added].

On the other hand, adolescents clearly have an interest in exercising their capacity for autonomous choice to the extent that their maturity allows. And society has a corresponding interest in nurturing children’s potential for autonomy by according weight to their choices in a manner that is reflective of their evolving maturity. In order to promote this objective, paternalism should always be kept to a minimum and carefully justified.

Given these competing values, a problem arises when a child’s interest in exercising his or her autonomy conflicts with society’s legitimate interest in protecting him or her from harm....

Given the significance we attach to bodily integrity, it would be arbitrary to assume that no one under the age of 16 has capacity to make medical treatment decisions. It is not, however, arbitrary to give them the opportunity to prove that they have sufficient maturity to do so.

Interpreting the best interests standard so that a young person is afforded a degree of bodily autonomy and integrity commensurate with his or her maturity navigates the tension between an adolescent’s increasing entitlement to autonomy as he or she matures and society’s interest in ensuring that young people who are vulnerable are protected from harm. This brings the “best interests” standard in §25(8) in line with the evolution of the common law and with international principles, and therefore strikes what seems to me to be an appropriate balance between achieving the legislative protective goal while at the same time respecting the right of mature adolescents to participate meaningfully in decisions relating to their medical treatment. The balance is thus achieved between autonomy and protection, and the provisions are, accordingly, not arbitrary.

2. Section 15(1) (“Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”)

There is no doubt that discrimination on the basis of age took place in relation to A.C. But Justice Abella ruled that it was not violative of section 15(1) of the Charter. She wrote:

Under the Child and Family Services Act, the distinction between promoting autonomy and protecting welfare is presumed to collapse at age 16, subject to evidence to the contrary. But whether a child is under or over 16, the weight that is accorded to his or her views under s. 25 of the Act will ultimately correspond to a court’s conclusions about the extent to which the child is capable of making decisions in his or her own best interests. By permitting adolescents under 16 to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging prejudice or stereotype based on age can be said to be engaged. There is therefore no violation of section 15.

3. Section 2(a) (“Everyone has the following fundamental freedoms — freedom of conscience and religion....”)

A.C. made it clear that not taking a blood transfusion was important to her religious beliefs. She wanted her views taken into consideration by the examining judge. But the judge refused to do so. Again, A.C. wanted only to be listened to and have her views fairly weighed in the balance. Justice Abella agreed with this position. Decisions made in this way would not, she said, violate the Charter right to freedom of religion.

SUMMING UP

This is how Justice Abella summed up the majority decision:

In conclusion, I agree with A.C. that it is inherently arbitrary to deprive an adolescent under the age of 16 of the opportunity to demonstrate sufficient maturity when he or she is under the care of the state. It is my view, however, that the “best interests” test referred to in §25(8) of the Act, properly interpreted, provides that a young person is entitled to a degree of decisional autonomy commensurate with his or her maturity.

The result of this interpretation of §25(8) is that adolescents under 16 will have the right to demonstrate mature medical decisional capacity. This protects both the integrity of the statute and of the adolescent. It is also an interpretation that precludes a dissonance between the statutory provisions and the Charter, since it enables adolescents to participate meaningfully in medical treatment decisions in accordance with their maturity, creating a sliding scale of decision-making autonomy. This, in my view, reflects a proportionate response to the goal of protecting vulnerable young people from harm, while respecting the individuality and autonomy of those who are sufficiently mature to make a particular treatment decision.

WHAT IF?

Suppose a legislature gave courts an absolute right (unfettered discretion) to make medical decisions for children despite their actual capacities, while at the same time presuming that youths sixteen and over were competent to veto treatment they did not want.

Would such a law be valid under the Charter? Probably not. Justice Abella, herself, raised this question and answered it in the following way:

If §§ 25(8) and 25(9) did in fact grant courts an unfettered discretion to make decisions on behalf of all children under 16, despite their actual capacities, while at the same time presuming that children 16 and over were competent to veto treatment they did not want, I would likely agree that the legislative scheme was arbitrary and discriminatory.

A rigid statutory distinction that completely ignored the actual decision-making capabilities of children under a certain age would fail to reflect the realities of childhood and child development. However, this is not the effect of §§ 25(8) and 25(9) [of the CFSA]. As the foregoing analysis demonstrates, a child’s maturity and corresponding interest in self-determination will factor significantly into any determination of his or her “best interests” under §25(8) of the Act, with the child’s views becoming increasingly determinative as his or her maturity increases.

JUSTICE BINNIE DISSENTS

Justice Binnie of the Supreme Court of Canada dissented in the A.C. decision. [In his view, the trial judge (Justice Kaufman) still had the authority to make a final determination — even with A.C.’s input — that it would have been in her best interests for the blood transfusions to have taken place.] He had difficulty with the judge’s finding of fact that A.C. had the maturity to make the medical decision refusing blood transfusions.

Justice Binnie stated:

Children may generally (and correctly) be assumed to lack the requisite degree of capacity and maturity to make potentially life-defining decisions. It is this lack of capacity and maturity that provides the state with a legitimate interest in taking the decision-making power away from the young person and vesting it in a judge under the CFSA. Yet, this is not a case about broad government programs where line drawing and generalized age categories are sometimes essential and inevitable for administrative reasons. The CFSA requires individualized treatment decisions, and courts routinely handle capacity as a live issue under the CFSA in the case of minors between the ages of 16 and 18.

The question here is whether in the course of those individualized CFSA treatment assessments the presumption of incapacity to refuse medical treatment can constitutionally be made irrebuttable in the case of young people under 16. I do not think it can. In such cases, the legitimate object and basis of state intervention in the life of the young person has, by reason of the judge’s finding of maturity, ceased to exist.

In short, §25 of the CFSA is unconstitutional because it prevents a person under 16 from establishing that she or he understands the medical condition and the consequences of refusing treatment, and should therefore have the right to refuse treatment whether or not the applications judge considers such refusal to be in the young person’s best interests, just as is now the case with a “mature minor” who is 16 or 17 years old.

The Director argues that no Charter rights are absolute, which is true, but the onus is on the state to justify overriding an individual’s fundamental choices about invasive medical treatment. We are not dealing with categories of people classified by age for administrative convenience as, for example, say, in the case of voting rights. The CFSA mandates an individualized assessment on a patient-by-patient basis.

In my opinion the deprivation of liberty or security of the person does not accord with the principles of fundamental justice where the only justification advanced for the deprivation, namely the incapacity of the young person, has been accepted by the applications judge not to exist.

REFERENCES AND FURTHER READING

* Cited by the Supreme Court of Canada.

Alderson, Priscilla. “Everyday and medical life choices: decision-making among 8- to 15-year-old school students.” In Children, Medicine and the Law, edited by Michael Freeman. Aldershot, UK: Ashgate, 2005.*

______ . “In the genes or in the stars? Children’s competence to consent.” In Children, Medicine and the Law, edited by Michael Freeman. Aldershot, UK: Ashgate, 2005.*

Ambuel, Bruce and Julian Rappaport. “Developmental Trends in Adolescents’ Psychological and Legal Competence to Consent to Abortion.” Law & Human Behaviour 16 (1992): 129.*

“Blood Transfusion Case: Immaturity Is No Mere Stereotype.” Globe and Mail, July 1, 2009.

Brazier, Margaret and Caroline Bridge. “Coercion or caring: analysing adolescent autonomy,” In Children, Medicine and the Law, edited by Michael Freeman. Aldershot, UK: Ashgate, 2005.*

Bridge, Caroline. “Religious Beliefs and Teenage Refusal of Medical Treatment.” Modern Law Review 62 (1999): 585.*

Buchanan, Allen E. and Dan W. Brock. Deciding for Others: The Ethics of Surrogate Decision Making. Cambridge: Cambridge University Press, 1989.*

Eekelaar, John. “White Coats or Flak Jackets? Doctors, Children and the Courts — Again.” Law Quarterly Review 109 (1993): 182.*

Ferguson, Lucinda. “Trial by Proxy: How Section 15 of the Charter Removes Age from Adolescence.” Journal of Law and Equality 4 (2005): 84.*

Fortin, Jane. Children’s Rights and the Developing Law, 2nd ed. London: LexisNexis UK, 2003.*

Freeman, Michael. “Removing rights from adolescents.” Adoption & Fostering 17 (1993): 14.*

Hartman, Rhonda Gay. “Coming of Age: Devising Legislation for Adolescent Decision-Making.” American Journal of Law and Medicine 28 (2002): 409.*

Makin, Kirk. “Supreme Court to Hear Mature-Minor Rights Case.” Globe and Mail, May 20, 2009.

______. “Top Court Rules Transfusion Law Constitutional.” Globe and Mail, June 26, 2009.

______. “Top Court Gives Weight to Ill Children’s Wishes.” Globe and Mail, June 27, 2009.

Manitoba Law Reform Commission. Minors’ Consent to Health Care, Report No. 91. Winnipeg: The Commission, 1995.*

Munby, Sir James. “Consent to Treatment: Children and the Incompetent Patient.” In Principles of Medical Law, 2nd ed. edited by Andrew Grubb, assisted by Judith Laing. Oxford: Oxford University Press, 2004.*

Ross, Laurie Friedman. “Health Care Decisionmaking by Children: Is It in Their Best Interest?” In Children, Medicine and the Law, edited by Michael Freeman, Aldershot, UK: Ashgate, 2005.*

Sneiderman, Barney, John C. Irvine and Philip Osborne. “The Mature Minor Patient and the Refusal of Treatment.” Canadian Medical Law, 3rd ed. Scarborough, ON: Carswell, 2003.*

“Teen Cannot Refuse Blood Transfusion, Top Court Rules.” National Post, June 26, 2009.

Weithorn, Lois A. and Susan B. Campbell. “The Competency of Children and Adolescents to Make Informed Treatment Decisions.” Child Development 53 (1982): 1589.*

Chapter 2

Forced Confinement, Forced Medication

This chapter centres on persons who have been placed in psychiatric facilities because they are “not criminally responsible” (NCR) for crimes they have committed. The central questions raised are:

What control, if any, do such persons have over the treatments their doctors think best for them?

When and under what circumstances may they be released (discharged) from the institution?

Under Canada’s Criminal Code, persons who commit criminal acts because of a mental disorder are not acquitted. They are not, as such, found innocent. Rather, because of their mental disorder, they are ruled not to understand the “nature or quality” of the wrong charged. They are not criminally responsible.

There is no presumption that an NCR individual is a danger to the safety of the public. On the contrary, the Criminal Code requires that persons found NCR be granted an absolute discharge (that is, released) unless a court or a review board is able to conclude that the individual poses a significant risk to the safety of the public. Even when this risk is established, the conditions for controlling the NCR individual are to be “the least onerous and least restrictive to the accused” consistent with the level of risk posed, ranging from detention “in custody in a hospital” to discharge “subject to such conditions as the court or review board considers appropriate.”

Finding that an individual is NCR is not a finding of guilt. Nor is the detention of that person to be considered punishment. Rather, detention is required under the Criminal Code only for the purpose of protecting the public. Once that purpose has been served, then release is required. Moreover, as we shall see, any decision made by a review board or a court is not final. It is subject to regular and required review.

The Supreme Court of Canada has made it clear that the Charter of Rights and Freedoms requires no less. Among other rights, the Charter guarantees the life, liberty, and security of the person, except for those restraints which can be justified under principles of fundamental justice and in accordance with those reasonable limits accepted in a free and democratic society. Often, as in the cases discussed in this chapter, the principles of the Charter have been included in the statutes interpreted by the Supreme Court.

We will discuss two cases decided on the same day — June 6, 2003 — by the Supreme Court: Dr. Russel Fleming v. Professor Scott Starson a.k.a. [also known as] Scott Jeffery Schutzman and The Queen v. Terry Steven Owen.

In the Starson case, doctors attempted to compel medications that the patient refused on the ground that they would dull his brain and result in a life that for him would not be worth living. He was, however, willing to continue psychotherapy, and to voluntarily remain in the mental institution. The Supreme Court affirmed his right to refuse the medications.

In the Owen case, the NCR patient sought an absolute discharge from a psychiatric institution to which he had been committed more than eighteen years after he murdered a friend because of a drug habit that he could not or would not curtail. He argued that no psychiatric treatment (from medications to psychotherapy) would be of any benefit to him. Rather, he said that he should be released and, if he committed any other criminal wrong, then he should be punished just like any convicted person. The Supreme Court affirmed a finding that committed the patient to a mental institution. The Owen case will be set out in the “You Be the Judge” section.

Neither case involved the Charter as such. They related to: (1) the application of the statutes governing medications and restraining an NCR individual because of danger to public safety; or (2) the individual’s ability to decide for himself whether to accept the medical care urged by doctors. The reason why the Charter was not brought into play seemed to be because the controlling statutes incorporated many of the relevant Charter rights. The Court’s task was how to interpret and apply the statutes. We will deal first with the Starson case, and then proceed to the Owen case.

THE STARSON CASE: MEDICATIONS REFUSED

He preferred to be called Professor Starson. However, he was born Scott Jeffery Schutzman. At the time of the case before the Supreme Court, he was forty-seven. He was not by university training a professor. Rather, “professor” was an honorary title allowed him by many academics due to the quality of work that he had done in physics that, the majority of the Supreme Court said, was the “driving passion in his life.”

His work centred on anti-gravity, the theory of relativity, and the measurement of time. He believed it was leading to the development of a starship — one that would allow for interstellar contact. He received some recognition among leading physicists. In 1991, he co-authored a paper — Discrete Anti-Gravity — with Pierre Noyes, professor emeritus of theoretic physics at Stanford University’s Linear Accelerator Center. Noyes described Starson’s work as ten years ahead of its time. The publication date of the co-authored article may have some significance because it came eight years after Starson’s perceived mental/sanity problems first arose.

The Supreme Court stated: “By all accounts, Professor Starson is an extraordinarily intelligent and unique individual.” In fact, however, Starson’s highest academic degree was that of an undergraduate in electronic engineering from Ryerson Polytechnic University in Toronto.

Schutzman changed his name to Starson in 1993, in part because (according to his mother, Jeanne Stevens) he saw himself as a son of the stars. He believed that he communicated with aliens from other planets. In interviews with reporters at the time his case came before the Supreme Court, he was said to have spoken “compellingly of his research and ideas for invention from personal nuclear reactors to laser shavers.” However, he also suggested to reporters that Pierre Elliott Trudeau, former prime minister of Canada, was killed by an alien; that Pope John Paul II worked for him; and that he had plans to marry comedienne Joan Rivers (whom he had never met). Starson saw himself as the world’s greatest scientist, in addition to having world-class standing as a skier and arm-wrestler.

It was in 1983 that friends became aware of what they believed were Starson’s mental problems. They found him in his Toronto apartment, huddled and delusional, in a large cage belonging to Mumbles, his blue macaw. Starson said that Mumbles was his son and the force of all intelligence in the universe. And, he had words about the Supreme Court (spoken before it sustained his right to refuse medications): “Your Supreme Court — and I mean no disrespect by this — is Little League.... The Supreme Court does not have solutions. They report to me” (Globe and Mail, June 7, 2003).

Since that time, Starson had been in and out of a number of mental institutions. At times, he was placed in such institutions by order of a court, who found him to be not criminally responsible when he appeared on charges that he had made death threats against tenants in buildings in which he lived, and also against fellow employees. In no instance, as the Supreme Court noted, had Starson in fact injured or attempted to injure anyone, including himself — except in reacting against unwanted forced medication. It was Starson’s refusal to take mind and mood-altering medications thought necessary by his attending physician at the hospital where he had been admitted as an NCR patient that gave rise to the case before the Supreme Court.

Psychiatrists had diagnosed Starson as likely suffering from what is medically called a bipolar affective disorder. For him, the disorder had elements of schizophrenia and manic depression. It can give rise to sudden behavioral outbursts and delusions. Some psychiatrists said that if his condition was left untreated by medications, it would worsen. Indeed, they already believed that this had happened to Starson and that his condition might be called psychotic. Other psychiatrists stated that there simply was no proof that medications would slow or stop any worsening condition.

Starson’s mother, whom he had chosen not to see for more than a year before his case was heard, wanted her son to be on the medications recommended by his physicians — even if they had to be forced. She said: “When medicated, he’s the most charming, fascinating, nice individual.... [Without medication] he can’t keep a thought going in a straight line for one minute.”

The death threats made by Starson, which resulted in his NCR status, really were more of a risk to Starson, himself, than to the recipients, his mother seemed to imply: “He is provocative to other people. Not everybody will put up with it. He has been assaulted many times before, and I’m afraid someone will kill him. He is a menace to society. He is his own worst enemy.” Of the Supreme Court’s decision, she said: “I don’t think what they did was a humane judgment.... It’s a disaster because they have destroyed his life and his dream.... It’s the end of his life.”

The Schizophrenia Society of Canada, an advocacy group which the Court allowed to intervene, argued: “The very part of your brain that makes rational decisions is the part of you that’s ill.” In effect, the Society stated that Starson, because of the nature of his illness, simply was not able to make a rational decision as to whether to take the medications his doctors recommended.

WHAT STARSON UNDERSTOOD

Starson, at the time of the case, lived in the medium-security forensic psychiatric unit at the Royal Ottawa Mental Health Centre. It was a secure ward. There were no regular visiting privileges. But, said Starson, “It’s better than where I was.”

At one point in his stay at mental institutions, Starson accepted medications that he said left him incapacitated and drooling. Those medications, his doctors stated, were different from the drugs they urged should be forcibly given to Starson. However, in an interview with the Canadian Press a year before the Court’s decision, Starson said: “I completely, cognizantly got myself into this. I knew I was making a choice I couldn’t go back on” (Canadian Press, June 6, 2003).

Justice John Major, who gave the opinion for the Supreme Court majority in Starson, summarized the record as to Starson’s understanding of his mental condition and the possibilities (and limits) of the proposed treatments: “Professor Starson acknowledged that he suffered from a mental condition, and appreciated the purpose of the proposed medication and the possible benefits suggested by the doctors. He had tried other treatments in the past to no avail. The evidence did not suggest that enforced treatment was likely to improve his condition.”

In saying this, Justice Major quoted from Starson’s testimony before the trial tribunal. There, Starson both accepted that he had mental problems and that he showed symptoms of what psychiatrists call bipolar disorder, though he did not equate his “problems” with mental illness. Rather, he was of the view that through psychotherapy he could resolve his problems. And, until that time, he voluntarily would stay in the mental institution. But, he stated, the stay would not likely be lengthy:

I certainly have exhibited the symptoms of these labels that you give [as to bipolar disorder]. [For example] manic is a fairly clear label. And certainly I have exhibited things that would be considered manic....

I had mental problems thirteen years ago that were difficult, almost impossible for me to handle. What I differ on is that the cause of these problems was not a mental illness.... You [psychiatrists] are a religion. I have the perfect scientific mind. Only you people say I have an illness. [But, these problems which I have] have not been resolved.... However, [through psychotherapy with a hospital psychiatrist, Dr. Posner,] I will learn how to deal with [these problems].... I will be able to go back to [my] life even better than it was before.

Starson made it clear that his perception of reality differed from that held by many others.

WHAT THE ATTENDING PSYCHIATRISTS UNDERSTOOD

Dr. Paul Posner was the psychiatrist upon whom Starson apparently placed some hope that, through psychotherapy, there would be recovery. Dr. Posner, who said that he also was the recipient of a death threat from Starson, in fact offered little promise. He said that Starson simply lacks the mental ability to consent to medical treatment:

I feel [Professor Starson] is not capable to make consent — to make treatment decisions on his own behalf in any way, shape or form. Professor Starson cannot even be engaged in a discussion of a mental illness as it pertains to him. He can’t be engaged in the use of medications as they pertain to him.... [A]ll of the above virtually rules out discussing the consequences or appreciating the consequences of not taking medications....

[D]espite the fact that he may be able to reiterate and he’s got a good memory ... I don’t believe that he has any appreciation whatsoever of what those side-effects could mean in terms of him. And I don’t think he has the ability to engage in a discussion of any sort that would allow him to become more knowledgeable in that area. I mean, at least to argue on a rational basis. No, I don’t think he could do that. So I don’t think he meets any of the sort of criteria for capability of making treatment decisions and I don’t think he’s — I don’t even think he’s close on any of them....

I can say that none of that intelligence [in physics] bears any — has any role in his understanding — has not contributed to his understanding of mental illness. In fact, in an indirect way, all that intelligence may be reinforcing his delusional system. He may be using it to perpetuate things. Maybe at a faster or more impressive rate than the average delusional patient.

One of the things about delusions is that when you develop these kinds of illnesses, you can’t effectively evaluate what happens around you, so you begin to construct your own reality. Sometimes you borrow it from the Bible, from science fiction, from whatever source. Sometimes, especially if you’re smart enough, if you’ve got enough raw intelligence, you build it yourself, perhaps on a skeleton of something else. And I think that’s where the intelligence has gone. I don’t think it’s certainly gone into understanding that he has a mental illness....

I don’t agree that [Professor Starson’s] disorder has been a steady psychotic state. In fact, it’s been a progressive psychotic state and there are a lot of very good pieces of evidence to support that.... What [this death threat to a hospital worker] means to me is that the illness has taken on another dimension. If provocation of ... that objectively small or innocent of a degree could have evoked that kind of explosion, that concerns me, because ten or fifteen years ago, I don’t believe it would have [happened]....

[T]he literature from bipolar disorder shows that untreated ... mania ... can and often does progress in severity, so it’s not a question of maintaining the status quo. If you sit still and do nothing, harm will happen at a physiologic level, evidenced by the worsening of his state, as perceived by others.

Dr. Ian Swayze, a second psychiatrist at the institution where Starson was held, said that Starson was not capable of giving his consent. He said that Starson was not able to understand the foreseeable consequences of refusing the treatment proposed and, in that regard, that he was unable to understand the information necessary to making an informed decision. Dr. Swayze offered this example:

We [Dr. Swayze and Starson] then attempted to review, or I attempted to review, the risks and benefits of those medications and was, once again, quickly interrupted: All chemicals are rejected [said Starson], with the understanding by myself that that inferred that there were no medications which were amenable or appropriate for a bipolar disorder or psychotic episodes and that there was no consideration that those [medications] would be appropriate under any circumstances.

I’ve attempted to focus on the issue of the benefit of those medications. “None exist,” [Starson said]. Then [I tried to] canvass the area of risk involved in rejecting medications and was told [by Starson], in no uncertain terms, once again, that the medications were chemicals. They should be rejected and that there was no risk of rejecting them, as they would, in fact, inflict injury upon any person foolish enough to accept them.

THE LEGAL CONTEXT FOR “FORCED” CONSENT

Starson’s doctors had no legal right to force drugs upon him even if they thought (as they did) that such treatments would be in his best interest. The reasons, based on important values recognized in Canadian law, were stated by Chief Justice McLachlin in her dissent in the Starson case. Her view, in that regard, also reflected the majority decision of Justice Major.

The individual is to be respected as such in law. The individual, so long as he/she has the capacity to decide, must be afforded that right despite good medical opinion to the contrary. And, though neither the chief justice nor Justice Major said so expressly, they impliedly referred to the constitutional basis for that right, found in the Charter of Rights and Freedoms. For example, section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The chief justice, again agreeing with the majority in Starson, stated:

Ordinarily at law, the value of autonomy prevails over the value of effective medical treatment. No matter how ill a person, no matter how likely deterioration or death, it is for that person and that person alone to decide whether to accept a proposed medical treatment.

However, where the individual is incompetent, or lacks the capacity, to make the decision, the law may override his or her wishes and order hospitalization. For example, young children generally lack capacity to make medical decisions because of their age. Thus their parents or guardians, not they, decide what medical treatment they should receive. Where mental illness deprives a person of the ability to make a decision about medical treatment, the law may permit that person’s wishes to be overridden.

With the Charter rights mentioned looming in the background, provinces such as Ontario, through their legislatures, have drawn lines for determining capacity to consent for medical treatment (Health Care Consent Act, 1996 [HCCA], Statutes of Ontario 1996, Chapter 2, Schedule A).

Starson’s doctors wanted to treat his bipolar disorder with a number of medications, including neuroleptics, mood stabilizers, and anti-anxiety and anti-parkinsonian drugs. This was a different range of medications than Starson earlier had allowed. Those earlier medications had reduced his delusions, but they also had side effects that Starson thought were unbearable: They dulled his brain. The new medications, his doctors said, promised better results with “reduced negative side effects.” The doctors said that Starson’s condition would grow worse without the proposed treatments.

Starson refused medications of any kind. He would only agree to psychotherapy. He went before the Consent and Capacity Board (CCB) — composed of a psychiatrist, a lawyer, and a lay person — set up under the HCCA. He asked the board to rule that, within the meaning of the HCCA, he was capable of refusing treatment.

Basing their reasoning on the views of Starson’s attending psychiatrists, the CCB found that Starson was not capable. It gave little weight to his testimony or that of friends and colleagues that contradicted the evidence of the psychiatrists. The Board stated that, in its opinion, Starson was in “almost total denial” of his illness.

It was the Board’s view that without an acknowledgment of his illness, Starson could not relate information to his own particular disorder, and therefore could not understand the consequences of either refusing or consenting to medication. Further, the Board found that he did not “appreciate the risks and benefits of a treatment decision.”

The benefits, as the Board saw them, were that “the medications would bring an improvement in Starson’s delusional state ... and a possible resumption of his goals in the scientific field.”

Starson therefore was, in the Board’s view, “incapacitated.” This meant that if the board’s decision were upheld, he could have been forcibly medicated — that is, injected with the medications that the psychiatrists thought necessary but that Starson argued would condemn him to a life he did not want to lead.

However, under the HCCA, Starson appealed to the Ontario Superior Court, which had the power to reverse the Board’s findings if it determined them to be “unreasonable.” And, that is what the judge did. She ruled that Starson did not deny his illness. Further, the Board had failed to consider the extent to which his illness and claimed delusions affected his ability to understand information his doctors gave him, or the consequences flowing from the treatments they proposed. And, the Board, in the final analysis, had acted not on objective evidence, but on the subjective basis of what it believed to be the “best interests” of Starson.

Two years later, in 2001, the Ontario Court of Appeal heard and handed down its unanimous decision affirming the judgment of the Superior Court:

It agreed that Starson was aware that he had “mental problems.”

There was no evidence from the doctors that any of the medications given to Starson had helped him.

More importantly, Starson’s refusal to take the proposed medications was based on the harmful effects they might have on his scientific work. Yet, the Court of Appeal acknowledged that Starson’s refusal, objectively, might well not be in his best interests.

MENTAL ILLNESS AND INCAPACITY

Suppose an individual is found to be seriously mentally ill. Does it follow that this person lacks the capacity to make decisions concerning his/her medical treatment, including that relating to mental health? As to this question, both the dissent and the majority in Starson were in agreement that the answer was no. For example, the chief justice stated: “[But] mental illness is not conflated [to be fused] with incapacity. Mental illness without more does not remove capacity and autonomy. Only where it can be shown that a person is unable to understand relevant factors and appreciate the reasonably foreseeable consequences of a decision or lack of decision can treatment be imposed.”

It also follows, the chief justice said, that merely because a mentally ill person has a fine intellect, there is not necessarily legal capacity.

A FAST-TRACK DECISION?

An important aim of the Health Care Consent Act is to speed treatment for incapable patients. This is done by putting time limits on the Consent and Capacity Board (CCB) to which Starson appealed. Within seven days of receiving an application appealing forced medication, the Board must have a hearing. And it must hand down a decision within one day from the end of that hearing. If a party asks for reasons for the Board’s decision, they must be provided with such reasons within two (business) days of the request.

There may have been required speed on the part of the CCB, and some limitation on the Superior Court in terms of the extent to which it was able to review the board’s findings. But, from the time the board and the Superior Court handed down their decisions in 1999, two years passed before the Ontario Court of Appeal decided the matter, and another two years passed before the Supreme Court handed down its decision.

BURDEN OF PROOF

Who had the burden of proof to show that Starson had the “capacity” to accept or reject medical treatment? The burden of proof is on the attending physician(s) to demonstrate that Starson is incapable, within the meaning of the law, to make the decision as to treatment. In this regard, the law presumes that Starson is capable to decide to reject or accept the proposed medical treatment. Whether this burden has been carried is determined by looking at the evidence in terms of the “balance of probabilities.”

THE SUPREME COURT DECIDES

In a 6–3 decision, the Supreme Court affirmed the judgment of the Ontario Court of Appeal. Starson was found to have the capacity to refuse the medical treatment urged by his doctors. Justice Major handed down the majority judgment and Chief Justice McLachlin spoke for the dissenting justices. We will deal first with the majority decision.

CAPACITY

The central question in Starson was whether, under the Health Care Consent Act, Starson had the capacity to decide whether to accept the medical treatments recommended by his psychiatrists. In this regard, all members of the Court emphasized that Starson’s capacity to decide could be quite different from whether he had a mental illness.

Capacity, said Justice Major for the Court majority, is defined by the HCCA: “A person is capable with respect to a treatment [or] admission to a care facility ... if the person is able to understand the information that is relevant to making a decision about the treatment, [or] admission ... as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

There are two elements to this definition, Justice Major stated:

A person must be able to understand the information relevant to making a treatment decision. This means the objective ability to “process, retain and understand the relevant information.” Justice Major found that there was “no doubt” that Starson met this condition.

A person must be able to “appreciate the reasonable foreseeable consequences” of the decision taken. This means that the patient must be able to apply the relevant information to his or her situation, and be able to weigh the foreseeable risks and benefits of the decision made. Here, the CCB had found Starson lacking.

The Board’s analysis was in two parts: (1) the benefits of treatment, and (2) the risks of non-treatment.

BENEFITS OF TREATMENT

The CCB found that Starson failed to appreciate the likely benefits of treatment which it defined as “improvement in his delusional state ... and a possible resumption of his goals in the scientific field.”

On review, the Superior Court (the lower court) said that it was one matter to accept the Board’s findings if they were supported by some evidence in the record. Here, however, the Superior Court judge ruled, there was no evidence that the proposed treatments would help Starson’s condition:

There was no evidence that the proposed medication was likely to ameliorate [help] Professor Starson’s condition. Dr. Swayze [one of Starson’s attending psychiatrists] testified that it was “unclear” whether treatment would facilitate a “normal functioning level,” and that treatment in the past had never enabled Professor Starson to function adequately. Dr. Posner [another of Starson’s psychiatrists] noted that, in general, only 60 percent of patients treated with neuroleptics [one of the proposed medications] respond favourably to new treatment.

The evidence does not suggest that Professor Starson would fall into that category. [He] stated that medication attempts “have always been the most horrible experiences of my life.” The end goal of the proposed treatment was to place Professor Starson on mood stabilizers. Both Professor Starson and Dr. Swayze confirmed that he had tried different mood stabilizers in the past. Starson testified that he had “been through all the treatment [and] it hasn’t worked.”

Furthermore, Professor Starson appreciated the intended effects of the medication: “I’ve been through these chemicals that they propose before – and I know the effects and what they want to achieve is slow down my brain, basically....” The attending physician agreed that the purpose of the medication was to slow down Professor Starson’s brain to a normal range.

[The attending physician stated:] “If by that he refers to slowing down speech, or racing thoughts, or intrusive thoughts, which would be characteristic elements in a manic episode, then that is my intention. If it is to blunt him beyond what would be put [at] a normal range of mood and thought process without psychosis, then that is my intent.”

[Starson’s] stated position on medication was that “should the individual think the medications are helping them, by all means then the individual should be on the medications.” As noted, however, his past experience led him to believe that the medication would not help him. Although Professor Starson did not believe the medication would affect his sense of reality, there was no clear evidence, as the reviewing judge [of the Ontario Superior Court] observed, with respect to the nature and extent of Professor Starson’s delusions or “as to what delusions the medication would eliminate or control.”

Most importantly, Justice Major said, the CCB failed to understand Starson’s underlying reasons, which he stated, for refusing medication. Starson did not want to be “normal,” at least as he believed that term was defined by his psychiatrists. And, it was this failure which was central to the majority decision of Justice Major, who wrote:

Professor Starson stated that the medication’s normalizing effect “would be worse than death for me, because I have always considered normal to be a term so boring it would be like death.” The evidence indicates that the dulling effects of medication transformed Professor Starson “into a struggling-to-think drunk,” a result that precluded him from pursuing scientific research. Professor Starson stated unequivocally that every drug he had previously tried had hampered his thinking. As a result, there was no basis for the Board to find that a possible benefit of treatment would be the resumption of his work as a physicist. The evidence, in fact, suggests just the opposite. It is apparent from the record that Professor Starson values his ability to work as a physicist above all other factors. It is clear that he views the cure proposed by his physicians as more damaging than his disorder.

RISKS OF NON-TREATMENT

The CCB found that Starson did not appreciate the risks that would follow from refusing the medications: His mental disorder would worsen. This, too, was a finding of fact. On the whole, the Superior Court would accept that finding if there were a reasonable basis in the record for doing so. The Superior Court ruled that there was no such basis.

It is true, the court stated, that both of Starson’s psychiatrists — Dr. Swayze and Dr. Posner — concluded that Starson’s mental condition either would continue to worsen or had already worsened beyond the point of possible treatment. But these were conclusions, said the court, without any substantial evidentiary base.

Dr. Swayze, for his part, referred to Starson’s previous hospitalizations, which he said “suggest a chronic, unremitting course.” Dr. Posner referred to medical literature which indicated that “untreated mania can and often does progress in severity.” He noted, too, that Starson had not published any academic articles in “three or four years” before the CCB hearing. And, in conversations with other psychiatrists at the institution, he concluded that Starson was relatively more irritable than in the past.

Justice Major, for the Supreme Court, stated:

Putting aside this scant evidentiary basis, Professor Starson was never asked at the hearing whether he understood the possibility that his condition could worsen without treatment. The presumption, of course, is that a patient has the ability to appreciate the consequences of a treatment decision. The onus [burden of proof] is not on Professor Starson to prove this ability.

As noted ... Professor Starson was alert to the presence of a mental condition and the need to be in hospital to treat that condition. In light of his awareness of the need for treatment, it was unreasonable for the Board to conclude, without further inquiry, that [Starson] failed to appreciate the possibility that his condition could worsen.

In summary, there was no basis to find that Professor Starson lacked awareness of his condition or that he failed to appreciate the consequences of treatment. In the absence of these findings, there was no support for the Board’s ultimate finding of incapacity. As a result, Molloy J. [of the Ontario Superior Court] correctly set aside the Board’s decision.

THE DISSENT

Chief Justice McLachlin agreed with a number of points made by the majority. Her dissent, joined by Justices Charles Gonthier and Louis LeBel, summarized the differences, as she saw them:

On the facts, my colleague Major J. and I agree that there was evidence that Professor Starson suffered from serious mental illness; that he accepted he had symptoms of mental illness which had created difficulties for him in the past and for which he was prepared to accept psychotherapy; that he did not agree with his physicians on the diagnosis of this illness; and that without the proposed medical treatment, he might continue to deteriorate. We also agree that Professor Starson did not wish to accept the proposed medication-based therapy because of the effects of previous drug therapy, in particular the fact that it dulled his intellectual functioning.

On the law, my colleague and I agree that it would be erroneous for a [Consent and Capacity] Board to find incapacity simply because the patient does not accept the doctors’ diagnosis or because treatment is in the best interests of the patient.

The central differences between my colleague [Justice Major] and me appear to be two: whether there was evidence to support the Board’s conclusion on capacity; and whether the Board erroneously applied a best interests standard.

In my respectful view, the evidence amply supports the Board’s findings of Professor Starson’s inability to understand the information relevant to treatment and to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Nor, in my view, did the Board erroneously apply a best interests standard. Rather, it remained focused on the question of capacity throughout. Given this evidence and the Board’s application of the correct legal tests, I see no basis upon which a court of judicial review can set aside its decision.

For the Court majority, Justice Major made this comment on the dissent:

I disagree with the conclusion of my colleague, McLachlin C.J. Her reasons, with respect, appear to disregard the bulk of Professor Starson’s testimony. Absent is the candid acknowledgement by him of his mental problems, his obvious appreciation of the intended purpose of the medication, the admitted uncertainty by the doctors that treatment would improve Professor Starson, the failure in the past of mood stabilizers, which was the end goal of the proposed treatment ... and his rationale for refusing the medication.

YOU BE THE JUDGE

THE CASE OF “BEST INTERESTS”

THE FACTS

Roberta Smythe, twenty-seven, a resident of Ontario, was an average undergraduate student. She received her degree in engineering, standing about midway in her class. She applied for a graduate program in engineering and was rejected. She believes that she is a genius and that she stands at the frontier of a new kind of engineering. She has no publications and no reputation, as such, within the academic or professional community.

Smythe also believes that she has been rejected for graduate study (by all five universities to which she applied) because the faculties are envious of her talent and her “vision.” On more than one occasion, she has written or emailed individual engineering faculty members threatening their lives unless they “do the right thing.” In all other respects, she appears to be a person of normal intelligence.

Because of these threats, Smythe has been arrested and charged. The judge, however, orders that she be given over to a psychiatric facility on the ground that she was not criminally responsible for the threats that she made.

Psychiatrists at the facility where she was placed agree that she suffers from a bipolar disorder (as described in the Starson case). The treatment they propose is the same as was recommended for Starson. Smythe vigorously objects. Her reason: “There is nothing wrong with me. The treatments would destroy my dream and my vision.”

The psychiatrists and the Consent and Capacity Board all agree — and there is no evidence to the contrary — that the treatments really would be in her best interests. It is on the basis of Smythe’s “best interests” that the CCB find she is not capable of determining consent to the proposed treatments.

THE ISSUE

Are the “best interests” of the patient a basis for determining whether a patient has the capacity to consent to psychiatric treatments?

POINTS TO CONSIDER

Like Starson, Smythe has not injured anyone. Still, her threats seem real.

Unlike Starson, Smythe has achieved no recognition in the academic community. But, in her view, this is because, there is a “conspiracy” against her. She sees herself as a great scientist.

It is a matter of “principle” that causes Smythe to resist the medications proposed by the psychiatrists. She really does not know what the effects of the medications might be.

Her attending psychiatrists acknowledge that Smythe is intelligent and that they have explained — and she appears to understand — the proposed treatments.

“On balance,” the psychiatrists believe the treatments will help Smythe out of her “delusions” and make her less threatening.

The recommendation of the psychiatrists and the CCB is based solely but unanimously on what they believe to be the “best interests” of Smythe. In this regard, they are supported by Smythe’s mother, father, and siblings, with whom she has had a close relationship.

DISCUSSION

The “best interests” of Smythe are not a relevant consideration. The law — that is, the HCCA — determines that it is not the right of the CCB to determine that she lacks the capacity to decide upon her own medical treatment, with the result that drugs could be forced upon her. It does not matter that there is unanimity for such forced medication on the part of Smythe’s psychiatrists, her family, and the Board. The Supreme Court of Canada made this clear in the Starson case.

The Consent and Capacity Board, said Justice Major for the Court’s majority in Starson, improperly focused on what it believed to be in the “best interests” of Starson. And that was not its duty under the law. Rather, the law required the Board to ask only this question: Did Starson have the capacity to decide upon his medical treatment? One’s best interests are not, as such, related to capacity to decide.

For the Court majority, Justice Major wrote:

In my view, the Board’s reasons ... appear to be overly influenced by its conviction that medication was in Professor Starson’s best interests. The Board arrived at its conclusion by failing to focus on the overriding consideration in this appeal, that is, whether that adult patient had the mental capacity to choose whether to accept or reject the medication prescribed. The enforced injection of mind-altering drugs against [Starson’s] will is highly offensive to his dignity and autonomy, and is to be avoided unless it is demonstrated that he lacked the capacity to make his own decision....

As a result of its focus on [Starson’s] best interests, the Board disregarded clear evidence of his capacity. Professor Starson acknowledged that he suffered from a mental condition, and appreciated the purpose of the proposed medication and the possible benefits suggested by the doctors. He had tried other treatments in the past to no avail. The evidence did not suggest that enforced treatment was likely to improve his condition.

Professor Starson preferred his altered state to what he viewed as the boredom of normalcy. His primary reason for refusing medication was its dulling effect on his thinking, which prevented his work as a physicist. Although the Board found that he failed to appreciate the possibility that his condition could worsen, [Starson] was never asked about this. Given that he acknowledged the negative impacts of his illness and the need for treatment, it was unreasonable to conclude without further inquiry that he was unable to appreciate that possibility.

THE DISSENT IN STARSON

Three members of the Supreme Court, including the chief justice, as noted, dissented in the Starson case. However, the chief justice, who wrote the dissent, suggested that her differences with the majority were not based on any “best interests” test. She said that the Consent and Capacity Board acted on one consideration only: a finding that Starson lacked the capacity required by the HCCA to come to judgment as to his medical needs. She stated:

Nothing in the Board’s reasons suggests that it strayed from the question before it — Professor Starson’s capacity to make medical decisions on his own behalf. The Board addressed the inquiry at the outset as one involving the criteria “required for an individual to be capable with respect to treatment” and then proceeded to inquire into “capacity.” The key to capacity in this case, as discussed, was Professor Starson’s ability to appreciate the disorder, its consequences, and possible treatments....

It is ... clear that the Board was concerned with capacity throughout and that its conclusion was driven by evidence relevant to capacity and that alone. Not once does the Board refer to the best interests of the patient.

As a preliminary matter, before entering into its analysis, the Board stated that it viewed Professor Starson’s current situation with “great sadness” and stated that “unfortunately, his potential has been disrupted time and time again by admission to psychiatric facilities.” But the Board expressly recognized that this was preliminary to analysis as to capacity, not part of that analysis. It began this brief passage with the words: “Before commenting with respect to the specific criteria required for an individual to be capable....” With the greatest of deference, this preliminary comment cannot be elevated to the error of deciding the case on the basis of best interests instead of capacity.

CHALLENGE QUESTION

THE “STANDARD FOR REVIEW”

Was the reviewing court bound to accept the Consent and Capacity Board’s conclusion as to Starson’s capacity to appreciate the consequences of his decision so long as there was a reasonable basis for doing so?

The Consent and Capacity Board made a number of findings that brought it to the conclusion that, within the meaning of the HCCA, Starson did not have the capacity to decide on his medical treatment. As noted, those findings were reversed by the Ontario Superior Court, whose judgment was affirmed both by the Ontario Court of Appeal and the Supreme Court of Canada. All three courts agreed that findings of fact relating to Starson made by the Board were to be accepted by the courts on review — so long as they had a reasonable basis.

One of the findings that led the board to the conclusion that Starson lacked the necessary capacity was that, under the HCCA, he was not able to appreciate the reasonably foreseeable consequences of his decision not to take the treatments.

Justice Major, for the Court majority, said the issue was one of law, not fact. The question went to the meaning of that provision of the HCCA: able to appreciate the reasonably foreseeable consequences of a decision. It was for the court alone to determine that meaning. On matters of law, consent boards must yield to the courts.

For the courts to do otherwise, said Justice Major, could well result in different interpretations by different consent boards. There ought to be consistency in application.

How, then, should the provision have been interpreted? Justice Major said the question the board should have asked was why Starson lacked the ability to decide. Justice Major stated:

The interpretation of the legal standard for capacity is a question of law.... No deference [acceptance, as such] is owed to the Board on this issue. [T]he broad statutory right of appeal and adjudicative nature of the proceedings militate against deference. Furthermore, courts clearly have relative expertise on general questions of statutory interpretation.

One of the stated purposes of the Act is to provide for the consistent application of its rules. Consistency requires courts to ensure that individual panels do not diverge in their interpretation of statutory provisions. Finally, this question of law has broad application and need not be resolved anew on each appeal. A correctness standard of review on this issue will not impede the expeditious [prompt] treatment of patients.

The Board found that Professor Starson failed to appreciate the risks and benefits of treatment, but neglected to address whether the reasons for that failure demonstrated an inability to appreciate those risks and benefits.

A patient’s failure to recognize consequences does not necessarily reflect an inability to appreciate consequences. It is critical that the Board determine whether the reasons for a patient’s failure to appreciate consequences demonstrate that the patient is unable, as result of his condition, to appreciate those consequences. In this case, the Board stated that the patient failed to appreciate the consequences of treatment with regard to future dispositions....

However, neither of the psychiatrists who testified had discussed any of these possible consequences with the patient. Professor Starson’s perceived failure in this regard might have simply reflected the psychiatrists’ failure to inform him of the potential consequences.

THE U.S.A. — A DIFFERENT APPROACH?

In a context different from that of Canada, but with Constitutional guarantees similar to those of the Charter of Rights and Freedoms, the U.S. Supreme Court dealt with the question as to whether a mentally ill defendant can be forcibly medicated in order to stand trial. In a 6–3 decision, the Court ruled that, subject to strict restraints, this could be done. The case was that of Charles Thomas Sell v. United States, decided June 16, 2003.

There are some obvious similarities with those facts relating to Starson. Sell, a dentist who was well-educated, suffered from delusions. Though he had threatened others, including FBI agents, he had a non-violent history (as did Starson) — at least as was found by the trial court.

In 1997 Sell was charged with submitting false insurance claims to the U.S. federal government (Medicaid). The court found that he was not competent to stand trial. In 1999 the court committed him to a mental institution for treatment that, if possible, would permit trial.

His attending psychiatrists proposed mood-affecting medications (anti-psychotic drugs) but, as with Starson, Sell strongly objected. His reasons were different from those of Starson. Sell believed that a conspiracy had been mounted against him by the federal government, including the FBI. Starson, it will be recalled, believed that anti-psychotic drugs, which had been tried on him earlier, had dulled his brain and, if given to him again (even though they were of a different kind), would deny him the capacity to function as a scientist.

The issue in Starson was whether, having been found not criminally responsible (NCR) for threatening the lives of several persons and then placed in a mental institution, he could, as part of his treatment, be forcibly medicated. The issue in Sell was whether the defendant, mentally ill, could be forcibly medicated for the purpose of standing trial for the charges made against him.

THE U.S. CONSTITUTION APPLIED

Applied to both federal and state action in the United States, one’s liberty is protected by the due process provisions of the U.S. Constitution. In Canada, life, liberty, and the security of the person are guaranteed by section 7 of the Charter of Rights and Freedoms, part of the Constitution of Canada.

This is how Justice Stephen Breyer, speaking for the U.S. Supreme Court majority in Sell, summarized the balance struck by the Court in reconciling the rights of the individual with the need to protect the public and allow for a fair trial (which is included within the protective circle of due process). He stated:

[The U.S.] Constitution permits the Government involuntarily to administer anti-psychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.

The standards required by the Court before medications can be forced on a defendant are difficult for the government to meet. Justice Breyer said that the instances when the government will meet such standards likely will be “rare.” He wrote of the standards:

First, a court must find that important governmental interests are at stake. The Government’s interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property. In both instances, the Government seeks to protect through application of the criminal law the basic human need for security....

Second, the court must conclude that involuntary medication will significantly further those ... state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.

Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results [such as non-drug therapies, like — as with Starson — psychotherapy], and the possible use of court orders backed by its contempt power to order certain action on the part of the defendant....

Fourth, as we have said, the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition. The specific kinds of drugs at issue may matter here as elsewhere. Different kinds of anti-psychotic drugs may produce different side effects and enjoy different levels of success.

We emphasize that the court applying these standards is seeking to determine whether involuntary administration of drugs is necessary significantly to further a particular governmental interest, namely, the interest in rendering the defendant competent to stand trial.

THE FUTURE FOR DR. SELL?

The U.S. Supreme Court ruled that the government had not justified forcing anti-psychotic medications on Sell. However, the ruling does not prohibit the U.S. government from attempting to meet the standards required by the Court for forcing such medications.

What is the likelihood that the government will satisfy the standards imposed by the U.S. Supreme Court? The government probably will not be able to satisfy at least one important test: The government may not be able to prove that it has a real interest in bringing Sell to trial. The reason: A defendant ordinarily receives credit toward a sentence for time already served. In the case of Sell, he was confined by the mental institution for more than four years — a time well beyond that to which he would have been sentenced.

Justice Breyer expanded on the connection between the government’s interest and that of the individual as to the standards ordered:

Courts, however, must consider the facts of the individual case in evaluating the Government’s interest in prosecution. Special circumstances may lessen the importance of that interest. The defendant’s failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for the mentally ill — and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime.

We do not mean to suggest that civil commitment is a substitute for a criminal trial. The Government has a substantial interest in timely prosecution. And it may be difficult or impossible to try a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost. The potential for future confinement affects, but does not totally undermine, the strength of the need for prosecution. The same is true of the possibility that the defendant has already been confined for a significant amount of time (for which he would receive credit toward any sentence ultimately imposed). Moreover, the Government has a [corresponding] constitutionally essential interest in assuring that the defendant’s trial is a fair one.

CIVIL REMEDY: ANOTHER APPROACH

The Starson case involved government action to have an individual, then held in a mental institution as not criminally responsible (NCR) for alleged violations of the Criminal Code, forced to take anti-psychotic drugs, ostensibly to help control a bipolar disorder. Unlike the Sell case in the United States, the action proposed for Starson was not to help make him competent to stand trial.

The court in Starson was not asked — and thus it did not offer — any opinion as to whether Starson was in the kind of condition that would permit, on proper application, the appointment of a guardian to act on his behalf. Such an appointment would come outside the Criminal Code. Yet, even here, the basic finding that Starson did not wish to have the drugs proposed would have had the effect — to the extent that desire was expressed at a point when Starson was fully competent.

YOU BE THE JUDGE

THE CASE OF FORCED CONFINEMENT

The case that follows was decided by the Supreme Court of Canada on the same day as Starson. You will see that it does not involve forced medication. It does, however, relate to action by the Crown to forcibly control over a period of years an individual found to be, as was Starson, not criminally responsible.

THE FACTS

Terry Steven Owen had a long history of conflict with the criminal law. Before 1978, his record included offences for breaking and entering, obstructing a police officer, trafficking in narcotics, possession of narcotics, and possession of stolen property. But it was in 1978 that Owen was brought into contact with another custodial force of society: the mental health system. It was a contact that continued to apply at least through 2003.

On October 10, 1978, Owen was found not guilty, by reason of a mental disorder, of a charge of second degree murder. It was determined that he had been in a psychotic state induced by drug abuse. Owen was found not criminally responsible (NCR) for the murder.

The circumstances of the murder (called the “index offence”) were as follows. Owen had been living with a young man from Chatham, Ontario, for about three months. He only remembered being “paranoid” for “some weeks prior to the offence and that he had this song in his head.”

The night before the murder, Owen ate an apple spiked with MDA, a hallucinogenic drug. He said he became frightened. He believed that his friend had helped to murder his grandfather (who, in fact, had died from natural causes sometime earlier). He began to hit his friend with a stick. Police arrived and Owen was arrested and charged with murder.

For Owen, there followed periods of detention in various mental health care institutions. However, he was gradually released into the community until 1987, when he was arrested on charges of possession of a prohibited weapon, break and enter with intent to commit an indictable offence, and possession of property obtained by crime. On June 15, 1988, he was convicted of all three charges.

After completing his sentence, Owen was returned to a psychiatric hospital. In 1989 he got into a disagreement with the staff about hospital privileges. He lost his self-control and punched a car door so hard that he broke bones in his hand, requiring a cast. He was reported to have said: “It was either the door or Brad’s jaw. Man, I had to hit something.”

In 1990, while living in the community, Owen fractured a man’s jaw with a pool cue during an argument while under the influence of alcohol. He was convicted of assault causing bodily harm and was sentenced to fourteen months in prison, which he served before returning to the psychiatric hospital.

The facility continued to gradually release Owen into the general community, but the problems with substance abuse as well as violent outbursts did not end.

A 1992 risk assessment conducted by the Ontario Ministry of Health placed Owen in a category of violent offenders for which it was predicted that 44 percent would re-offend violently within seven years after release. The psychiatric hospital said of him:

[Owen’s] prognosis continued to be extremely guarded given his lack of insight into his situation, his lack of regard for other persons, and his intolerance of the system. It was predicted that a circumstantial situation will likely compromise his liberty at an early stage in community living. [Owen] has a history of repeated offences, including unprovoked violence, indulgence in drugs and alcohol, and a cavalier attitude, making him a serious risk to the community.

Still, from 1994 to 1996, Owen received from the Ontario Review Board (which had the statutory power) “conditional discharges,” subject to ongoing drug tests from the psychiatric hospital. The tests were designed to ensure that he did not use drugs.

In 1997, however, Owen’s urine tested positive for cannabis. The hospital informed the Board that it could no longer support Owen’s conditional discharge because of his continued substance abuse and the hospital’s need for flexibility “to react quickly to known increases in risk.” The hospital stated:

When the hospital is unable to require either hospital admission or significant changes in supervision [as a result of Owen’s conditional discharge], the community is placed at risk. The community would fail to appreciate why it is that [the hospital] is unable to react quickly to known increases in risk. This situation is very likely to occur time and time again in the future. The role of the hospital should be to ensure that it is managed in a timely manner, consistent with the long-term rehabilitation needs of [Owen] and not contrary to the safety of the public. The hospital sees no useful purpose in a several month hospitalization every time this happens while [Owen] awaits the pleasure of the Board. Indeed the results of the current administrative arrangement [a conditional release] are contrary to the rehabilitation needs of [Owen] and do nothing to protect the public....

Nevertheless, for three years, from 1997 to 1999, the Ontario Review Board allowed Owen to live in Kingston, Ontario, but to be “detained” by the psychiatric hospital. As in the past, the conditions were that he continue to be tested and abstain from drugs. (The testing was to be done at the psychiatric hospital.)

In 1999 the hospital “team” reported: “[Owen] continues to represent a risk to the safety of the public.” The next year, the hospital, on closely monitored tests, detected Owen’s continued use of cocaine. The hospital was told —and Owen later admitted — that he had “faked” a number of drug tests, and that he had been using drugs, except for an eighteen-month period before the birth of his son (to whom the Court stated he was “devoted”). Indeed, Owen indicated that he had no intention of abandoning his use of drugs.

The Board, following a full hearing, found that Owen continued to be a significant danger to the safety of the public. It ordered his continued detention at the psychiatric hospital (a medium security facility). This meant, among other things, that Owen could not live in the community. Nor could he visit in the community without attendants from the hospital.

THE ISSUE

Does Owen, having been found not criminally responsible for a murder in 1978, have an absolute right to discharge from the psychiatric hospital? In effect, did Owen have the right to go free in 2003?

POINTS TO CONSIDER

Under the Criminal Code (sections 16(1) and 672.34), a person found not criminally responsible (NCR) for what has been charged is not acquitted. Rather, that person is judged not to have known the “nature or quality” of the act resulting in the crime.

There is no presumption that an NCR individual is a danger to the safety of the public.

If, however, a court or review board finds that an NCR individual does pose a significant risk to public safety, then it might enter an order restraining that person.

Under section 672.54 of the Criminal Code, the order, called a disposition, must be the “least onerous and least restrictive to the accused” consistent with the level of risk posed. Such an order can range from detention “in a hospital” to discharge “subject to such conditions as the court or review board considers appropriate.”

It is central to the constitutionality of the NCR provisions that the individual not be considered punished, but rather that the conditions imposed on him are for the protection of the public. Owen has argued that he is being punished for his drug habit and his failure to cooperate with hospital authorities from 1978 to 2000 (e.g., drug testing).

The decision of the Ontario Review Board is subject to appeal to the courts. But, the courts must accept the Board’s decision so long as it appears to be reasonable, and the hearings before the Board were conducted fairly. In the case of Owen, the Ontario Court of Appeal overturned the judgment of the Board on the ground that it was unreasonable: He was being held because of his drug habit, not because of his mental condition. And, he was not a significant risk to the public.

At least once each year, the Board must examine and decide upon its existing order. In addition, it may — on the request, for example, of Owen — review its order at any time. The Board must be satisfied that there is reasonable evidence for continuing to detain the NCR individual. Otherwise, it must unconditionally release him/her.

There is no fixed term for confinement of an NCR person. He/she might be held in the mental institution far longer (even for life) than the Criminal Code would impose for punishment.

DISCUSSION

The case The Queen v. Terry Steven Owen was decided June 6, 2003. In an 8–1 decision, with Justice Ian Binnie speaking for the majority and Justice Louise Arbour dissenting, the Supreme Court of Canada ruled that the Ontario Review Board decision should be upheld and the Ontario Court of Appeal judgment reversed.

In large part, Justice Binnie said, the Board had been set up by statute to give expert opinion. So long as that opinion, based on the facts, was reasonable, and a fair hearing had been granted, then there was no basis for the Ontario Court of Appeal to reverse the Board decision.

The facts, said Justice Binnie, justified the Board’s actions: Owen had murdered in 1978 because of the use of drugs. They caused him to lose control. He was found by the trial court to not be criminally responsible for the death of his friend. The underlying cause of Owen’s actions — the use of drugs and alcohol — did not end in 1978. Rather, they continued, unknown to the medical staff of the psychiatric hospital. They continued because Owen faked the tests the hospital had imposed as part of the terms of his conditional releases ordered by the Ontario Review Board. And, during that period, on a number of occasions, Owen was involved in acts or threats of violence against others. Indeed, in one instance he served a prison sentence of fourteen months for such an assault.

From the viewpoint of the hospital staff, communicated to the Board, Owen remained a significant danger to the community (as well as to himself). There was no way to control his drug habit — which set in motion his irrational behaviour — other than by direct control, and this meant his continued detention. This was the least onerous way — at the present time — to protect the public.

THE STANDARD OF REASONABLENESS APPLIED

Justice Binnie, for the Court, stated:

Having thus affirmed as reasonable the Board’s conclusion that [Owen] continues to be a significant threat to the safety of the public, I turn to the issue ... [of] whether the Board’s ... order is the least onerous and least restrictive for [Owen] consistent with the assurance of public safety. In considering its order, the Board must again have regard to the need to protect the public from dangerous persons, the mental condition of the [NCR] accused, the reintegration of the [NCR] accused into society, and the other needs of the [NCR] accused.

As mentioned, from 1994 to 1996, [Owen] was granted conditional discharge orders. This was changed in 1997 because of drug use. A detention order with leave conditions was substituted. That detention order was continued in 1998 and 1999. In 2000, the “leave conditions” were made more restrictive because of the discovery, on January 25, 2000, that [Owen] was on cocaine. At that point, in making its recommendation, the hospital staff told the Board that: “In the presence of close supervision, [Owen] consumed illicit substances. In the absence of direct supervision at all times, the hospital is not confident in its ability to prevent [Owen] from engaging in these risky behaviours [emphasis added].”

Accordingly, in [the hospital’s] view, given the link it had made between [Owen’s] propensity for violence and the use of cocaine, the hospital detention order with restricted leave conditions represented “the least onerous and restrictive, in keeping with the need to protect the safety of the public.”

The success or failure of an NCR detainee to follow a treatment program was noted as a relevant factor [for the Board to consider].

The Board was clearly sympathetic to [Owen’s] desire to be reunited with his son and his evident level of frustration at his continued detention. The critical factor that tilted the Board against a less restrictive order was [Owen’s] renewed (or rediscovered) taking of cocaine, and its pharmacological link to the amphetamines that triggered the 1978 murder. This discovery led the hospital authorities to recommend against a conditional release....

DIRECT CONTROL: THE LEAST RESTRICTIVE

Justice Binnie continued:

The Board agreed with the hospital that there was little prospect of [Owen’s] drug habit being effectively controlled with the sort of sporadic supervision available in the community. The Board recognized the ease with which [Owen] had deceived its drug monitoring program in the past. In light of the connection between [Owen’s] violence and the newly discovered cocaine abuse, the Board concluded:

“It is unfortunate that [Owen] has chosen to retard his progress toward rehabilitation and thwart the efforts of his caregivers to return him to society. We note that as recently as August of 1999, the treatment team were prepared to support his transfer to the Chatham area, which remains [Owen’s] desired relocation. [Owen] by his conduct is the agent of his own misfortune, albeit he is unlikely to recognize or appreciate his role in what he will undoubtedly determine to be punishment by the Review Board and the hospital.”

I do not think it unreasonable for the Board to conclude, in light of the difficulty in monitoring the cocaine problem in the community, that the “least onerous and least restrictive” order for the time being was a detention order in [the psychiatric hospital].

[Owen’s] case is not an easy one, but once we affirm as reasonable the Board’s finding that [Owen] represents a “significant threat to the safety of the public,” we should not be too quick to overturn the Board’s expert opinion about how that risk is to be managed....

HOPE FOR OWEN?

Owen’s case came before the Supreme Court of Canada three years after the Ontario Review Board’s last detention order was issued. And, the fact is that as an NCR, as noted, he could be subject to ongoing detention for the rest of his life — so long as he continued his drug habit, and so long as the Board believed that that drug habit was connected with his violent behaviour.

Justice Binnie seemed to hold out hope for Owen (and other NCRs). That hope came in the form of guaranteed annual review by the Board. It is a review in which the Crown must prove that the NCR continues to be a significant threat to the community and that the least restrictive way to contain that threat, bearing in mind as well the interests of the individual, is through ongoing detention.

Owen, however, offered the Court another solution. He proposed that if he continued to use prohibited drugs, then why not let the criminal process treat him “like anyone else”? Lay charges and, if he is found guilty, impose an appropriate sentence.

The answer given by Justice Binnie, for the Court, is that an NCR is not like anyone else. He or she is subject to special treatment under Part XX.1 of the Criminal Code.

THE DISSENT OF JUSTICE ARBOUR

Justice Arbour did not question Owen’s use of drugs. Nor did she question his violent actions. What she did question, among other things, was whether in the first instance — in the period following the 1978 murder — he continued to be subject to mental illness. His illness, at least as described by the psychiatric hospital, was anti-social behaviour. She stated:

[Owen] has been and may continue to be in conflict with the law. He has been and most likely would continue to be answerable to the criminal justice system for such behaviour. He has committed a most serious offence for which he was held not criminally responsible as a result of his mental condition at the time.

The question now is whether his mental condition and the threat he may pose to the public are such as to require his continued handling by the special stream created by Part XX.1 of the Criminal Code, which places emphasis on “achieving the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately.”

The Board did find that Mr. Owen suffers from a “serious antisocial personality disorder”.... While each of these personality attributes is clearly undesirable, the syndrome is not itself a mental illness but rather an assortment of symptoms which reflect poor adjustment to society.... In my view, both the hospital officials and the members of the Board were unduly influenced by the recent discovery that Mr. Owen had regularly cheated on his drug and alcohol tests in the past. It had always been known that [he] was likely to be engaging in substance abuse. To restrict [Owen’s] freedom severely after finding that he had deceived the hospital indicates that at its root the disposition was punitive in purpose. I agree with the Court of Appeal that the Board’s assessment of the risk posed by [Owen] was entirely speculative and not supported by a proper appreciation of the record.

The present case raises the issue of the extent and limits of the “special stream” designed for mentally ill people. It is not a special stream that permits the perpetual detention of regular delinquents who have once committed a crime while suffering from a mental disorder. The commission of an “index offence” [the 1978 murder by Owen] does place an individual within the NCR system, but there is no indication in the statutory scheme that the differential treatment of NCR accused and members of the general population is meant to be indefinite — in fact, the opposite is clearly the case. [A past Court decision] establishes that the threshold determination for taking an individual out of the NCR system is the determination of significant threat to the community. That threat has to be assessed in light of several factors, including the mental condition of the accused....

[Owen] had been in the NCR system for 22 years and had been the subject of 24 disposition or warrant orders when the Board rendered the decision under appeal. He did live in the community under different forms of supervision for extended periods of time commencing in 1986, and he resided full-time in the community from 1994 until this disposition was taken.

Under this March 2000 disposition, [Owen] was ordered detained in hospital without entry into the community except under escort. This was the most restrictive disposition imposed upon him since 1990, after his conviction for assault, and, apart from that one, the most restrictive since 1982. The Board ordered detention in hospital with only compassionate leave and staff-accompanied entry into the community. It gave no reason for its conclusion that this most restrictive disposition was “the least onerous and least restrictive” one. In my view this disposition constituted an error of law and was not reasonable.

Even on the assumption that [Owen] constituted a sufficient threat to the community to preclude his absolute discharge, the Board was required to embark on an evaluation of all four of the factors outlined in §672.54 — the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused — in order to determine whether a conditional discharge or a custodial order was the appropriate disposition.

This could not adequately be done without considering that [Owen] had lived in the community since 1994, that no violent incident occurred in a period of close to 10 years, [Owen’s] desire to be reunited with his son, and the fact that despite his failure to abstain from substance abuse he had nonetheless made some successful efforts in recent years to manage various stressors in his life. In my view, on the facts of this case, it was unreasonable for the Board to conclude that the custodial disposition imposed was the least onerous disposition available in the circumstances in that it accorded the respondent “as much liberty as is compatible with public safety.”

REFERENCES AND FURTHER READING

* Cited by the Supreme Court of Canada.

Bailey, Sue. “Physics Genius Cannot Be Forcibly Medicated for Mental Illness: SCOC.” Canadian Press, June 6, 2003.

Berg, Jessica et al. Informed Consent: Legal Theory and Clinical Practice, 2nd ed. Oxford University Press, 2001.*

Greenhouse, Linda. “[U.S.] Supreme Court Limits Forced Medication of Some for Trial.” New York Times, June 17, 2003.

Hoffman, Brian F. The Law of Consent to Treatment in Ontario, 2nd ed. Butterworths, Toronto, 1997.*

Macklin, Ruth. “Some Problems in Gaining Informed Consent from Psychiatric Patients.” Emory Law Journal 345 (1982): 31.*

Makin, Kirk. “High Court Supports Mentally-ill Physicist.” Globe and Mail, June 7, 2003.

“Mentally Ill ‘Genius’ Can Refuse Drugs, Court Says.” Toronto Star, June 6, 2003.

Roth, Loren H., Alan Meisel, and Charles W. Lidz. “Tests of Competency to Consent to Treatment.” American Journal of Psychiatry 279 (1997): 134.*

Tyler, Tracey. “Bright Mind, No Bright Future.” Toronto Star, June 7, 2003.

Weisstub, David N. Enquiry on Mental Competency: Final Report. Toronto: Queen’s Printer for Ontario 1990.*

Wente, Margaret. “The Case of the Crazy Professor.” Globe and Mail, June 10, 2003.

Chapter 3

Mercy Killing: A Defence To Murder?

Can “mercy” killing ever be a defence to a charge of murder? In a strictly legal sense, the answer must be no. However, there is a process that may bend the outcome: a trial before a jury that alone has the power to find on the facts that the accused is guilty or innocent, and a judge who alone has the power to sentence and, in doing so, may exercise a measure of discretion.

Among the questions raised in this chapter are:

May the defence bring to a jury the facts that “forced” the accused to mercy killing?

To what extent, if any, may a jury consider those facts in coming to its verdict?

May those facts be used by a judge to “temper” a sentence?

These questions were explored in a case decided by the Supreme Court of Canada on June 14, 2001 (Latimer v. The Queen [2001] 1 Supreme Court of Canada Reports 3).

Robert Latimer, a Saskatchewan farmer, intentionally ended the life of his twelve-year-old daughter, Tracy, who had suffered from a severe form of cerebral palsy since birth. To many, Latimer’s action was mercy killing by a concerned and conflicted parent. To others, his action was murder.

The Crown prosecuted Latimer on the charge of murder in the first degree. A jury found him guilty of the lesser offence of murder in the second degree. The Criminal Code required (a) that Latimer be given a life sentence with a minimum term in prison of ten years, and (b) that he not be eligible for parole (release) during that time.

In fact, Latimer was tried twice and he was found guilty of second degree murder each time. The first conviction brought a life sentence with a minimum term of ten years in prison without the opportunity for parole. However, this conviction was thrown out because the Crown had interfered with the jury selection process.

On appeal, the Supreme Court of Canada ordered a new trial. It is that new trial and the resulting sentence on conviction that will be set out here.

These are among the issues explored in the case:

Did Latimer have the right to present to the jury a defence of “necessity” when the judge believed that there was no real basis for the claim?

Did the jury have a right to recommend what it believed to be a fair sentence even though the Criminal Code, as enacted by Parliament, set the minimum required sentence (ten years)?

Based on the facts, is the required minimum sentence of life in prison for ten years without the possibility of parole “cruel and unusual punishment” within the meaning of the Canadian Charter of Rights and Freedoms and thus open for modification? That is, does a trial judge have the right to change a sentence otherwise required by statute in order to make it comply with the Charter?

May a jury, in effect, “nullify” what would otherwise be a conviction required by law? May a jury consciously put the law to the side and do what it believes to be just?

Is it possible for a sentence to be set aside once it has been lawfully imposed by a court?

We will begin with a detailed description of the facts of the case. We will set out the extent of Tracy Latimer’s illness, how she responded to treatment, and how her father cared for but finally killed his daughter. Then, we will move to the issues raised before the Supreme Court of Canada, and how the Court responded to them.

TRACY LATIMER’S ILLNESS, TREATMENT, AND DEATH

The description of Tracy Latimer’s illness, treatment, and death that follows was given by the Court. Tracy, as noted, had suffered from a severe form of cerebral palsy since birth. She was quadriplegic and, as such, was unable to use either her arms or her legs. She was bedridden for much of the time. Her condition was permanent, caused by neurological damage. She had the mental capacity of a four-month-old baby, though she could — and did — communicate with others through facial expressions, laughter, and crying.

The Court stated: “Tracy enjoyed music, bonfires, being with her family, and the circus. She liked to play music on a radio, which she could use with a special button. Tracy could apparently recognize family members and she would express joy at seeing them. Tracy also loved being rocked gently by her parents.”

Tracy was completely dependent on others for her care, in which family members, including her father, were involved. She had frequent seizures — five to six each day (in the nature of epilepsy). And, said the Court, it was thought that she experienced a great deal of pain, which could not be relieved by medication because that would conflict with her anti-epileptic medication. She had to be spoon-fed, and her lack of nutrients caused weight loss.

There was evidence that Tracy could have been fed with a feeding tube inserted into her stomach, an option that would have improved her nutrition and health, and might also have allowed for pain medication to be administered. But the Latimers rejected the feeding tube option as being intrusive. They saw it as representing the first step on a path to preserving Tracy’s life “artificially.”

TREATMENT: SURGERIES AND PAIN

There was no doubt in the Court’s view that Tracy had a serious disability, but she was not terminally ill. Her life was not in its final stages. In the view of her doctors, there were other treatments, including surgical procedures, required in part to ease her difficulty breathing.

Tracy had already undergone several surgeries in her short lifetime. In 1990, surgery was used to balance the muscles around her pelvis. In 1992, it was used to reduce the abnormal curvature in her back.

The Court stated: “Like the majority of totally involved, quadriparetic children with cerebral palsy, Tracy had developed scoliosis, an abnormal curvature and rotation in the back, necessitating surgery to implant metal rods to support her spine. While it was a successful procedure, further problems developed in Tracy’s right hip: It became dislocated and caused her considerable pain.”

Tracy was scheduled to undergo further surgery on November 19, 1993. This was to deal with her dislocated hip and, it was hoped, to lessen her constant pain. The procedure involved removing her upper thigh bone, which would leave her lower leg loose without any connecting bone. (Her leg would be held in place only by muscle and tissue). The anticipated recovery period for this surgery was one year.

The Latimers were told that this procedure would cause pain, and the doctors involved said that further surgery would be required to relieve the pain coming from various joints in Tracy’s body. This surgery was seen by the Latimers as “mutilation.” Robert Latimer concluded that his daughter’s life was not “worth living.”

TRACY’S DEATH

In the weeks leading up to Tracy’s death in October 1993, the Latimers looked into the possibility of placing her in a group home in nearby North Battleford. She had lived there between July and October of that year while her mother was pregnant. The Latimers went so far as to apply to place Tracy in the home. Later, however, they changed their minds.

On October 12, 1993, after learning that Tracy’s doctors wished to perform the additional surgery, Robert Latimer decided to end his daughter’s life. On Sunday, October 24, 1993, while his wife and Tracy’s siblings were at church, Robert Latimer carried Tracy to his pickup truck, seated her in the cab, inserted a hose from the truck’s exhaust pipe into the cab, and turned on the engine. She died from the carbon monoxide.

The police conducted an autopsy and discovered carbon monoxide in her blood. Robert Latimer at first maintained that Tracy simply passed away in her sleep. He later confessed to having taken her life, gave a statement to the investigating police, and partially re-enacted his actions on videotape. Latimer also told police that he had considered giving Tracy an overdose of Valium, or “shooting her in the head.”

The Crown charged Latimer with first degree murder.

ROBERT LATIMER’S SECOND TRIAL

In the face of Latimer’s confession and the facts surrounding Tracy’s death, these questions were raised by his defence:

What legal defence could Latimer have to the charge of first degree murder?

How could a jury return a verdict of “not guilty”?

On what basis could a jury or a trial judge, on a finding of guilt, impose a lighter sentence than that ordered by statute?

The answers in large part rested in an apparent three-part strategy by the defence:

to give a jury a “legal” basis to acquit Latimer;

to convince the jury that, regardless of the law, Latimer should be excused on the facts; and

if that failed, then, regardless of the minimum term set out by the Criminal Code, Latimer should be given a “light” sentence, not the ten-year imprisonment meted out to violent offenders.

(The defence seemed to be relying on a sympathetic jury composed of people who lived in the same area as Latimer.)

We shall consider each point, and set out the trial court’s rulings, as well as those of the appeal court and the Supreme Court of Canada.

RULINGS OF THE TRIAL AND APPELLATE COURT

The “defence” urged by Latimer was that of necessity. That is, Tracy, who was in great pain, should not have had to undergo the additional medical treatments. For her, there was no other recourse than to have her life ended by her father.

The defence brought out these facts in the trial. In closing arguments, the defence asked the trial court judge to rule that the jury could consider the defence of necessity. The judge refused to give a ruling at that time. But, at the end of closing arguments, the judge ruled that the defence was not available to Latimer. That is, the judge stated, the law in no way could be read as allowing the defence argued by Latimer and, as such, it could not be considered by the jury.

Next, the jury asked the trial judge if they could have any input into the sentence should they find him guilty. The trial judge replied that the jury’s job was to determine the guilt or innocence of Latimer. After this was done, said the judge, there might be room for a jury recommendation as to sentence. The trial judge stated:

The penalty in any of these charges is not the concern of the jury. Your concern is, as I said, the guilt or innocence of the accused, you must reach — that’s your job, you reach that conclusion, and don’t concern yourself with what the penalty might be. We say that because we don’t want you to be influenced one way or the other with what that penalty is. So it may be that later on, once you have reached a verdict, you — we will have some discussions about that, but not at this stage of the game. You must just carry on and answer the question that was put to you, okay.

What the judge did not tell the jury was that the statute under which Latimer was tried required, on a finding of guilt, a minimum sentence of imprisonment of ten years. If the trial judge had told this to the jury, then there might have been the possibility of nullification. That is, said the defence, the jury might have opted to ignore the law and acquit Latimer.

The jury found Latimer guilty of second degree murder. It was then that the judge told the jury of the required minimum sentence. In law, the only recommendation the jury could make upon which the trial judge could act was whether to increase the minimum sentence (up to a maximum of twenty-five years). However, the judge did permit the jury to suggest a sentence. And, the jury suggested one year imprisonment before the eligibility of parole.

The judge then handed down his sentence. Because, in his view, a ten-year sentence would have violated Latimer’s Charter right against cruel and unusual punishment, he ordered a sentence of one year in prison and one year probation with Latimer confined to his farm.

There was an appeal to the Saskatchewan Court of Appeal. That court affirmed the conviction. Then, however, it rejected the trial court’s sentence. It ordered instead that Latimer serve the minimum ten-year sentence of imprisonment, without the possibility of parole during that time.

TIMING

Latimer asked the trial judge to rule that the defence of necessity was available after all the evidence had been submitted and just before closing arguments. Defence counsel said that he had two versions for closing arguments: (1) if the defence were allowed, or (2) if the defence were refused.

The trial judge said he would rule on the defence after closing arguments had been made. However, it should be noted that the defence, in closing arguments, certainly referred to the evidence which would have gone into the defence of necessity — if it had been allowed.

THE SUPREME COURT OF CANADA DECIDES

The issues raised before the trial court and the court of appeal were presented to the Supreme Court of Canada.

There are nine members on the Court. Ordinarily, the opinion of the Court — whether it is a majority opinion or even a unanimous decision — is announced by one of the justices. His/her name is attached to the opinion. However, in the Latimer case, the opinion was announced as that of “the Court.” No individual justice’s name was attached to the opinion. The significance: By setting this as the opinion of the Court, its reasoning and conclusions take on a more forceful meaning.

There were three major parts in the Court’s opinion:

“necessity” as a defence for the jury to consider;

the right to the opportunity for jury nullification; and

the mandatory sentence as cruel and unusual punishment.

“NECESSITY” AS A DEFENCE FOR THE JURY TO CONSIDER

Based on the law and the facts, the Court stated, there simply was no basis on which a jury could even consider the possibility of the defence of “necessity.” There was, in the words of the Court, “no air of reality” to the claim of “necessity.” In this regard, the Court first set out the legal requirements that go to make up the defence of necessity. Then, it looked to the facts involving Latimer.

The defence of necessity is one created by the common law, but it has, at its core, important values that will not hold individuals liable under the criminal law where they acted involuntarily and, more particularly, where their actions were taken under duress. The Court cited the leading case of Perka v. The Queen, [1984] 2 Supreme Court of Canada Reports 232, where then Justice Brian Dickson (later chief justice) said:

[The defence of necessity] rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is....

Justice Dickson insisted that the defence of necessity be limited to those rare cases in which true “involuntariness” is present. The defence, he held, must be “strictly controlled and scrupulously limited.”

The decision in Perka outlined three elements that must be present for the defence of necessity. The Court gave specific content to these elements:

Imminent peril. There must, said the Court, be an urgent situation of “clear and imminent peril.” Disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of happening and virtually certain to occur. Patience, itself, must be seen as “unreasonable.” If the accused could reasonably have avoided the situation of peril, there was a duty to do so.

No reasonable legal alternative to disobeying the law. If there were a reasonable legal alternative to breaking the law, then there is no basis for arguing necessity. The accused need not be placed in the last resort imaginable, but he/she must have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity fails.

Proportionality. There must be proportionality between the harm inflicted and the harm avoided. This means that the harm inflicted must not be disproportionate to the harm the accused sought to avoid. Put somewhat differently, the harm avoided must clearly be greater than the harm inflicted. Justice Dickson said in Perka: “No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself, we will not excuse him.”

IMMINENT PERIL

On appeal, the Supreme Court of Canada was not asked to determine whether the necessity defence had been proved by Latimer. Rather, the Court was only asked to decide whether there had been enough merit in Latimer’s claim to the defence for it to be put to the jury. Recall that defence counsel asked the trial judge to rule on whether the necessity defence could be put to the jury — after all the evidence had been heard and the defence was at the point of closing argument.

The test that the trial judge used to answer the question was whether there was an air of reality to the claim of necessity. If the trial judge had answered that question yes, then a jury, properly instructed, would have had to weigh the evidence and, if it believed Latimer, to enter a verdict of acquittal.

But, as noted, the trial judge simply could find no real basis to the defence; and, the Supreme Court of Canada agreed with this finding. The Supreme Court stated that not one of the three factors necessary for proof of necessity had been put forward by Latimer. (And, each of those factors would have had to be proved.) The Court stated:

The first requirement [of] imminent peril ... is not met in this case. [Latimer] does not suggest he himself faced any peril; instead, he identifies a peril to his daughter, stemming from her upcoming surgery which he perceived as a form of mutilation. Acute suffering can constitute imminent peril, but in this case there was nothing in her medical condition that placed Tracy in a dangerous situation where death was an alternative. Tracy was thought to be in pain before the surgery, and that pain was expected to continue, or increase, following the surgery. But that ongoing pain did not constitute an emergency in this case....

Tracy’s proposed surgery did not pose an imminent threat to her life, nor did her medical condition. In fact, Tracy’s health might have improved had Latimer not rejected the option of relying on a feeding tube. Tracy’s situation was not an emergency. [Latimer] can be reasonably expected to have understood that reality.

There was no evidence of a legitimate psychological condition that rendered [Latimer] unable to perceive that there was no imminent peril. [Latimer] argued that, for him, further surgery did amount to imminent peril. It was not reasonable for [Latimer] to form this belief, particularly when better pain management was available.

The Court went on to examine each of the other factors required to prove “necessity” even though it would have been enough to have ended with its discussion of imminent peril.

NO REASONABLE LEGAL ALTERNATIVE TO DISOBEYING THE LAW

With regard to no reasonable legal alternative, the Court stated:

In this case, there is no air of reality to the proposition that [Latimer] had no reasonable legal alternative to killing his daughter. He had at least one reasonable legal alternative: he could have struggled on, with what was unquestionably a difficult situation, by helping Tracy to live and by minimizing her pain as much as possible. [Latimer] might have done so by using a feeding tube to improve her health and allow her to take more effective pain medication, or he might have relied on the group home that Tracy stayed at just before her death.

[Latimer] may well have thought the prospect of struggling on [would be] unbearably sad and demanding. It was a human response that this alternative was unappealing. But it was a reasonable legal alternative that the law requires a person to pursue before he can claim the defence of necessity. [Latimer] was aware of this alternative but rejected it [emphasis added].

PROPORTIONALITY

We come now to the third factor in the necessity defence: proportionality — weighing the wrong done against the benefit obtained. The Court assumed that this aspect of the defence might apply to Latimer. But, it found that the facts proved by him simply were inadequate. The Court stated:

Assuming for the sake of analysis only that necessity could provide a defence to homicide, there would have to be a harm that was seriously comparable in gravity to death (the harm inflicted). In this case, there was no risk of such harm. The “harm avoided” in [Latimer’s] situation was, compared to death, completely disproportionate. The harm inflicted in this case was ending a life; that harm was immeasurably more serious than the pain resulting from Tracy’s operation which Mr. Latimer sought to avoid. Killing a person — in order to relieve the suffering produced by a medically manageable physical or mental condition — is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.

The Court left no doubt as to its findings:

We conclude that there was no air of reality to any of the three requirements for necessity. As noted earlier, if the trial judge concludes that even one of the requirements had no air of reality, the defence should not be left to the jury. Here, the trial judge was correct to remove the defence from the jury. In considering the defence of necessity, we must remain aware of the need to respect the life, dignity, and equality of all the individuals affected by the act in question. The fact that the victim in this case was disabled rather than able-bodied does not affect our conclusion that the three requirements for the defence of necessity had no air of reality here.

NO SURPRISE TO THE DEFENCE

The trial court’s rejection of the necessity defence, said the Supreme Court of Canada, should not have come as a surprise to the Latimer defence. The necessity defence had been rejected in the first Latimer trial, and that ruling was affirmed by a unanimous Saskatchewan Court of Appeal.

The Supreme Court stated in Latimer:

It was hardly a surprise that the trial judge eventually removed the defence of necessity. The decision did not ambush [Latimer], nor should it have caught him unaware. The trial judge in the first Latimer case had removed the defence, and the Court of Appeal in Latimer ... unanimously agreed.

The ruling was obvious: there was no air of reality to even one of the three requirements for necessity. In discussing his decision to delay ruling on necessity until after closing [arguments], the tenor of the trial judge’s comments makes it apparent that he was highly skeptical that the defence was available. We are of the view that the surprise here, if any, was minimal, and we fail to see the prejudice [to Latimer]. While it is customary and in most instances preferable for the trial judge to rule on the availability of a defence prior to closing addresses to the jury, it cannot be said that the failure to do so here resulted in an unfair trial.

CHALLENGE QUESTION

STANDARD: OBJECTIVE OR SUBJECTIVE?

For the defence of necessity to apply in a criminal case, is it enough that an accused honestly believes that each of these three elements apply: imminent peril, no reasonable legal alternative to disobeying the law, and proportionality?

It is not enough that an accused subjectively believes the three elements of the necessity defence apply to him/her. In Latimer, the Supreme Court of Canada said that there must be an objective belief basis for each of the three elements. The reason: Society has an expectation of “appropriate and normal resistance [by the accused] to pressure.

As to the first two factors of the necessity defence (imminent peril and no reasonable legal alternative to committing the offence), the Court said that the accused would be required to show the objective facts to support the claim. But, the accused would also be permitted to have the court take into account his/her individual situation and character. The Court stated:

While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open.

There must be a reasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person’s ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes....

THE THIRD ELEMENT: PROPORTIONALITY

Proportionality, said the Court, must be measured on a purely objective standard. To do otherwise would violate “fundamental principles of criminal law.” The reason: “Evaluating the nature of an act is fundamentally a determination reflecting society’s values as to what is appropriate and what represents a transgression.”

There is a threshold at which a person must be expected to suffer the harm rather than break the law. This is a moral judgment. But, a valuable aid in coming to judgment is to objectively compare the harm inflicted by the accused against the benefit arising from the action taken. The Court stated:

The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition, look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself. The proper perspective, however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations (such as, in this case, the section 15(1) equality rights of the disabled [under the Charter of Rights and Freedoms]). We conclude that the proportionality requirement must be determined on a purely objective standard.

CAN MURDER EVER BE PROPORTIONAL?

Is it possible, as a matter of law, for murder ever to be a proportional response within the meaning of the necessity defence? Probably not. The Supreme Court of Canada stated:

The third requirement for the necessity defence is proportionality; it requires the trial judge to consider, as a question of law rather than fact, whether the harm avoided was proportionate to the harm inflicted.

It is difficult, at the conceptual level, to imagine a circumstance in which the proportionality requirement could be met for a homicide. We leave open, if and until it arises, the question of whether the proportionality requirement could be met in a homicide situation.

In England, the defence of necessity is probably not available for homicide.... The Law Reform Commission of Canada has suggested the defence should not be available for a person who intentionally kills or seriously harms another person: Report on Recodifying Criminal Law (1987), at p. 36. American jurisdictions are divided on this question, with a number of them denying the necessity defence for murder....

(As noted, the Court assumed in law that this aspect of the defence might be sought by Latimer. Based on the facts, however, the Court found Latimer had absolutely no objective basis for making such a claim.)

THE RIGHT TO THE OPPORTUNITY FOR JURY NULLIFICATION

The second major ground for appeal heard by the Supreme Court of Canada in the Latimer case was that Latimer was denied the opportunity of jury nullification. In effect, jury nullification means that the jury, regardless of the evidence, chooses not to apply the law and instead acquits the defendant.

But, how can this be? Isn’t the function of the jury to weigh the facts in accordance with the law as given to it by the judge, and then return a verdict? This is what the Court said of jury nullification in Latimer:

Jury nullification is a situation where a jury knowingly chooses not to apply the law and acquits a defendant regardless of the strength of the evidence against him. Jury nullification is an unusual concept within the criminal law, since it effectively acknowledges that it may occur that the jury elects in the rarest of cases not to apply the law. The explanation seems to be that, on some occasions, oppression will result either from a harsh law or from a harsh application of a law.

This Court has referred to the jury’s power to nullify as “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law” and it has characterized the jury nullification power as a “safety valve” for exceptional cases.... At the same time, however, Chief Justice Dickson warned that “recognizing this reality [that a jury may nullify] is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so.”

In effect, the Court stated that juries, on their own, may ignore the law. They may ignore their sworn duty to apply the law fairly to the facts. But, this is not the same as bestowing on the accused a right to have jury nullification. The Court stated:

An accused is entitled to a fair trial, including the presumption of innocence, the duty of the Crown to prove guilt beyond a reasonable doubt, and the ability to make full answer and defence.

The accused is not entitled to a trial that increases the possibility of jury nullification. If the trial of the accused has not been unfair and no miscarriage of justice has occurred, the accused cannot succeed on an argument that due to some departure from the norm by the trial judge, his chances of jury nullification are lessened [emphasis added].

NULLIFICATION APPLIED TO LATIMER

Latimer argued that if the jury had been allowed to consider the defence of necessity — even though it was at best marginal in substance — it might have decided to nullify. And, indeed, if the trial judge had not suggested to the jury that it might have some input into the sentence when, in fact, this was precluded by the law (at least as to a minimum sentence), it might have decided to nullify.

The Supreme Court of Canada rejected both arguments:

It was for the trial judge to determine whether there was an “air of reality” to the defence of necessity. And, for the reasons set out earlier in this chapter, the ruling was that there was simply no basis to the claimed defence. This was a matter which the Supreme Court of Canada reviewed in considerable depth, as described, sustaining the ruling of the trial court judge. In effect, there was no duty of the trial judge to put before a jury a question of law that had no basis in the facts that had been proved.

But, what is to be said about the failure of the trial judge to allow the jury to comment on any possible sentence? Was it misleading for the trial judge to suggest, in response to a jury question, that there would be the opportunity for comment? After all, in law, the only matter upon which the jury might have had any input was whether the minimum sentence of ten years imprisonment should have been increased. Latimer argued that if the jury knew they could not input into a lesser sentence, then there might have been a greater opportunity for jury nullification. Again, the Court rejected the argument. It stated:

The rule in Canada is that guilt is for the jury to determine, while sentencing is left to the trial judge. That long-standing approach is sensible as a trial judge will obviously have more knowledge on both the acceptable range of sentences for the particular offence and the principles of sentencing. The jury’s role is to determine on the facts whether the evidence establishes guilt. There is no reason to depart from the general rule.

It may seem odd that the jury, without knowing the penalty, could be blind to the consequences of its conclusions, but that fact is both appropriate and desirable when one takes into account the risk that the jury could be influenced — whether towards acquitting or convicting — on the basis of the sentence. That logic applies with the same force when the prescribed penalty is a statutory minimum.

The fact that a convicted person will be subject to a pre-designated minimum sentence should not influence the jury’s consideration of the question of guilt. [Latimer] suggests that the jury was less likely to nullify because it was not explicitly told of the mandatory minimum sentence. The question of whether the jury would have been more likely to acquit if informed of the mandatory minimum sentence — however interesting its speculation may be — cannot be the basis for a requirement that the jury be informed of the penalty consequent on conviction.

A CHARTER “RIGHT”

More broadly, Latimer claimed what amounted to a Charter right — that is, a constitutional right — to the opportunity for jury nullification. He did this under section 7 of the Charter which affords the right to life, liberty, and security of the person except to the extent the government curtails such rights “in accordance with the principles of fundamental justice.” The Court added:

Latimer’s second argument is a broad one, that the accused person has some right to jury nullification. How could there be any such “right”? As a matter of logic and principle, the law cannot encourage jury nullification. When it occurs, it may be appropriate to acknowledge that occurrence. But ... saying that jury nullification may occur is distant from deliberately allowing the defence to argue it before a jury or letting a judge raise the possibility of nullification in his or her instructions to the jury.

[Latimer] concedes as much, but advances some right, on the part of the accused person, to a jury whose power to nullify is not undermined. He suggests the right to a fair trial under section 7 of the Charter encompasses this entitlement. [Latimer] submits that there is a jury power to nullify, and it would be unconstitutional to undermine that power.

The Court stated:

We reject that proposition. [Latimer] cannot legitimately rely on a broad right to jury nullification. In this case, the trial did not become unfair simply because the trial judge undermined the jury’s power [in fact, though not in law] to nullify. In most if not all cases, jury nullification will not be a valid factor in analyzing trial fairness for the accused. Guarding against jury nullification is a desirable and legitimate exercise for a trial judge; in fact, a judge is required to take steps to ensure that the jury will apply the law properly.... Steps taken by a trial judge to guard against jury nullification should not, on that basis alone, prejudice the accused person.

AN EXAMPLE OF JURY NULLIFICATION: SPECIAL CIRCUMSTANCES?

Ted and Rose Bates, immigrants from England, had lived in Saskatchewan for about nineteen years when, as a result of the Depression, their savings were wiped out. In the spring of 1932, they were forced to sell their butcher shop in Glidden for $450. But, the sale price was never paid.

The Bateses moved to Vancouver and opened another store. That, too, failed. They were at the end of their economic rope. They were too proud to seek public charity, but they had no choice. There was no money for food or shelter.

The B.C. government, like that of other provinces, placed the burden of welfare to a great extent on local authorities, that is, on the cities and towns. And, the local governments, with few exceptions, required those seeking help to go back to their home towns. The Bateses found no help in Vancouver.

ONE-WAY TICKETS

The Bateses were forced to return to Saskatchewan — with the help of one-way train tickets provided by the Salvation Army. In Saskatoon, officials repeated what they had told the Bateses earlier: If they wanted help, they would have to return to their home town of Glidden. The couple, as a matter of pride, could not do this. The Saskatoon officials gave them coupons for a weekend at a local hotel and two meals a day. But, their help ended when the weekend was over.

The couple decided to end their lives, and that of their son, Jack. Rose Bates pawned her jewelry for $10. With the money, they rented a car and bought gas with a portion of what remained. On Monday, they drove to the town of Perdue. There was only enough money left to buy three quarts of gas from a farmer. They parked the car that night at the rear of a public school.

Jack sat quietly in the back seat, reading from two books: Chester Gump at Silver Creek Ranch and Mickey Mouse: The Mail Pilot. Ted Bates took a tube, attached it to the exhaust, and then brought it to the window of the car. The car was turned on. The window was opened only enough to leave room for the hose. The couple waited for death from the carbon monoxide fumes.

A CHILD DIES

There was not enough gas to kill the parents, but there was enough to kill Jack. His parents woke from the stupor caused by the fumes. When they saw what had happened, they tried unsuccessfully to kill themselves through other means. It was in that situation that police found them. The couple were taken to hospital where they recovered.

The residents of Glidden learned of the tragedy. They called a mass meeting, which was put off for a day because of a snowstorm so that neighbouring farmers could attend.

Those attending the meeting drafted a resolution that declared that what happened to the Bateses was a “direct result of the Depression.” They urged the government in Ottawa to take full charge of relief. That plea was denied. However, the meeting did raise money for Jack’s funeral.

THE TRIAL

The Crown laid criminal charges against the Bateses and brought them to trial one hundred days after the death of their son. Crown Counsel argued that responsibility for Jack’s death rested with his parents. The jury, consisting of local residents, listened to the Crown’s case, and they found the Bateses not guilty. At that point, the crowded courtroom broke out in applause. In effect, the jury’s verdict was nullification of the law.

LENIENCY FOR HOMICIDE — THE U.S.A.

In 2009 Jonathan Turley, a professor of public interest law and a practising criminal defence lawyer, wrote that hundreds of children were believed to have died in the United States from 1984 to 2009 after faith-healing parents denied them medical attention to end their sickness or protect their lives.

In law, these parents could have been charged with criminal neglect or — even as with Robert Latimer — murder. But, Turley said, “when parents say the neglect was an article of faith, courts routinely hand down lighter sentences. Faithful neglect has not been used as a criminal defense, but the claim is surprisingly effective in achieving more lenient sentencing....”

Turley cited as an example a case arising in the state of Wisconsin, which has under its child abuse laws statutory exemption regarding child neglect that is based on faith. Leilani and Dale Neumann were sentenced for allowing their eleven-year-old daughter, Madeline, to die in 2008 from an undiagnosed but treatable form of diabetes.

The Neumanns were affiliated with a faith-healing church called Unleavened Bread Ministries. They prayed with other members while Madeline died. They could have received twenty-five years in prison. Instead, the court emphasized their religious beliefs and gave them each six months in jail (to be served one month a year) and ten years probation. They were allowed to keep their remaining children.

During their sentencing, Marathon County Circuit Court Judge Vincent Howard said the Neumanns were “very good people raising their family who made a bad decision, a reckless decision.” He then gently encouraged them to remember that “God probably works through other people, some of them doctors.”

Turley stated:

The advocacy group Children’s Health Care Is a Legal Duty estimates that roughly 300 children have died in the United States since 1975 because care was withheld. When such parents appear in court, they often insist that they love their children and their God — an argument that receives a sympathetic hearing from judges and prosecutors.

While defendants generally show contrition for their actions, the Neumanns remained unrepentant about not calling emergency personnel until after Madeline stopped breathing. Leilani Neumann said: “I do not regret trusting truly in the Lord for my daughter’s health.” Dale Neumann told the court: “I am guilty of trusting my Lord’s wisdom completely.... Guilty of asking for heavenly intervention. Guilty of following Jesus Christ when the whole world does not understand. Guilty of obeying my God.”

THE LATIMER SENTENCE: CRUEL AND UNUSUAL PUNISHMENT?

Recall that the trial court judge imposed a “constitutional exemption” and sentenced Robert Latimer to one year in prison and one year of probation confined to his farm. He did this on the grounds that the ten-year minimum sentence for second degree murder, as applied to Latimer, would have been cruel and unusual punishment, which is prohibited under section 12 of the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the supreme law of the land.

However, the Saskatchewan Court of Appeal reversed the trial court on this point and imposed the minimum ten-year sentence without the possibility of parole. It is this question that the Supreme Court of Canada also heard.

The Supreme Court affirmed the judgment of the Court of Appeal: the ten-year sentence as applied to Latimer was not cruel and unusual punishment. We emphasize that Latimer did not question the constitutionality of the minimum-sentence law. What he questioned was the constitutionality of that law as applied to him.

THE TEST

To grant a “constitutional exemption” means, at least in the individual case of Latimer, setting aside a clear law enacted by Parliament. The Court stated that it would not easily overturn such a law. In effect, said the Court, for such a law to be overturned there must be a great difference between the wrong done and the penalty imposed by the law — in this case, the minimum sentence of ten years. Indeed, the difference must be so great as to outrage standards of decency.

The Court stated:

While the test is one that attributes a great deal of weight to individual circumstances, it should also be stressed that in weighing the section 12 considerations, the court must also consider and defer to the valid legislative objectives underlying the criminal law responsibilities of Parliament....

It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of section 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter [emphasis added].

THE TEST APPLIED

In effect, there were two parts to the test applied to Latimer:

How did the sentence affect him? For example, would a sentence of ten years have much meaning in terms of the likelihood that Latimer again would commit a similar crime?

What meaning should be given to Parliament’s goal in setting a ten-year minimum sentence? Would such a sentence serve to set an example, or to deter others?

The Court stated that Latimer had been found guilty of the most serious crime: the subjective, intentional taking of the life of another. In effect, there is no difference between first degree and second degree murder, said the Court, except the term of imprisonment. It is against this “reality” that the Court weighed the facts individual to Latimer. In doing so, it considered both “aggravating and mitigating” circumstances.

The following was the Court’s reasoning in ruling that the ten-year sentence did not violate section 12 of the Charter:

On the one hand, we must give due consideration to Mr. Latimer’s initial attempts to conceal his actions, his lack of remorse, his position of trust, the significant degree of planning and premeditation, and Tracy’s extreme vulnerability. On the other hand, we are mindful of Mr. Latimer’s good character and standing in the community, his tortured anxiety about Tracy’s well-being, and his laudable perseverance as a caring and involved parent. Considered together, we cannot find that the personal characteristics and particular circumstances of this case displace the serious gravity of this offence [emphasis added].

Finally, this sentence is consistent with a number of valid penological goals and sentencing principles. Although we would agree that in this case the sentencing principles of rehabilitation, specific deterrence, and protection are not triggered for consideration, we are mindful of the important role that the mandatory minimum sentence plays in denouncing murder. Denunciation of unlawful conduct is one of the objectives of sentencing recognized in §718 of the Criminal Code [emphasis added].

Furthermore, denunciation becomes much more important in the consideration of sentencing in cases where there is a “high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals may well be deterred by severe sentences.” ... This is particularly so where the victim is a vulnerable person with respect to age, disability, or other similar factors.

ANOTHER APPEAL FOR LATIMER?

The Supreme Court of Canada affirmed the conviction and sentence of Latimer. However, is it possible for him to have that sentence changed after the nation’s highest court has ruled? The Supreme Court of Canada, itself, suggested that there might be another way for Latimer to have his sentence changed: the Royal Prerogative of Mercy (RPM). Through the Crown, power to exercise the RPM is vested in the Governor in Council (i.e. the Federal Cabinet) to grant a pardon or a conditional pardon to any person convicted of an offence.

For our purposes, the relevant provisions of the Criminal Code provide:

§749 Her Majesty may extend the royal mercy to a person who is sentenced to imprisonment under the authority of an Act of Parliament....

The Governor in Council may grant a free pardon or a conditional pardon to any person who has been convicted of an offence.

Where the Governor in Council grants a free pardon to a person, that person shall be deemed thereafter never to have committed the offence in respect of which the pardon was granted....

The Court seemed to suggest that the statutory use of a mandatory minimum sentence, coupled with the facts of the Latimer case, might prompt the government to grant some form of pardon. In this regard, the Court noted that there is “considerable difference of opinion ... on the wisdom of employing minimum sentences from a criminal law policy or penelogical point of view.”

But, the decision to grant a pardon of any kind is not a judicial matter. It is a matter of government policy. The Court stated in Latimer:

The prerogative [the grant of a pardon] is a matter for the executive, not the courts. The executive will undoubtedly, if it chooses to consider the matter, examine all of the underlying circumstances surrounding the tragedy of Tracy Latimer that took place on October 24, 1993, some seven years ago. Since that time, Mr. Latimer has undergone two trials and two appeals to the Court of Appeal for Saskatchewan and this Court, with attendant publicity and consequential agony for him and his family.

CHALLENGE QUESTIONS

FOR THE LATIMER FAMILY: FORCED CHOICE?

Would the agency be able to have a court declare Tracy a ward of the province for the purposes outlined of treatment and convalescence? If the agency were successful, then would it be able to act in effect as Tracy’s parents and order the listed procedures to take place?

Suppose that, before her death, a government child welfare agency determined that it would be in Tracy Latimer’s best interest: (1) to have a feeding tube inserted into her stomach; (2) to have additional surgeries; and (3) to be cared for during convalescence at a government-run hospital. Assume, further, that the agency was able to prove that without the proposed medical procedures, Tracy’s life would be endangered.

However, these were all choices that had been rejected by Tracy’s parents. Bear in mind that this is only a hypothetical question. Nothing in the facts relating to the case against Robert Latimer suggested that the medical procedures noted were required to save Tracy’s life. Rather, the procedures seemed designed to improve the quality of her life.

However, having said this, on the basis of the hypothetical question, it is likely that a court would award the wardship to the agency for a period long enough to do that which would be reasonably necessary medically to protect Tracy’s life. In asking a court to declare Tracy a ward of the agency, it follows that a hearing would be given to show the necessity for the proposed procedures.

It was in Richard B. v. Children’s Aid Society of Metropolitan Toronto as Official Guardian for Sheena B., [1995] 1 Supreme Court of Canada Reports 315 that the Supreme Court of Canada allowed a wardship to a government agency over an infant whose parents, on religious grounds, refused blood transfusions for their infant child. The transfusions were shown by the agency to be necessary to protect the infant’s life.

The start point in analysis is to recognize that no one may impose medical treatment on another without that person’s consent. Supreme Court of Canada Justice Peter Cory said: “It should not be forgotten that every patient has a right to bodily integrity. This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted. Everyone has the right to decide what is to be done to one’s own body. This right includes the right to be free from medical treatment to which the individual does not consent.” (Ciarlariello v. Schachter, [1993] 2 Supreme Court of Canada Reports 119, at 135.)

Parents have the right (and the responsibility) in law to provide for the necessities (including medical needs) of their minor children. In Richard B., this right/duty can take on an interest protected by the Charter. But, it is the life of the child which is of concern to the Court. Where there has been a fair hearing and a judicial decision made in the best interest of the child, the Charter interest of the parents will be deemed to have been protected.

LATIMER PAROLED

Robert Latimer was fifty-six when he was convicted of second degree murder for killing his severely disabled twelve-year-old daughter, Tracy. After the ten-year mandatory sentence, before becoming eligible for parole, Latimer chose and was granted day parole at a halfway house in Victoria, B.C., in March 2008. Apparently, he chose British Columbia because he could — and did — enroll in a full-time college-level program for training as an electrician.

On December 4, 2009, the National Probation Board allowed an extended leave from December 24, 2009 to January 7, 2010. This allowed Latimer to return to visit his family and farm in Saskatchewan.

On November 29, 2010, Latimer was granted a full parole and was free to return to his home in Saskatchewan.

Latimer continued to express disappointment with the hearings he had received. He said: “If you look at the first trial, that wasn’t honest. [The decision of the trial court was overturned, and a new trial ordered on the basis of improper jury selection.] Then they pretty much had to carry it through and make that credible with another trial, which was just as crooked. They won’t allow a jury to decide whether it was right or wrong.”

He added that he was “haunted” by a reference the Supreme Court of Canada made, saying more effective pain medication could have been given to his daughter. Latimer said his understanding was that his daughter could handle only children’s Tylenol.

Latimer held to the view that his jury was not allowed to consider what he saw as the central question in his trial: Was he right or wrong in choosing to end what he saw as his daughter’s suffering? The chance, as he saw it, to review that question came up when he sought parole without restrictions to travel outside Canada. Initially, the parole board denied Latimer’s application to travel without restrictions (such as reporting to the parole board). On appeal, the agency’s appeal board upheld the restriction.

Latimer then appealed to the Federal Court, and his appeal was sustained in part. The court ordered the parole appeal board to reconsider its judgment. Latimer’s record, said the court, had nothing in it to indicate that he was a danger and needed to be prevented from freely travelling outside of Canada. (At the time, Latimer was sixty.)

The parole board duly reconsidered its judgment. It found that the condition of reporting to the board should remain. Latimer was “low-risk” in terms of any repeat violation, but a level of risk did remain. The parole board stated: “It is concerning to the board, however, that we read on file that there has been no change in your thinking and level of rationalization which led to the offence. You continue to deny this was a murder and believe what you did was the right thing to do. This represents a level of risk.”

There was also a reference to concerns about how the board would manage Latimer’s conditions if he were approved for unrestricted travel.

REFERENCES AND FURTHER READING

* Cited by the Supreme Court of Canada.

American Law Institute. Model Penal Code and Commentaries, Part I, vol. 2. Philadelphia, PA: 1985.*

Berton, Pierre. The Great Depression: 1929–1933. Toronto: McClelland & Stewart, 1990.

Fletcher, George P. Rethinking Criminal Law. Boston: Little, Brown and Co., 1978.*

Keyserlingk, E. “Sanctity of Life or Quality of Life in the Context of Ethics, Medicine and Law. ” Study Paper for the Law Reform Commission of Canada, Protection of Life Project, Ottawa, 1979.*

“Latimer Still Defends Killing Daughter.” CBC.ca, February 17, 2011.

Miller, Jeffrey. “N.B. Teen Had Statutory Right to Refuse Transfusions.” The Lawyers Weekly, July 22, 1994.

“Robert Latimer Granted Full Parole.” CTV.ca, November 29, 2010.

“Robert Latimer’s out-of-country travel conditions remain, parole board rules.” Canadian Press, November 17, 2014.

Somerville, M.A. “Pain and Suffering: Medicine and Law.” University of Toronto Law Journal 36 (1986): 286.*

Spencer, Beverly. “State Can Ensure Children Get Treatment, Says Top Court.” The Lawyers Weekly, February 17, 1995.

Turley, Jonathan. “When a child dies, faith is no defense. Why do courts give believers a pass?” Washington Post, November 15, 2009.

Chapter 4

Assisted Suicide: A “Right” To Die?

Is it unlawful to help another person to die? Does it matter that the person seeking such help is in pain and not able to end her/his life with their own hands? Is this really suicide by another name?

Among the questions raised in this chapter are:

Is the attempt to commit suicide unlawful under the Criminal Code?

What is physician-assisted suicide?

What are the medical principles guiding physicians in relation to assisted suicide?

The search for answers takes us to cases where questions of life, death, and the role of law as set by the legislature — embodied in the Charter of Rights and Freedoms and interpreted by the courts — are presented .

The central cases in this chapter are Rodriguez v. British Columbia (Attorney General), [1993] 3 Supreme Court of Canada Reports 519, and Carter v. Canada (Attorney General), [2015] Supreme Court of Canada Reports 5. In a 5–4 decision in Rodriguez, the Supreme Court of Canada upheld Criminal Code provisions prohibiting assisted suicide. Violation of that law then could result in imprisonment of up to fourteen years.

In Carter, decided by the Supreme Court twenty-two years after Rodriguez, the Court reversed its position. The Carter decision was unanimous. All nine members of the Court accepted the decision in Carter. To add greater weight to that acceptance, the ruling was formally announced as the decision of “the Court,” not the decision of individual justices.

We will set out the case facts, the law, the arguments, and the results, as well as some of the questions to be considered. We will find that the answers of yesterday may not be the same as the answers needed for today or tomorrow. And that, in turn, may cause us to reflect on the role we want our courts, and perhaps especially the Supreme Court of Canada, to play in resolving questions of life and death. We will also probe more deeply, not just about an increasing role for government, but about what we as individuals can do to address concerns relating to dying and death — conditions affecting all of humanity.

The final chapter of this book sets out just one of those possibilities where law, as such, has only a minimal role to play: palliative care. We will find that the Supreme Court in both the Rodriguez and Carter cases did consider public opinion regarding assisted suicide as it was manifested in law (or the lack of such law). If palliative care were provided, the rate of assisted suicide would diminish, according to Angus Reid, the Canadian polling organization director. We will ask what palliative care can entail and, if it were provided on a national basis, to what extent it would it obviate the need for — or at least the need in the same degree — for assisted suicide. In part, this will lead us to a return to the facts of Rodriguez and Carter.

THE FACTS OF THE RODRIGUEZ CASE

At forty-two, Sue Rodriguez, a resident of British Columbia, was married and had an eight-year-old son. She had amyotrophic lateral sclerosis (ALS), an illness commonly known as Lou Gehrig’s disease, for which there is no known cure.

ALS is a disease of the motor neurons of the brain and spinal cord. Motor neurons are nerve cells that control the muscles operating the body. With ALS, the nerve cells die and the muscle units they control weaken and shrink. However, other parts of the brain system, such as those controlling sensation and reasoning, are not affected by the disease. The average life expectancy following a diagnosis of ALS is between two and three years.

Rodriguez made it clear that she wanted to live a full life as long as possible. When it no longer became possible to have quality in her life, she wanted to be able to end it at a time and place of her choosing.

The issue was not that she might lack the will to commit suicide. Indeed, Canada had eliminated from the Criminal Code both the offence of suicide and attempted suicide. Rather, Rodriguez feared that physically she might not be able to end her life by herself. The final stage of her disease would deny her the use of her arms and legs. Indeed, she would lose even the power to breathe without the assistance of a ventilator. To end her life, at a point of her choosing, she would need help. And, the provider of such help would find himself/herself guilty on conviction of the crime of assisted suicide. (This assumes that the “provider” could be identified and her/his role proved.)

Section 241 of the Criminal Code provides:

Every one who

(a) counsels a person to commit suicide, or

(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Note that the sweep of the law is broad. To fall within its meaning, it is not necessary that the individual counselled commits suicide. It is enough that that person is counselled to commit suicide. For example, under the Criminal Code, a doctor sought out by Rodriguez could not “advise” the mixtures she might take to end her life.

Rodriguez did seek the promise of help from two British Columbia physicians. But they refused, in part because of fear of prosecution under the Criminal Code. At least in theory, she also could have been prosecuted under section 241 for seeking aid to commit suicide.

Rodriguez argued that section 241 was unconstitutional — in violation of the Charter of Rights and Freedoms. As such, she asked the Court, in effect, to nullify the statute. In support of her position, she cited these Charter provisions:

§7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

§12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

§15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

RODRIGUEZ’S CHARTER CHALLENGE IN BRITISH COLUMBIA

Sue Rodriguez did not begin her court challenge in the Supreme Court of Canada. Few persons do. Indeed, it is safe to say that often years may pass from the start of a case until the matter reaches the Supreme Court. And, even then, the odds are that the Court will not hear the case, as the Court will deny any case that it believes is not of special public importance.

Rodriguez had perhaps only months left in her life and any court challenge, almost by definition, requires time and patience. Still, she sought and obtained legal help through the British Columbia Civil Liberties Association, which brought her challenge to the lower courts of British Columbia.

We will pick up the litigation in Rodriguez’s appeal from the British Columbia Court of Appeal. We will find that the arguments and decision in some important ways parallel that of the ruling of the Supreme Court of Canada.

The heart of Rodriguez’s argument was that she had a Charter right to control her own body. She sought a declaration of that right with particular reference to section 7 of the Charter which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

In this regard, she pointed, by way of example, to section 15 of the Charter that, among other things, prohibits discrimination on the basis of physical disability. Individuals without the disability of ALS would not violate the Criminal Code if they committed suicide. Rodriguez, on the other hand, was denied that right. To repeat, her disability would not allow her to commit suicide.

This is how Rodriguez presented her request to the appellate court through her lawyers:

[She] does not wish to face the indignity which will accompany being forced to endure life in such a condition and fears that she will be unable to cope with what will surely be a mentally agonizing death.

She wishes to have the option of committing suicide in the event that [her] remaining life becomes completely unbearable.

[She] wishes to have a physician assist her to commit suicide, although she proposes that she herself commit the final act by technological means which do not require her to swallow pills.

Her Charter argument was rejected by the B.C. Court of Appeal.

THE DECISION OF THE BRITISH COLUMBIA COURT OF APPEAL

By a 2–1 vote, Rodriguez’s claim was denied by the Court of Appeal. Each of the three justices of the appellate court wrote an opinion. Justices H.A. Hollinrake and Patricia Proudfoot wrote the majority opinions, and Chief Justice Allan McEachern wrote a forty-three-page dissent.

THE MAJORITY OPINION OF JUSTICE HOLLINRAKE

Justice Hollinrake wrote that human dignity is a part of what goes into the “security of the person,” within the meaning of section 7 of the Charter. To deny Rodriguez the opportunity for assisted suicide would deprive her of that security of the person.

However, that is not the end of the matter. That Charter right comes into play when one is deprived of the security of the person contrary to the principles of fundamental justice. The question then is whether section 241 of the Criminal Code deprived Rodriguez of the security of her person contrary to the principles of fundamental justice. The answer, said Justice Hollinrake, is found by asking how a democratic society historically has treated assisted suicide.

Justice Hollinrake could find nothing in the history of Parliament that indicated any intent to end or soften the substance of section 241. The prohibition against aiding suicide, he said, had been part of Canadian criminal law since 1892. Further, when Parliament in 1972 removed the provision in the Criminal Code against attempted suicide — that is, where one attempts to take her/his life alone — section 241 was left intact.

As to the views of doctors concerning assisted suicide, Justice Hollinrake concluded that there was a history of opposition to the practice of physician-assisted suicide. Here is an example of the role of opinion in shaping policy. In this instance, it is the opinion of medical doctors. Justice Hollinrake stated:

The Canadian Medical Association, the British Medical Association, the American Medical Association and the World Medical Association all condemn the practice of active euthanasia [from Greek, meaning good death] and physician-assisted suicide.

However, the medical practice of withdrawing treatment to alleviate pain is acceptable to the profession. The [reasoning] behind the drawing of this distinction seems to be one based on intent.

The withdrawing of treatment is to lessen suffering, which is consistent with the Hippocratic Oath [an ancient code of ethics, the principles of which are still pledged by medical students on their graduation]. Active euthanasia [or mercy killing] by the physician or by the patient with the doctor’s assistance, is to cause death, which runs against the fundamental intuition of medical training. It must be noted that these are the governing bodies of physicians which take this stand.

There is a line, said Justice Hollinrake, between easing the pain of a person facing certain death (called palliative care) that might even hasten death, and intentionally causing death. For Parliament to draw such a line, Justice Hollinrake said, would not violate the principles of fundamental justice.

THE MAJORITY OPINION OF JUSTICE PROUDFOOT

Justice Proudfoot examined section 7 of the Charter both as to the procedure and the substance of what Rodriguez sought. First, as to the procedure, she found that it would make “bad law” to allow Rodriguez to seek a shield for an unnamed person who might violate section 241. Such a person then might never be a defendant in either civil or criminal proceedings. In effect, Rodriguez’s action was not so much for her as for others not before the court — namely, it would seem, the views of the people of Canada.

Second, Justice Proudfoot stated that, in any event, a single case was hardly the place to determine the views of the people of Canada. To her the questions involved were better left to Parliament. She stated:

In my view, leaving aside the legal and procedural [questions], the broad religious, ethical, moral and social issues implicit in the merits of this case are not suited for [judgment] by a court on the evidence of a single individual.

On the material available to us, we are in no position to assess the consensus in Canada with respect to assisted suicide. That is a matter more suitable to Parliament with all the means of inquiry at its disposal. I would leave to Parliament the responsibility of taking the pulse of the nation. I am opposed to the court assuming that role and responsibility by the device of formulating a new cause of action, a new procedure and a new remedy.

CHIEF JUSTICE MCEACHERN’S DISSENT

There was a detailed dissent from Chief Justice McEachern who said that the common law of assisted suicide had shown a “fairly recent, enlightened medical-jurisprudential trend towards greater humanity and sensitivity towards the awful problems of terminally ill citizens.”

(We will dwell at somewhat greater length on the dissent of the chief justice, partly because of its detail and partly because it framed a part of the dissent for four members of the Supreme Court of Canada on review of the Rodriguez case. And, it should be added that, in no small measure, it brought into sharp relief the limitations the court saw for itself — limitations that might only be more meaningfully addressed by the legislature.)

Palliative care might include the right of mentally competent patients to decline medical assistance, to reject care that might save their lives, or to order life-saving machinery to be turned off. But the chief justice acknowledged that this is different than having a physician take positive action to end a person’s life. The Criminal Code, through section 241, could hold liable both the physician and the patient asking the doctor’s help for assisted suicide.

The result was that the common law offered no hope for Rodriguez. Her only recourse, in law, said the chief justice, was the Charter and a broad interpretation of the rights included under the headings of life and death. Rodriguez had argued that such subjects included the quality and dignity of life, under the Charter headings of protection of the individual and his/her liberty.

Chief Justice McEachern wrote: “It would be wrong, in my view, to judge this case as a contest between life and death. The Charter is not concerned only with the fact of life, but also with the quality and dignity of life. In my view, death and the way we die is a part of life itself [emphasis added].”

Chief Justice McEachern supported this finding principally through reliance on The Queen v. Morgentaler [1988] 1 Supreme Court of Canada Reports 30, which included abortions as part of health care and, specifically, passages highlighting the flexibility of the protection afforded by the “liberty” and “security of the person” components of section 7 of the Charter.

If women have the right to control their bodies and make fundamental decisions about themselves, he said, then surely all persons, subject to controls, should be able to make provision to end their own needless suffering.

To Chief Justice McEachern, a surface violation of both these elements of section 7 arises when the state imposes prohibitions that have the effect of prolonging the physical and psychological suffering of a person.

FUNDAMENTAL JUSTICE

Chief Justice McEachern asked whether this denial of a terminally ill person’s rights under section 7 had been done in accordance with the principles of fundamental justice — a condition imposed by section 7.

For all the members of the British Columbia Court of Appeal, including the chief justice, there was the question of just who would be covered by its decision. Sue Rodriguez was not speaking for a class of persons — for all those who were terminally ill. She was speaking for herself. Justice Proudfoot made that fact an important part of her opinion. She would have narrowed the effect of the decision in terms of remedy to Rodriguez alone, because she alone was before the court seeking relief.

At the same time, it was not satisfactory to Chief Justice McEachern that the court should wait for Parliament to act before relief could be granted. For him, there was no real Parliamentary guidance that might be used as precedent. It was “interesting” but not very useful to note, he said, that Parliament had removed the “traditional” common law prohibition on suicide.

Perhaps, however, there was guidance to be found in the law relating to palliative care — that is, medical care to ease pain in dying. How far removed is such physician action from positive assistance to a competent (lucid) terminally ill person to end his or her life? How could this kind of assistance be squared with the mandate of section 7 of the Charter requirement of fundamental justice?

Chief Justice McEachern concluded that section 7 was enacted to support the value of human dignity and individual control over his/her body, so long as such action does not harm others. In logic and law, he said, any provision that imposes a period of senseless physical and psychological suffering upon someone who is shortly to die anyway cannot conform with any principle of fundamental justice.

Finding a violation of section 7 was not the end of the matter. The chief justice would have been bound to allow the violation if it met the conditions of section 1 of the Charter — that is, if the violation was one which could be justified in a free and democratic society. This was no easy task.

The chief justice was sensitive to the fact that only a single person, Sue Rodriguez, appeared as a party before the court. She did indeed raise serious general issues. But, her concern was personal. As such, this allowed the chief justice to avoid passing upon the constitutionality of section 241. His focus was on section 241 and how it affected Rodriguez. In that context, to repeat, he found section 241 in violation of the Charter.

What the chief justice did was fashion a remedy, directly tailored to Rodriguez, just as the Charter through section 24(1) allows. The section states: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

(In so doing, the chief justice left open the possibility that the guidelines for Rodriguez might be applied by others similarly situated.)

GUIDELINES SET OUT BY THE CHIEF JUSTICE

The guidelines or conditions that Rodriguez would have had to meet were as follows:

Rodriguez had to be mentally competent to make a decision to end her own life. This competence must to be certified in writing by a treating physician and by an independent psychiatrist who have examined her not more than twenty-four hours before arrangements are put in place which would permit her to end her life. Such arrangements must be carried out while one of the physicians actually is present with her.

The medical certificates must do more than say she is competent. They must also state that, in the opinion of the physicians, she truly desires to end her life, and that she has reached that decision of her own free will without pressure or influence from any source.

The physicians must also state the following: (a) She is terminally ill and near death. There is no hope for her recovery. (b) She is, or but for her present medication would be, suffering unbearable physical pain or severe psychological distress. (c) The physicians have informed her, and she understands that she has a continuing right to change her mind about terminating her life. (d) The physicians must also state when, in their opinion, she would likely die (i) if palliative were to be administered to her, or (ii) if palliative care were not given to her.

Not less than three full days before she is examined by a psychiatrist for the purpose of preparing a certificate of the kind described, the local coroner must be notified. The coroner, or the person named by him or her, may be present at the examination to be sure the patient means to end her life, and is competent to do so.

One of the two physicians who examined her must continue to re-examine her each day after arrangements are put in place to ensure that she does not indicate any change of mind in terms of ending her life.

No one may assist her to commit suicide after thirty-one days from the date of the first certificate. And, any arrangements that had been put in place before that time for her to commit suicide are to be discontinued.

The actual causing of death shall be the act of Rodriguez, herself, and not that of another.

The chief justice said: “These conditions have been prepared in some haste because of the urgency of [Rodriguez’s] circumstances, and I would not wish judges in subsequent applications to regard them other than as guidelines.”

THE SUPREME COURT OF CANADA DECIDES

The Supreme Court of Canada decided soon after the British Columbia Court of Appeal ruling that it would hear the case of Sue Rodriguez in what amounted to a special early session of the Court on May 20, 1993.

About four and a half hours were given over for oral argument on the appeals presented. The issue was not one only between Rodriguez and the Crown, that is, the Attorneys General of Canada and British Columbia. The issues went beyond what the dissent of Chief Justice McEachern would have allowed (namely, a remedy limited to Rodriguez).

Seven organizations, each claiming a special interest in the issues raised in the Rodriguez case, asked for and were granted the right to intervene, that is, to place their positions before the Court. These groups included: the British Columbia Coalition of People with Disabilities, Dying with Dignity, the Right to Die Society of Canada, the Coalition of Provincial Organizations of the Handicapped, the Pro-Life Society of British Columbia, the Pacific Physicians for Life Society, the Canadian Conference of Catholic Bishops, the Evangelical Fellowship of Canada, and People in Equal Participations Inc.

Having decided to give Rodriguez an early hearing might have signalled an intent, on the part of the Court, to come down with an early decision. Such was not the case. The issues simply were too complex. This can be seen in reading the transcript of the oral arguments. And, it certainly comes through in all of the Court’s opinions.

The majority opinion was written by Justice John Sopinka for five of the nine justices. There were three dissenting opinions: the dissent of then Justice Beverley McLachlin (later to become chief justice of the Court) in which Justice Claire L’Heureux-Dubé concurred; the dissent of then Chief Justice Antonio Lamer; and the dissent of Justice Peter Cory (who accepted the reasoning of the other dissents).

It is true that the decision of the Supreme Court of Canada states the law. Sometimes, however, there are questions as to the scope of the majority decision. For Sue Rodriguez, on the facts as applied to her, the Court’s decision was clear: Her appeal was denied. Left unresolved by the Court majority was what Parliament might do within the bounds of the Charter to decriminalize assisted suicide.

THE MAJORITY OPINION OF JUSTICE SOPINKA

Justice Sopinka said that there was nothing in the Charter which required the outcome sought by Rodriguez. And he further stated that there were a number of “serious concerns” that the majority had in terms of the relief she sought:

If the Court were to grant what Sue Rodriguez asked, said Justice Sopinka, it would recognize a “constitutional right to legally assisted suicide beyond that of any country in the Western world, beyond any serious proposal for reform in the Western world, and beyond the claim made in this very case.”

There were no real controls over the assistance sought by Rodriguez. Rather, a judge alone would decide, and his or her decision would look at the so-called controls only as guides that need not be followed in a particular case. There would be no review by another court of that judge’s action unless a charge were brought after the suicide against the person who assisted in violation of the Criminal Code (section 241).

There is no obligation on the part of any physician to provide a patient with suicide assistance. And, even if there were such a requirement, it is likely that “many doctors will refuse to assist, leaving open the potential for the growth of a macabre specialty in this area of Dr. Kevorkian and his suicide machine.”

(Dr. Jack Kevorkian, an American medical pathologist, assisted twenty people to commit suicide with the aid of a device he constructed. He was later tried and found guilty of second degree murder in the death of the last person he helped to commit suicide. He was sentenced to serve ten to twenty-five years in a maximum security prison. Paroled after eight years, he died in 2011.)

SECTION 7 RIGHTS

Justice Sopinka examined section 7 of the Charter, which he believed to be the legal foundation of Rodriguez’s strongest argument. It provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Sue Rodriguez argued that section 241(b) of the Criminal Code stopped anyone from helping her to end her life when she was no longer able to do so on her own. This denied her, she said, both her liberty and security of the person under section 7 of the Charter — rights that had important meaning for her:

the right to live “with the inherent dignity of a human person” her remaining life;

the right to control what happened to her body while she was living;

the right to be free from government interference in making basic personal decisions about the final stages of her life.

Justice Sopinka said the first two rights listed deal with liberty and security of the person under section 7 of the Charter. He wrote:

The effect of the prohibition in [section 241] is to prevent [Rodriguez] from having assistance to commit suicide when she no longer is able to do so on her own. She fears that she will be required to live until the deterioration of her disease is such that she will die as a result of choking, suffocation or pneumonia.... She will be totally dependent upon others.

Throughout this time, she will remain mentally competent and able to [understand] all that is happening to her. Although [medical] care may be available to ease the pain and other physical discomfort which she will experience, [she] fears the sedating effects of such drugs and [she] argues, in any event, that they will not prevent the psychological and emotional distress which will result from being in a situation of utter dependence and loss of dignity.

The Court majority stated that Rodriguez had a “security interest” within the meaning of section 7 of the Charter that was affected by the operation of section 241 of the Criminal Code. Again, speaking for the Court majority, Justice Sopinka wrote:

That there is a right to choose how one’s body will be dealt with, even in the context of beneficial medical treatment, has long been recognized by the common law. To impose medical treatment on one who refuses it constitutes battery [an unlawful act], and our common law has recognized the right to demand that medical treatment which would extend life be withheld or withdrawn.

In my view, these considerations lead to the conclusion that the prohibition in §241 deprives [Rodriguez] of autonomy [control] over her person and causes her physical pain and psychological stress in a manner which [violates] the security of the person....

A “DEFENCE” FOR VIOLATION?

To say that the security interest of Rodriguez is included within section 7 of the Charter is only the start of the analysis to determine whether that section has been violated. Look again at section 7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice [emphasis added].”

Put somewhat differently, there would not have been a violation of section 7 if Rodriguez had been denied her right to security of the person in accordance with a principle of fundamental justice.

But, what is a denial of fundamental justice?

Justice Sopinka said that not every law that fails to give respect to human dignity is a denial of fundamental justice. To rule otherwise would make the language of section 7 repetitive. That is, to so rule would make every denial of security of the person a denial of a principle of fundamental justice. Speaking for the Court majority, he stated that Parliament must have intended to do more than simply repeat the language of section 7. “This interpretation,” he said, “would equate security of the person with the principle of fundamental justice and [make] the latter redundant [repetitive and therefore without meaning].”

The Court majority said that the principle of fundamental justice related to protecting society. This, in turn, means that human dignity must be balanced with the protection of society

STATE INTEREST IN ASSISTED SUICIDE

Justice Sopinka found a strong state interest in other parts of the Criminal Code — an interest that reflects an important value: the sanctity of human life. He wrote:

[Section 241] has as its purpose the protection of the vulnerable who might be induced in moments of weakness to commit suicide. This purpose is grounded in the state interest in protecting life and reflects the policy of the state that human life should not [be lessened] by allowing life to be taken.

This policy finds expression not only in the provisions of the Criminal Code which prohibit murder and other violent acts against others [despite] the consent of the victim, but also in the policy against capital punishment and, until its repeal, attempted suicide. This is not only a policy of the state, however, but is part of our fundamental conception of human life.

Justice Sopinka looked to three areas for policy balance: (1) the history of suicide; (2) medical care at the end of life; and (3) the laws of other countries.

THE HISTORY OF SUICIDE

In reviewing the history of suicide, Justice Sopinka saw an ongoing principle that emphasized the sanctity of life. The fact that suicide and attempted suicide were no longer treated as crimes, he said, had more to do with the best way to deal with the problem. A state’s concern with preserving life remained.

MEDICAL CARE AT THE END OF LIFE

Justice Sopinka noted several then-recent decisions that permitted patients to withdraw life-support devices or treatments. Yet, he said, this could not be done unless patients clearly understood that their decision probably would cause death.

A decision of the United States Supreme Court was cited: Cruzan v. Director, Missouri Department of Health, 497 United States Supreme Court Reports 261 (1990). In question was the application of the protection of liberty as embodied in the 14th Amendment of the U.S. Constitution to a person in a vegetative state. The U.S. Supreme Court ruled that the state could require compelling evidence that withdrawal of medical treatment was, in fact, what the patient would have requested had she been able to do so.

Neither the Cruzan case nor others, Justice Sopinka wrote, involved the assistance of a third person in ending life. This the courts would have refused. He stated:

The basis for this [court] refusal is twofold. [F]irst, the active participation by one individual in the death of another is [by its nature] morally and legally wrong, and second, there is no certainty that abuses can be prevented by anything less than a complete prohibition.

Creating an exception for the terminally ill might therefore frustrate the purpose of the legislation in protecting the vulnerable because adequate guidelines to control abuse are difficult or impossible to develop.

THE LAWS OF OTHER COUNTRIES

Finally, Justice Sopinka considered the laws of other “Western democracies” at that time (1993). Apparently, he did this to determine if there were other laws comparable to the ruling sought by Sue Rodriguez. He said: “Nowhere is assisted suicide expressly permitted, and most countries have provisions expressly dealing with assisted suicide which are at least as restrictive as ours [section 241].”

He noted that the European Commission on Human Rights (a tribunal with many judicial powers over members of the European Union) had considered the appeal of a decision under the English Suicide Act of 1961, under which a member of a voluntary euthanasia association was charged and convicted of conspiracy to aid suicide by putting people in touch with others who then assisted them. The conviction was appealed on the ground of an invasion of the right to privacy as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Commission sustained the conviction.

Yet, Justice Sopinka recognized that there were exceptions, even within Western democracies. He pointed to the Netherlands where, at the time he wrote his opinion, he noted that assisted suicide and voluntary active mercy killing were officially illegal, and no prosecutions were pressed so long as there was compliance with medically established guidelines. He wrote: “Critics of the Dutch approach point to evidence suggesting that [unwilling] involuntary active euthanasia (which is not permitted by the guidelines) is being practised to an increasing degree. This worrisome trend supports the view that a relaxation of the absolute prohibition takes us down the slippery slope.”

He further noted that two American states, Washington and California, in 1991 and 1992 respectively, placed on the ballot propositions which would have permitted physician-assisted suicide under specific conditions to ensure voluntary and rational choice. Both propositions were defeated by the same margin — 54 to 46 percent. (As we shall see, such proposals, placed again on the ballot, were approved by voters.)

These were the conclusions reached by Justice Sopinka as to the balance between the interest of the individual and that of the state:

Canada and other “Western democracies” recognize as a central principle the sanctity of life. Where there are exceptions to that principle, they are limited and narrow. Within such exceptions, the interests of the individual and human dignity are rights protected by the Charter.

In the dying process, a line has been drawn by society between active and passive involvement by third persons. It is one matter for a patient to order the withdrawal of medical treatment even if this means the patient’s death. It is an entirely different matter for a third person to actively initiate the process of death.

The reason for this line of separation, said Justice Sopinka, goes back centuries in the common law: No one, including a physician, has the right to impose a procedure on another adult without that person’s consent. And, when the procedure is one of actively causing the death of another, even consent by the patient will not allow the physician the right to so act.

As noted, the vote of justices in the Rodriguez case was 5–4. The dissenting justices issued three different opinions, two of which (of some length) will be discussed.

THE DISSENT OF JUSTICE MCLACHLIN

Central to the dissent of then Justice McLachlin was the role of section 7 of the Charter. She set out the majority position in relation to section 7. Then, she turned to the Court’s decision in The Queen v. Morgentaler [1988], 1 Supreme Court of Canada Reports 30. There, she said, the provisions of the Criminal Code in relation to limiting therapeutic abortions only to hospitals — and only then when they were approved by hospital committees that did not necessarily follow common guidelines — were found to violate section 7 of the Charter.

To Justice McLachlin, the Morgentaler case offered precedent in the sense that its reasoning should have been followed in the Rodriguez case. She wrote:

It is sufficient for the purposes of this case to note that a legislative scheme which limits the right of a person to deal with her body as she chooses may violate the principles of fundamental justice under section 7 of the Charter if the limit is arbitrary….

This brings us to the critical issue in this case. Does the fact that the [law] which regulates suicide denies to Sue Rodriguez the right to commit suicide because of her physical incapacity hence a violation of section 7? Under the law Parliament has set up, the physically able person is legally allowed to end his or her life; he or she cannot be criminally penalized for attempting or committing suicide.

But the person who is physically unable to accomplish the act is not similarly allowed to end her life. This is the effect of §241 of the Criminal Code which criminalizes the act of assisting a person to commit suicide and which may render the person who desires to commit suicide a conspirator to the crime....

What is the difference between suicide and assisted suicide that justifies making the one lawful and the other a crime, that justifies allowing some this choice, while denying it to others?

The argument is essentially this. There may be no reason on the facts of Sue Rodriguez’s case for denying to her the choice to end her life, a choice that those physically able have available to them. Nevertheless, she must be denied that choice because of the danger that other people may wrongfully abuse the power they have over the weak and the ill, and may end the lives of these people persons against their consent.

Thus, Sue Rodriguez is asked to bear the burden of the chance that other people in other situations may act criminally to kill others or improperly sway them to suicide. She is asked to serve as a scapegoat [emphasis added].

The approach taken by the majority opinion, said Justice McLachlin, was wrong. Rather, one must bear in mind the goal of the law: Does it violate a particular person’s interest under section 7 of the Charter? “The principles of fundamental justice,” she said, “require that each person, considered individually, be treated fairly by the law.”

THE ROLE OF SECTION 1: BURDEN OF PROOF

Recall that section 1 subjects rights granted under the Charter to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. And, once it has been shown that a fundamental right (section 7) has been violated, the burden is on the government to justify the violation.

Justice McLachlin reviewed the reasoning of the majority and found it lacking in terms of meeting the tests of section 1:

A cloak for murder? Justice McLachlin said that the majority justified the law against assisted suicide as a cloak not to prevent suicide, but to prevent murder. It is doubtful, she stated, whether such law should be used to violate fundamental principles of justice. She added that it is not clear that a law against assisted suicide is necessary. She said that there already are laws dealing with murder and degrees of homicide. And, she suggested that if there were a danger that assisted suicide might be linked to involuntary deaths of the aged and disabled, other more proportionate ways may be found to deal with the problem than a total ban on assisted suicide.

Passing depression. Still, isn’t it possible that a desire for assisted suicide may spring from depression? And, couldn’t such depression be a “passing” matter? Or couldn’t it spring from the undue influence of others?

Justice McLachlin said these concerns centre on the question of consent. But how could these concerns relate to Sue Rodriguez? She was a person of sound mind who, all members of the Court seemed to acknowledge, was fully aware of the important facts relating to her life and the reality of suicide.

Still, Justice McLachlin said, suppose there were a need to check on consent — to make sure that such consent was with knowledge freely given. There were means for affecting such checks. Here Justice McLachlin cited the dissent of Chief Justice Lamer and, by inference, the dissent of the chief justice of the British Columbia Court of Appeal, noted before:

Physician-assisted suicide would be subject to court review under standards set out by the chief justice.

Counselling or advising people to commit suicide would remain a crime under section 241(a) of the Criminal Code.

There could be prosecution for murder or other forms of homicide.

Justice McLachlin wrote: “The cause of death having been established, it will be for the person who administered the cause to establish that the death was really a suicide to which the deceased consented.”

THE DISSENT OF CHIEF JUSTICE LAMER

According to Chief Justice Lamer, section 15 of the Charter was another basis in support of Sue Rodriguez. It provides: “Every individual is equal before and under the law and has the right to equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”

Chief Justice Lamer stated: “It is only on account of their physical disability that persons unable to commit suicide unassisted are unequally affected by §241(b) of the Criminal Code.... [Such persons] fall within the classes of persons covered by section 15(1) of the Charter, which contains no definition of the phrase physical disability. Persons whose movement is so limited are even to some degree the classic case of what is meant by a person with a disability in ordinary speech....”

But, are the physically disabled — that is, those seeking assisted suicide — deprived of something that can be called a benefit? The chief justice said: “Without expressing any opinion on the moral value of suicide, I am forced to conclude that the fact that persons unable to end their own lives cannot choose suicide because they do not legally have access to assistance is — in legal terms — a disadvantage [called a benefit under section 15 of the Charter] giving rise to the application of section 15(1) of the Charter....”

SECTION 1 OF THE CHARTER: A DEFENCE?

Under the reasoning of Chief Justice Lamer, a violation of section 15 of the Charter had occurred. He then asked whether there was a defence to a section 15 violation under section 1 of the Charter.

This is how the chief justice answered the question: He said that the legislative purpose of section 241 is the protection of vulnerable persons, whether they are consenting or not, from the intervention of others in decisions about the planning and commission of suicide. Underlying this purpose is the principle of preserving life — a valid purpose. Yet at the same time, he said, Parliament gave to physically able persons the right to choose suicide.

The problem and the fault in terms of finding a valid defence under section 1, the chief justice stated, was in an overly broad section 241. That provision was not framed in terms of the vulnerable. Rather, it covered all the physically disabled — including those fully able to decide for themselves as to suicide free from any outside pressure.

He said that Rodriguez, on the record, was one of those disabled but clearly able to make her own rational decision concerning assisted suicide. He wrote:

Sue Rodriguez is and will remain mentally competent. She has testified at trial to the fact that she alone, in consultation with her physicians, wishes to control the decision-making regarding the timing and circumstances of her death. I see no reason to disbelieve her. Nor has the Crown suggested that she is being wrongfully influenced by anyone.

Ms. Rodriguez has also emphasized that she remains and wishes to remain free not to avail herself of the opportunity to end her own life should that be her eventual choice. The issue here is whether Parliament is justified in denying her the ability to make this choice lawfully, as could any physically able person [emphasis added].

THE MAJORITY RESPONDS

Justice Sopinka, for the Court majority, argued that section 1 of the Charter provides a complete defence to any section 15 violation. Indeed, he said, the only point of difference with the chief justice in the Rodriguez case was whether section 241(b) could be drafted in less sweeping terms. For the Court to do so, he said, would create an exception for persons like Rodriguez, and it would limit the flexibility that Parliament ought to have in dealing with “this contentious and morally laden issue.” He continued:

There is no halfway measure that could be relied upon with assurance to fully achieve the legislation’s purpose; first because the purpose extends to the protection of the life of the terminally ill.... Part of this purpose, as I have explained ... is to discourage the terminally ill from choosing death over life. Secondly, even if the latter consideration can be stripped from the legislative purpose, we have no assurance that the exception can be made to limit the taking of life to those who are terminally ill and genuinely desire death.

CONTROLS FOR CONSENT: THE CHIEF JUSTICE

Chief Justice Lamer would have declared section 241(b) of the Criminal Code in violation of the Charter. However, he would have allowed time for Parliament to revise the law to meet the concerns of the Court. Also, he would have allowed Sue Rodriguez, and persons in her situation, a remedy. They could choose assisted suicide if they met the following conditions, which in many ways were similar to those the chief justice of the British Columbia Court of Appeal would have set. Meeting such conditions would in the view of Chief Justice Lamer be a constitutional exemption:

They would have to apply on their own for permission to a superior court.

Close to the time when they wanted assisted suicide, they would have their treating physician and an independent psychiatrist certify that the applicant was competent to make a decision to end his or her life, and that the decision was made freely.

At least one of the signing physicians must be present at the time the applicant commits assisted suicide.

The physicians must certify that the applicant was or would become physically incapable of committing suicide unassisted, and that they have informed him or her that there is a right to change his or her mind at any time.

Between the time of court approval and the assisted suicide, one of the certifying physicians must examine the applicant daily to confirm that which earlier was certified in court. Any approved certification would last only for a fixed period of time.

The act causing death must be that of the applicant, and not of anyone else.

YOU BE THE JUDGE

EASING PAIN, OR HOMICIDE?

The case that follows was suggested in oral argument before the Supreme Court of Canada in the Rodriguez case.

THE FACTS

Sarah H., like Sue Rodriguez, suffers from Lou Gehrig’s disease. Like Rodriguez, she is forty-two and married, with a child. She is highly intelligent. She has had a full career as a research scientist. Her physicians estimate that she has about two to eight months to live.

She wants to live her life as fully as possible. To her, this means having the mental alertness to complete her research work and being with her family as a wife and mother. She wants to avoid what she calls mind-numbing medications — even though they are painkillers — until the last possible moment.

Paralysis, which is part of the disease, has accelerated. She is physically inactive, except for slow speech and eye movement. She wants what she has called death with dignity. She wants assistance in dying.

Sarah H. is aware of the Rodriguez case. She has consulted with her physician and requested the following of him:

On my instructions, I want you to inject into me pain killers. I will do this at a point when it will no longer matter to me if my life continues. You are to continue injecting such pain killers until I feel that the pain, which is quite unbearable, has ended. You have my permission to provide such care, even if it results in death. It is understood that I am not asking you to cause my death. My instructions are intended only to ensure that I have the least amount of pain as possible.

THE ISSUE

If the doctor administers the pain killers as Sarah H. requested, and if she dies as a result, may a charge of unlawfully assisting in the suicide of another in violation of section 241(b) of Criminal Code be laid?

POINTS TO CONSIDER

Section 241(b) of the Criminal Code makes it an offence to assist another to commit suicide.

A physician, like any other person, may be charged with an offence under the Criminal Code.

In the Rodriguez case, a majority of the Supreme Court of Canada upheld section 241(b) from an attack under the Charter.

A physician has the right to care for his or her patient and, in that regard, subject to the patient’s direct instructions to the contrary, to do what is necessary to ease that patient’s pain.

As we shall see, a unanimous Supreme Court of Canada in the Carter case which follows overruled the Rodriguez decision. But, let us assume that the law relating to homicide remains.

DISCUSSION

Whether the doctor would be open to a charge under section 241 of the Criminal Code depends on the answer to this question: What was the intent of the doctor in giving the patient pain killers?

If the doctor’s intent was to kill Sarah H., then the doctor could be charged and presumably convicted under section 241 (or the law relating to homicide). If the intent was to ease her pain knowing, at the same time, that the injections would likely speed her death, then the doctor probably could not be convicted under section 241 (or the law relating to homicide).

Justice Sopinka, speaking for the Court majority in the Rodriguez case, said that there could be important problems of proof for the Crown prosecutor. Based on the facts relating to Sarah H., it would not be an easy burden for the Crown to carry in obtaining a conviction against the doctor so long as the doctor did not inject any significantly greater amount of pain killers than other doctors in comparable cases.

In the Rodriguez case, Justice Sopinka stated:

The fact that doctors may deliver palliative care [to ease pain] to terminally ill patients without fear of sanction [punishment], it is argued, [limits] to an even greater degree any legitimate distinction which can be drawn between assisted suicide and what are currently acceptable forms of medical treatment.

The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard.

However, the distinction drawn here is one based upon intention. In the case of palliative care, the intention is to ease pain, while in the case of assisted suicide, the intention is undeniably to cause death....

In my view, distinctions based upon intent are important, and in fact form the basis of our criminal law.

While factually the distinction may, at times, be difficult to draw, legally it is clear. The fact that, in some cases, the third party will, under the guise of palliative care, commit euthanasia [mercy killing] or assist in suicide and go unsanctioned due to the difficulty of proof, cannot be said to render the existence of the prohibition fundamentally unjust.

THE DEATH OF SUE RODRIGUEZ

Sue Rodriguez chose the date and place of her death: February 12, 1994, at her home on Vancouver Island, British Columbia. Neither her husband nor her nine year-old son — nor any other family members or friends — were present, although her husband was informed of the date. The only persons who were with her and could describe what occurred were an unnamed physician and an outspoken ally in Rodriguez’s attempt to legalize physician-assisted suicide: Svend Robinson, an NDP Member of Parliament.

Following Rodriguez’s death, Robinson notified her physician — a palliative care physician who had examined her a few days before and pronounced her as being “comfortable.” He also notified the police and called Rodriguez’s friends. The physician came to Rodriguez’s home, examined her body, and pronounced her dead. She then notified the coroner.

The unnamed physician had left at the point when Rodriguez was dead. The pathologist who conducted an autopsy on February 16 announced that he could not determine the cause of death. The coroner then turned to toxicological examination. The results of that examination determined that Sue Rodriguez had died from consuming a mixture of prescription drugs.

Robinson refused to divulge the method of death. He was quoted as saying: “Sue remained serene and calm throughout, and in total control. She faced her death with incredible courage and dignity. I held her in my arms. She peacefully lapsed into unconsciousness and stopped breathing about two hours later. The [unnamed] doctor then left.”

Sgt. Wayne Squire of the Sydney RCMP detachment, investigating the death, said: “Mere presence at the scene of an offence is not enough to support a criminal charge. As long as he [Robinson] didn’t take an active role in the death, then we don’t see how he can be involved.”

Still, Robinson, though asserting that he had not violated the law, retained a prominent Toronto criminal lawyer to act for him if it became necessary. However, no criminal charges were laid by the Crown in the death of Sue Rodriguez.

AN ONGOING CANADIAN DEBATE

On April 21, 2010, the Canadian House of Commons voted on a private member’s bill brought by Bloc Québécois MP Francine Lalonde to legalize assisted suicide. While substantial media coverage attended the bill, it failed by a vote of 228 to 59. The vote was open. The parties did not attempt to discipline members to vote for or against.

Steven Fletcher, a Conservative Cabinet minister who was a quadriplegic, abstained in the vote — a position he had announced earlier. He said:

Mr. Speaker, I rise on a point of order. I would like to be recorded as abstaining on this bill. The reason is I believe end of life issues need to be debated more in our country. I believe that life should be the first choice but not the only choice, and that we have to ensure that resources and supports are provided to Canadians so that choice is free.

I believe, when all is said and done, the individual is ultimately responsible. I want to make this decision for myself, and if I cannot, I want my family to make the decision. I believe most Canadians, or many Canadians, feel the same. As William Henley said in his poem Invictus: “I am the master of my fate. I am the captain of my soul.”

In 2014 Fletcher introduced two private members bills that would have allowed for physician-assisted suicide. The bills failed to be considered by Parliament. But, as we shall see, the issue came before the Supreme Court of Canada, which, in some cases, afforded Charter protection for physician-assisted suicide.

TWO ETHICISTS, TWO POINTS OF VIEW

Two prominent academics set out different views on euthanasia in the Globe and Mail. A partial statement of those views are included here only for the purpose of assisting in what might be an ongoing discussion of shaping public policy within the context of the Charter.

The first is that of Margaret Somerville, professor of law and medicine at McGill University. (Her comments were in response to a letter which appeared in the Globe and Mail. However, her comments stand by themselves.) The second is that of Arthur Schafer, director of the Centre for Professional and Applied Ethics at the University of Manitoba.

MARGARET SOMERVILLE SPEAKS

Anthony Westell is wrong when he wrote on this page that he has a right to die. In legal theory, that would mean that someone else has a duty to kill him and, even if euthanasia and assisted suicide were legalized, there would be no such obligation. But he certainly can, and arguably may die when he wants to by committing suicide. If we accept that he may do so (that is, the law regards him as having a legal privilege to do so), then the rest of us must not interfere with the exercise of that privilege. That means that treatment must not be imposed if he is brought to a hospital emergency room or paramedics are called because he is in the process of dying by suicide.

Such an approach is contrary to current medical practice. In deciding whether to change that practice, we would consider not only Mr. Westell’s claims to exercise his legal privilege, but also the harmful effects that respecting that privilege would have on others. These include health-care professionals who will be forced to stand by and watch him die, and the impact of their doing that on the ethos of medicine as a whole. They also include individuals who attempt suicide as a cry for help, or who want to die at the time but later are grateful they were treated.

Mr. Westell fails to consider these or any other wider implications of his claim. On the contrary, he assumes no clear public interest is served by prohibiting euthanasia and assisted suicide. His argument for assisted suicide is based entirely on intense individualism — it’s my death and nobody else’s business how it occurs, especially not the state’s business to interfere with through law....

Mr. Westfell ... argues that the burden of proof should be on those who oppose the civil liberty ... of a civilized death. Until the enactment of the Charter of Rights and Freedoms, the burden of proof was on those wanting to change the law to show that change was justified. But by framing claims that a given law breaches Charter rights and therefore should be changed reverses this burden. Those accused of breaching such rights have the burden of proving they are justified, within the terms of the Charter, in doing so.

This change of the burden of proof matters, because its allocation is not a neutral act. When there is equal doubt as to whether one or the other course of conduct should prevail, the persons with the burden of proof lose their case. Fortunately, a majority of the Supreme Court of Canada ruled in the Sue Rodriguez case that the prohibition on assisted suicide in the Criminal Code did not breach Charter rights.

Mr. Westell clearly does not understand the distinction between legalization and decriminalization. Suicide was decriminalized by Parliament, not legalized. Consequently, his argument that it can’t be illegal to assist in this legal act is misguided....

Finally, Mr. Westell concludes, as I will, with one important reason that, in stark contrast to him, I see as a powerful reason not to legalize euthanasia or assisted suicide. Once the principle [allowing these interventions] will be established ... why [should] civilized death be available only to the dying (Globe and Mail, December 2, 2004)?

ARTHUR SCHAFER SPEAKS

When I began teaching ethics to undergraduate medical students in 1970, the hot-button issues were passive and indirect euthanasia. Passive euthanasia referred to withholding or withdrawal of life support, from the motive of mercy, usually at the request of a dying patient. Doctors used to worry about both the ethics and the legality of hastening a patient’s death by pulling the plug.

Indirect euthanasia was the term in use to describe the administration of large, sometimes very large, doses of analgesia with the direct aim of relieving pain but in the knowledge that, indirectly, this pain relief was likely to depress the patient’s respiratory system and thereby bring on death more quickly.

Passive euthanasia is now called appropriate care. Today it is universally practised in Canadian hospitals, and no physician has been charged with a criminal offence for withholding or withdrawing life support, whether at the request of a dying patient, in compliance with a living will, or at the request of the patient’s family when the patient was no longer competent....

In 1992, Nancy B., a 25-year-old quadriplegic, told a Quebec Superior Court judge: I am fed up with living on a respirator. It’s no life. The court ruled in her favour, and she was disconnected from life support. This case helped to establish that, in Canada, a competent adult has the right to refuse life-prolonging treatment.

Indirect euthanasia is now seen as merely a form of palliative care. A physician who denies adequate pain relief to a dying patient because of fears that the analgesic might cause death would be considered unprofessional. Today, many Canadian hospitals have palliative care wards in which the overall treatment goal is to keep the patient comfortable rather than to prolong life. In these wards and in hospices for the dying, there is little hesitation in administering whatever dose of painkiller is required for comfort, even when the foreseeable consequence is hastened death.

One important lesson to be learned from these historical debates is that not all slopes are slippery. Opponents of so-called passive euthanasia balefully predicted that, if doctors were allowed to withhold or withdraw life support, we would immediately find ourselves on a slippery slope. Doctors who pulled the plug on dying patients would become desensitized or even brutalized. Hospitals would become cruel and dehumanized places. Patients would come to think of their doctors as executioners. The fundamental social value of respect for life would be debased. The elderly and the vulnerable would be at high risk of merciless killing.

But experience has shown that what happened was exactly the opposite of what was predicted by the naysayers: Doctors and hospitals have become kinder and gentler, patients’ wishes are better respected than previously, and society has come to accept the importance of individual autonomy at the end of life.

Let’s consider where the euthanasia debate stands today. When palliative care doesn’t provide needed relief from severe and intractable suffering, a growing number of hospitals now offer sedation to unconsciousness: the patient is rendered terminally unconscious and food and fluids are then discontinued. For many people, however, terminal sedation seems an undignified way to end one’s life. Instead, they seek physician-assisted suicide.

Physician-assisted suicide has been legal in Oregon for 11 years [at the time of writing this comment in 2009] and accounts for about one out of every thousand deaths a year. But, although it’s not used often, one in six patients discusses this option with their family, and one in fifty raises it with their doctor. In other words, the safeguards appear to work. Few people opt for physician-assisted suicide, but many take comfort from the knowledge that, if their lives became unbearable, they can request — and be given — assistance to die.

Of course, as doctors sometimes acknowledge, euthanasia and assisted suicide are practised secretly in both the United States and Canada. Where these practices are illegal, they are practised in the dark and thus more likely to result in mistakes and abuse.

Critics widely predicted that legalizing physician-assisted suicide would be a slippery slope to cutbacks in palliative care. Society would reason: Why offer expensive comfort care to suffering patients when it’s cheaper to hasten their deaths? In practice, the opposite has occurred. Oregon legislation requires that dying patients be offered a full range of options, and the state has become a leader in palliative and end-of-life care.

Is it too much to hope that our legislators might learn from recent history? When it comes to end-of-life care, Canadians should be able to choose among a full range of options, including first-rate palliative care and physician-assisted suicide. With proper safeguards in place to ensure openness and accountability, there’s no reason to deny people the help they want and need (Globe and Mail, November 5, 2009).

RODRIGUEZ OVERRULED: THE CARTER CASE

One part of the majority opinion in the Rodriguez decision noted that, at the time, there had been no Canadian, American, British, or European legislative endorsement of the right to die by means of physician-assisted suicide. However, since Rodriguez, the topic has remained a subject for discussion and legislative action — as well as court review.

The majority of the Supreme Court of Canada noted that, in effect, one person, namely, Sue Rodriguez, was asking the Court to overturn an established line of important cases. If the Court had acquiesced in the position set out by her, it would have gone further than she requested. The Court would have ruled as to all persons disabled, not just as to Rodriguez, and it was she — and she alone — who sought relief from the Court. This became a point to distinguish the Rodriguez from the Carter case.

It may be argued that once the Supreme Court of Canada has spoken on an issue, that is the end of the matter and the issue cannot be revisited. If the facts are essentially the same, then the first case should govern. In law, this principle, long established, has a name: stare decisis.

The primary complainants in the Carter case were two women suffering from terminal illnesses who sought physician-assisted suicide. Both died before the Court rendered its decision.

Can it not be said that the facts of Rodriguez and Carter were essentially the same? The answer certainly must be “yes” to the extent that they related to specific individuals suffering from the same life-taking illness. But, was the public policy criminalizing physician-assisted suicide the same in the two cases? Indeed, was it the same in terms of what the Supreme Court of Canada referred to as the Western democracies?

It is here that the Supreme Court of Canada drew a line of difference (not the only one, but one to be sure) between Rodriguez and Carter. Again, bear in mind that the Court in Carter spoke as “the Court” — not as individual judge opinions.

The Carter decision was the opinion of all nine justices. It was an opinion circulated among the nine justices and one to which all nine justices individually agreed. This was not an opinion of an individual justice. Nor was it, as in Rodriguez, an opinion signed off on by a majority of five against a minority of four justices.

In Carter, this was how “the Court” explained the rule of stare decisis:

The doctrine that lower courts must follow decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis [that is, to maintaining a balance].

Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate....

Both conditions were met in this case. The trial judge explained her decision to revisit Rodriguez by noting the changes in both the legal framework for section 7 [of the Charter] and the evidence on controlling the risk of abuse associated with assisted suicide.

The Supreme Court of Canada had before it a detailed trial record of the facts and the law. It was that record which the Court (all nine justices) reviewed and found the trial court’s findings essentially reasonable on the major issues. What the Court did not allow was a new trial.

The Court turned to the fundamental issues presented under the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the supreme law of the land. Included in section 7 is the right to life. This is what the Court said as to how that right impacts death:

We do not agree that the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot “waive” their right to life. This would create a “duty to live,” rather than a “right to life,” and would call into question the legality of any consent to the withdrawal or refusal of life-sustaining treatment.

The sanctity of life is one of our fundamental societal values. Section 7 [of the Charter] is rooted in a profound respect for the value of human life.

But section 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “is no longer seen to require that all human life is preserved at all costs” [citing Rodriguez, Justice Sopinka]. And it is for this reason that the law has come to recognize that in certain circumstances, an individual’s choice about the end of her life is entitled to respect....

In Carter, the Supreme Court reviewed the findings of the trial court as well as relevant cases which also had been set out by the trial court. The Supreme Court stated:

We agree with the trial judge. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty. And by leaving people like Ms. Taylor [a party in the Carter case] to endure intolerable suffering, it impinges on their security of the person.

The trial court did not abandon the Rodriguez case. Rather, the trial judge, based on the facts and the law, placed Rodriguez in the context of the case before her, namely, as an individual suffering from ALS and unable to take that last measure for self-help — suicide — without the intervention and assistance of a physician. The Supreme Court stated in Carter: “The trial judge, relying on Rodriguez, concluded that the object of the prohibition [against physician-assisted suicide] was to protect vulnerable persons from being induced to commit suicide at a time of weakness.”

In one sense, it can be said that the Supreme Court of Canada jettisoned Rodriguez. In another sense, however, it can be said that the Court interpreted Rodriguez to accommodate the object of the law, namely, protection of the vulnerable. Put differently perhaps, the Court stated:

The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature. The focus is not broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammelled.

Applying this approach, we conclude that the prohibition on assisted dying is overbroad. The object of the law, as discussed, is to protect vulnerable persons from being induced to commit suicide at a moment of weakness. Canada conceded at trial that the law catches people outside this class.

[Counsel for Canada stated] “It is recognized that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives.” The trial judge accepted that Ms. Taylor was such a person — competent, fully-informed, and free from coercion or duress. It follows that the limitation on their rights is in at least some cases not connected to the objective of protecting vulnerable persons. The blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.

REMEDY: COURT AND PARLIAMENT

Based on the facts and the law, the Supreme Court of Canada found that prohibiting physician-assisted suicide within the meaning of the Criminal Code (section 241(b) and section 14) did infringe the section 7 Charter rights of Gloria Taylor (who had died) in a “manner not in accordance with the principles of fundamental justice, and that the infringement is not justified under section 1 of the Charter.” The Court continued:

To the extent that the impugned laws deny the section 7 rights of people like Ms. Taylor they are void by operation of section 52 of the Constitution.... It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

The appropriate remedy is therefore a declaration that section 241(b) and section 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life, and (2) has a grievous and irremediable medical condition (including a illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. The scope of this declaration is intended to respond to the factual circumstances of this case. We make no pronouncement on other situations where physician-assisted dying may be sought.

The declaration was suspended for twelve months from the date of the decision. In that time, Parliament and/or the provincial legislatures would be able to enact laws and/or regulations as to physician-assisted dying that fit within the guidelines set by the Court.

BILL 52: SIMILAR TO THE CARTER RULINGS?

In 2014 the National Assembly of Quebec became the first province to legalize doctor-assisted death as part of comprehensive end-of-life legislation. The Quebec act, titled Bill 52, had the support of 80 percent of the MNAs (the Quebec legislators). Quebec Premier Philippe Couillard (Liberal), whose party formed the government of Quebec, allowed his caucus to vote their conscience rather than being held to party policy. The twenty-two MNAs who voted against Bill 52 were all members of the ruling party, including ten Cabinet ministers.

The Quebec law, itself, had been proposed by the Parti Québécois, which had formed the previous government of the province. Parti Québécois MNA Véronique Hivon, who had put forward that bill, said the newly enacted law should not be seen as “medical aid to die” but “end-of-life care.”

This is what Bill 52 provides:

It applies to terminally ill adult patients.

They must have an incurable illness.

They must be in an advanced state of irreversible decline in capacities.

They must be in constant and unbearable physical and psychological pain that doctors believe impossible to relieve through medication.

The patient request for end-of-life procedure must be supervised by the attending physician and approved through consultation with the hospital’s medical team.

At any time the patient may withdraw a signed request for medical aid in dying.

A GOOD AGE TO DIE?

Dr. Ezekiel Emanuel, a renowned American oncologist (cancer specialist), has said that, in his view, seventy-five is a “good age to die.” In 2014 Dr. Emanuel held the Chair at the University of Pennsylvania in medical bioethics and health policy.

Why seventy-five? Dr. Emanuel said: “A good life is not just about stacking up the years and living as long as possible. People need to focus on the quality of life. Setting an actual date for a good time to die helps you focus on what is important in your life.”

Dr. Emanuel, fifty-seven when he said this, apparently is in good health. He has no terminal illness and he has no plans to commit suicide. He opposes physician-assisted suicide. Rather, he proposes to simply let nature take its course. When he reaches seventy-five, he will refuse all medical tests and treatments, including the blood pressure medication that he now takes.

In 2010 a Dutch citizens’ initiative — “Out of Free Will” — demanded that professional help be allowed to those over the age of seventy in ending their lives if they simply felt tired of living. Those supporting the proposal included former ministers, legal scholars, artists, and physicians.

Who might be included in this group? The Daily Mail reported: “They might include widows and widowers overwhelmed by grief, those unwilling to face the frailties of extreme old age, or people determined to ‘get out while they’re ahead’ and meet death on their own terms. The assistants who administered the deadly cocktail of sedatives would need to be certified, campaigners said.”

Under current Dutch law, euthanasia by doctors is only legal in cases of “hopeless and unbearable” suffering.

LAW WITHOUT END?

Suppose physician-assisted suicide is legalized, having been approved by the Supreme Court of Canada and the Parliament. What impact might that have on the legal liability of physicians?

Physicians assisting another to commit suicide may still find themselves subject to legal liability from disgruntled relatives of the deceased. Physicians, at least under the terms of the Quebec legislation, must operate under that law. For example, there must be medical findings of unbearable pain by the patient seeking to end her/his life. This fact must be proved by the attending physician. Such proof may have to be made at trial — not always an easy task (both emotionally and as a matter of costs).

PUBLIC OPINION

Since Rodriguez, polls have been taken to determine public opinion concerning physician-assisted suicide. The Angus Reid Institute announced in November 2014 the results of its then new poll of 1,504 Canadians. It stated that Canadians “overwhelmingly support physician-assisted suicide. Indeed, a hard core of such support — so-called ‘enthusiasts’ — support physician-assisted suicide even in cases that do not involve pain or imminent death, but simply a wish to die.”

The National Post, referring to pollsters, stated: “These enthusiasts, making up a solid 37% of the population, are very supportive of the right to die across a wide range of scenarios, from a sense of meaninglessness or being a burden to one’s family or even being an inmate on a life sentence who wishes to end it all early, all the way to late stage terminal disease with intense pain (National Post, December 16, 2014).”

A SLIPPERY SLOPE?

There was no individual opinion in the Carter case. As noted, the decision was signed as the opinion of “the Court.” This gave the ruling added weight. It was an “institutional” decision. Questions remain as to how the decision will be implemented by Parliament and the provinces.

But, this does not mean that the decision uniformly is accepted — especially as to what the future might bring. What are the limits to legislative and/or court action? Is it possible for the ruling in the Carter case to be extended to euthanasia as applied to children or the mentally incompetent?

Andrew Coyne wrote:

What can one say about a ruling that finds a right to death in a section of the constitution devoted to the right to life — that does so in breezy defiance, not just of Parliament’s stated preferences, but of the Court’s own ruling in a similar case, rendered two decades before? The Court goes to elaborate and unconvincing lengths to suggest it had been moved by changes in “the matrix of legislative and social facts” since then. The reality, one suspects, is rather simpler. It did it because it wanted to (National Post, February 13, 2015).

In 2014 the Belgian King signed into law a bill enacted by that nation’s Parliament that allows a critically ill child as young as twelve to be put to death by his/her doctor with the consent of a psychiatrist or psychologist who certifies that the child is conscious and aware of what is being done. This law is similar to one enacted in the Netherlands. Both were approved by large majorities of their respective legislatures.

EDITORIAL COMMENT

The Globe and Mail made the following editorial comment on Carter v. Canada (Attorney General):

“It is a crime in Canada to assist another person in ending her own life.” Those are the opening lines of the Supreme Court’s unanimous decision striking down that very section of the Criminal Code. “People who are grievously and irremediably ill,” write the judges, “cannot seek a physician’s assistance in dying and may be condemned to a life of severe and intolerable suffering. A person facing this prospect has two options: She can take her own life prematurely, often by violent or dangerous means, or can suffer until death comes from natural causes. The choice is cruel.”

The Supreme Court’s remedy for this cruel choice comes down on the right side of justice. The judges have given Parliament a year to rewrite the Criminal Code to permit willing physicians to assist those who wish to end their lives, but only under a narrow set of circumstances. And the principles it has laid out for crafting a new law are sound. In fact, they read like the terms of Quebec’s physician-assisted suicide law, Canada’s first.

The law was passed last year with widespread support, including from this newspaper, but it ran smack into a legal wall: It permitted what criminal law forbade. On Friday, the Supreme Court resolved that legal conflict by ordering a rewrite of the Criminal Code.

The Supreme Court says that the old ban on physician-assisted suicide was too broad. In cases where the person in question is an adult of sound mind and clearly wishes to end their life, and where that person is suffering from a severe and incurable medical condition that causes intolerable suffering, the court says that the law must no longer forbid a physician from assisting in ending their life.

But the court is also careful to say that its ruling should not be read as obliging doctors to assist a suicide, even under the conditions of clear consent, incurable illness and intolerable suffering. The Charter [of Rights and Freedoms] is a careful balancing act of rights and obligations, and doctors have rights too, notably rights of freedom of religion and conscience.

When Parliament rewrites the law, it should empower willing physicians to offer this treatment to appropriate patients. It must not, however, force any physician to do so. The Supreme Court has struck the right balance (Globe and Mail, February 6, 2015).

SHAPING A NEW LAW

Note what the Supreme Court of Canada did not order: It did not require any governmental authority to rewrite the law, either criminal or civil. It simply suspended the coming into effect of its order for one year from the date of its decision.

In that time the government of Canada could, if it so desired, study and consider what steps, if any, it might take to regulate physician-assisted suicide.

Or the government could do nothing. The result of doing nothing, among other things, would be that the criminal law provision, as it had stood, would be of no force and effect. This could result in the provinces — outside the criminal law — drafting regulations for physician-assisted suicide in the context of safe medical practice.

Dr. Chris Simpson, president of the Canadian Medical Association, stated that Canadian doctors want a “seat at the [drafting] table to ensure legislation is drafted in a way that protects vulnerable people (Toronto Star, February 6, 2015).”

André Picard wrote:

Civil libertarians are suggesting that no laws are required to regulate the provision of physician-assisted death. Rather, it should be an individual decision made between the patient and the physician, like any other medical procedure.

Others believe that more formal rules are required to avoid abuses — like hastened death being imposed on the frail elderly, people with profound disabilities, and those with severe mental illnesses. (All of which would be made unethical, it should be made clear.) (Globe and Mail, February 6, 2015.)

AN EARLY RESPONSE FROM DOCTORS

Sheryl Ubelacker, in Canadian Press, provided an early response from Canadian doctors to the Court’s decision. She set out some of the questions being asked by medical organizations and the answers provided:

Question: What do doctors now (February 2015) tell suffering patients who ask them for help to die?

Answer: The Canadian Medical Association (CMA) is advising its 80,000 members that the law prohibiting medically assisted death is in effect for a year, giving government time to revamp the legislation. “So nothing changes over the next year while the details are being sorted out,” said CMA president Dr. Chris Simpson.

“In general, we want the process to be pretty extraordinarily robust and careful with a lot of steps,” said Simpson, including safeguards to protect the vulnerable and to ensure the person seeking to end their life isn’t being influenced or coerced by others, even subtly.

“So I would envision multiple steps with more than one doctor, maybe even a panel or some sort of a board that evaluates all of the complexities of this. Because ultimately, at the individual patient level ... it’s not an emergency that needs to be done right away. There’s time for a process to be thoughtful and ensure that only the people who truly should have medical aid in dying get it.”

Question: What about a patient who is physically incapable of giving themselves a fatal drug dose — because of quadriplegia or advanced ALS, for instance?

Answer: Simpson calls this one of the “important nitty-gritty details” yet to be worked out. It’s a question that needs to be explored by doctors groups, legislators and legal experts as a framework for how medical aid in dying will actually be delivered.

“A lot of doctors regard the prescribing of a lethal substance as the moral equivalent to actually administering a lethal substance,” he said. And while hooking up an IV and giving a fatal dose could be done by any trained physician, “many doctors are saying there should be another class of clinicians who does only this.”

“I’m not sure that really absolves anybody because the hard work is in the decision-making. The hard work is not in hooking up the IV.”

Question: The Supreme Court ruling says Canadians who are enduring intolerable physical or mental suffering have the right to seek medical help to end their lives. But what constitutes mental suffering and where would the line be drawn?

Answer: Padraic Carr, president of the Canadian Psychiatric Association (CPA), said that’s one area of the judgment, in particular, that needs further legal clarification:

“Every patient is different and it’s unclear who would meet that legal test or what they define as intolerable, enduring suffering,” he said of the nine justices’ unanimous decision.

Carr said their ruling speaks to four points in which physician-assisted death may be considered: where a patient is competent; clearly consents; has what they define as a grievous and irremediable condition; and has enduring intolerable suffering.

“I think it would be very difficult for a patient who has a severe mental illness to meet these four criteria.”

Question: People with clinical depression and certain other psychiatric disorders are often suicidal. How would doctors tease out whether a patient’s desire to die is a result of their illness and might be alleviated with treatment?

Answer: Carr said the court ruled that a patient must be “competent” to obtain medically assisted death, a term which psychiatrists call the “capacity to make decisions.”

Capacity means a patient must: be able to make a choice; have the ability to understand the relevant information around that choice; must appreciate their situation and the consequence of making the choice; and demonstrate that they can manipulate that information rationally, he said.

“So depression and other psychiatric illnesses, including psychotic disorders, can certainly influence your insight and judgment and they can also affect that ability to appreciate your situation and to manipulate that information rationally. So all of those would be included in any capacity assessment.”

While the 4,700-member CPA has no official position on the court’s ruling as yet, Carr said he can’t imagine a scenario in which a patient would meet all those criteria and their situation be thought hopeless.

“It would be a rare instance in psychiatry where a condition would be considered irremediable. Even when someone is called clinically resistant, there are still other treatments that may work” (Canadian Press, February 13, 2015).

SWITZERLAND: “SUICIDE TOURISM”?

In the Carter case, the Supreme Court of Canada specifically noted the role of a Swiss “suicide clinic.” Swiss law has permitted assisted suicide since 1942. The law does not require a physician to be present, and it does not require the recipient to be a resident of the country. What the law does forbid is “inciting and assisting suicide ... for selfish motives.” This would appear to include “personal gain.”

Lethal drugs may be prescribed as long as the recipient takes an active role in the drug administration. While a mentally-ill person may claim the right to assisted suicide, consent may require examination and approval by a psychiatrist.

A study published in The Journal of Medical Ethics in 2014 looked at assisted suicides in Zurich, where Dignitas, the most prominent right-to-die organization, is based. The researchers found that 611 people from thirty-one countries had committed assisted suicide from 2008 to 2012. Since 2009 the number of those arriving from other countries for help with suicide each year has increased steadily. Nearly half of all cases involved people with neurological disorders such as Parkinson’s disease and multiple sclerosis — diagnoses that are generally not terminal. Nearly 60 percent of the 611 were women.

All forms of active euthanasia, such as administering lethal injections, remain prohibited in Switzerland. Swiss law only allows providing the means to commit suicide.

REFERENCES AND FURTHER READING

* Cited by the Supreme Court of Canada.

Belluck, Pam. “Switzerland: More Foreigners Drawn by Assisted Suicide, Study Shows.” New York Times, August 21, 2014.

Branswell, Helen. “Canadian Doctors, Many Hesitant About Assisted Death, Want Role in Legislation.” Toronto Star, February 6, 2015.

Brean, Joseph. “Not a Controversial Issue in Canada Anymore, Majority Support Assisted Suicide, Poll Finds.” National Post, December 16, 2014.

Colvin, Eric. “Section Seven of the Canadian Charter of Rights and Freedoms.” Canadian Bar Review 68 (1989): 560.*

Coyne, Andrew. “Supreme Court Euthanasia Ruling Marks the Death of Judicial Restraint.” National Post, February 13, 2015.

Dworkin, Robert. Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. New York: Knopf Publishers, 1993.*

Euthanasia, Aiding Suicide and Cessation of Treatment. Law Reform Commission of Canada, Working Papers 20, 28. Ottawa: Minister of Supply and Services Canada, 1982, 1983.*

McLuhan, Sabina. “How Did Sue Rodriguez Die?” The Interim, March 27, 1994.

Norwood, Frances. The Maintenance of Life: Preventing Social Death through Euthanasia Talk and End-of-Life Care — Lessons from the Netherlands. Durham, NC: Carolina Academic Press, 2009.

“Offering a Choice to the Terminally Ill.” New York Times, March 15, 2015.

Otlowski, Margaret. “Mercy Killing Cases in the Australian Criminal Justice System. Criminal Law Journal 17 (1993):10.*

Penrose, Mary Margaret. “Assisted Suicide: A Tough Pill to Swallow.” Pepperdine Law Review 20 (1993): 689.*

Picard, André. “Next Step in Assisted Suicide: Ensuring It Can Be Done Humanely.” Globe and Mail, February 6, 2015.

“Renowned Doctor Ezekial Emanuel Says 75 Is a Good Age to Die.” CBC.ca, December 7, 2014.

Schafer, Arthur. “The Great Canadian Euthanasia Debate.” Globe and Mail, November 5, 2009.

Schneider, Keith. “Dr. Jack Kevorkian Dies at 83; Backed Assisted Suicide.” New York Times, June 3, 2011.

Séguin, Rhéal. “Quebec First Province to Adopt Right-to-Die Legislation.” Globe and Mail, October 12, 2014.

Somerville, Margaret. “It’s Not My Right to Die When I Want To.” Globe and Mail, December 2, 2004.

“The Supreme Court Gets It Right on Assisted Suicide.” Globe and Mail, February 6, 2015.

Ubelacker, Sheryl. “What Are The Rules Of Assisted Death In Canada? Doctors Respond.” Canadian Press, February 13, 2015.

Chapter 5

End of Life

The Carter and Rodriguez cases are important decisions in understanding the role and impact of the Charter of Rights and Freedoms on Canadian society.

In this final chapter our focus is on the limits of the Court’s decision in Carter and the power and responsibility of the citizenry, especially through provincial and local governments as well as public-interest organizations (such as hospitals and hospices) and the courts, in the context of Court’s ruling. Recall that the issue before the courts centred on the right/obligation of physicians to assist their patients in dying.

The patients involved in Carter were two women suffering “irremediable” (hopeless) diseases. They were either helpless or close to being helpless, and they were in pain. They wanted a physician’s help to end their lives. Some would say they wanted what is called palliative care (comfort). Others might say they simply wanted to end their lives at a point where life was no longer livable.

The Criminal Code, an instrument over which the federal government under the Constitution has authority, declares that no one, including physicians, may assist another to commit suicide. Palliative care — giving patients drugs to ease their pain, even though such drugs might hasten death — could be seen as falling outside these criminal law sections. Health care, however, lies within the authority of the provinces.

Among the questions raised in this chapter are:

What is palliative care?

Is palliative care an alternative to physician-assisted death?

May patients compel doctors to offer assisted suicide?

Are there means under the Charter for a legislature to enact laws that override a Supreme Court of Canada decision?

DEFINITION OF PALLIATIVE CARE

The following is a description of palliative care set out by the World Health Organization (WHO), a specialized agency within the United Nations concerned with international public health:

Palliative care is an approach that improves the quality of life of patients and their families facing the problems associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual. Palliative care:

provides relief from pain and other distressing symptoms;

affirms life and regards dying as a normal process;

intends neither to hasten or postpone death;

integrates the psychological and spiritual aspects of patient care;

offers a support system to help patients live as actively as possible until death;

offers a support system to help the family cope during the patient’s illness and in their own bereavement;

uses a team approach to address the needs of patients and their families, including bereavement counselling, if indicated;

will enhance quality of life, and may also positively influence the course of illness;

is applicable early in the course of illness, in conjunction with other therapies that are intended to prolong life, such as chemotherapy or radiation therapy, and includes those investigations needed to better understand and manage distressing clinical complications.

Palliative care for children represents a special, albeit closely related field to adult palliative care. WHO’s definition of palliative care appropriate for children and their families is as follows:

Palliative care for children is the active total care of the child’s body, mind and spirit, and also involves giving support to the family.

It begins when illness is diagnosed, and continues regardless of whether or not a child receives treatment directed at the disease.

Health providers must evaluate and alleviate a child’s physical, psychological, and social distress.

Effective palliative care requires a broad multidisciplinary approach that includes the family and makes use of available community resources; it can be successfully implemented even if resources are limited.

It can be provided in tertiary care facilities, in community health centres and even in children’s homes.

A Doctor’s Duty

Medical doctors have a special responsibility to their patients and to the province under which they are licensed. While the Hippocratic Oath, dating back centuries, is no longer recited by graduating doctors in most jurisdictions, a general oath, having the central point that they will do no harm to their patients, often is taken. The obligation of medical doctors is to use their skills to help their patients, whether in hospitals, in clinics, or in their own private practices.

We have seen issues that have conflicted doctors and their patients. Sometimes these issues rise to the level of life/death choices. For example, parents and/or their children who, for personal reasons, will not take vaccines thus endanger not just themselves but the community at large. And families, faced with the death of a loved one whom doctors believe is beyond saving, will not allow the machines that enable breathing and life to be disconnected although the medical staff want to allow that patient to die.

In past chapters we have seen how the courts and individuals have drawn lines that shape decisions. In this final chapter, we look at how the medical profession in Canada sees its role, the role of patients, and the role of the state in coming to decisions as to life and death. In a real sense, the role of the doctor in relation to patients is both tested and defined in this human drama.

Often, but not always, the law has vested physicians and/or hospitals with the right to set procedures that can impact end-of-life patient decisions. Here we speak of physician wants and objections voiced individually and through their professional associations, such as the Canadian Medical Association.

This book has centred on the role of the courts — and especially the Supreme Court of Canada — in deciding the legality of laws and actions, especially in terms of how they square with the Charter of Rights and Freedoms, part of the Constitution of Canada and, as such, the highest law of the land.

We note that there are, of course, means under the Charter for a legislature — for Parliament, by way of example (section 33 of the Charter) — to enact laws that override a Supreme Court of Canada decision, such as that in the Carter case. But, even here, there are practical and legal restraints on the exercise of such override powers.

Section 33 of the Charter states:

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

It is, for example, possible for Parliament under section 33 of the Charter to override the Supreme Court’s Carter decision. But there are time limits on such override decisions. And, perhaps most importantly, there is this practical question: The government of the day must ask itself whether the political costs of such an override are worth the political price. This is especially so, bearing in mind the fact that the Carter decision was one handed down by the full Court, not individuated opinions of single justices. It is, in effect, an institutional decision of those elders vested by law and the Constitution with authority to judge and decide such issues.

But what was it that the Supreme Court decided in Carter and, it may be asked, what is our role as citizens in giving further shape to the Court’s rulings (including overriding such judgments)?

YOU BE THE JUDGE

RELIGION/ETHICS AND LEGAL DUTIES

THE FACTS

The law examined by the Supreme Court of Canada in the Carter case was one about physician-assisted death. The Court ruled that two challenged provisions under that law were void to the extent they conflicted with the Charter.

The two initial complainants whose lives were ending as a result of illness passed away before the case was decided. There were a number of institutional interveners allowed to make submissions to the Court. Among the interveners was the Canadian Medical Association (the CMA), a professional association with powers that include disciplining of physician members that could result in suspension or revocation of the license to practise medicine.

For purposes of this hypothet, we will assume that three Canadian medical practitioners who spend a considerable amount of time practising in the emergency rooms of hospitals in the cities where they live have concerns about the effect of the Carter decision on their medical practice. All of the three doctors have either religious or ethical concerns about their obligations in relation to the decision.

THE ISSUE

Does the Carter decision impose a legal obligation on doctors to make assisted death available if such action violates their religious and/or their ethical beliefs? This was a point raised by a number of interveners in the Carter case and noted by the Supreme Court of Canada.

POINTS TO CONSIDER

The concerns of the doctors are real.

If they were required to assist patients to die, they would have to refuse such orders on personal grounds.

As a practical matter, it would be difficult for the hospitals where the doctors practise to find replacements for them.

DISCUSSION

In the Carter decision, the Supreme Court addressed this question. The Court stated:

A number of the interveners asked the Court to account for physicians’ freedom of conscience and religion when crafting the remedy in this case. The Catholic Civil Rights League, the Faith and Freedom Alliance, the Protection of Conscience Project and the Catholic Health Alliance of Canada all expressed concern that physicians who object to medical assistance in dying on moral grounds may be obligated, based on a duty to act in their patients’ best interests, to participate in physician-assisted dying. They ask us to confirm that physicians and other health-care workers cannot be compelled to provide medical aid in dying. They would have the Court direct the legislature to provide robust protection for those who decline to support or participate in physician-assisted dying for reasons of conscience or religion.

The Canadian Medical Association reports that its membership is divided on the issue of assisted suicide. The Association’s current policy states that it supports the right of all physicians, within the bounds of the law, to follow their conscience in deciding whether or not to provide aid in dying. It seeks to see that policy reflected in any legislative scheme that may be put forward.

While acknowledging that the Court cannot itself set out a comprehensive regime, the Association asks us to indicate that any legislative scheme must legally protect both those physicians who choose to provide this new intervention to their patients, along with those who do not.

In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid.

What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note — as did Beetz J. in addressing the topic of physician participation in abortion in R. v. Morgentaler — that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief….

In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.

A MATTER OF EXEMPTION?

Suppose a hospital is owned and operated by a religious institution. It is clear that the hospital functions under a code of religious beliefs and ethical standards common throughout all of the institution’s many hospitals in Canada and, indeed, much of the world.

What the Supreme Court of Canada said in Carter applies to all of the organization’s hospitals in Canada. A problem has arisen in some of the religious institution’s hospitals. These hospitals want an “exemption.” They want the right to turn patients in a terminal condition away — to deny them hospital admission if they insist on a right to physician-assisted death within the meaning of the Carter decision.

In effect, such prospective patients would be required to sign a waiver giving up any right to physician-assisted death. Full disclosure to the patients and/or their families would be given as to the nature of the waiver.

How would a court decide the question?

Listen again to what the Court said in Carter. It defined its role narrowly in relation to the case it decided. There were provisions of the Criminal Code before it for interpretation. And, the Court ruled that those provisions were in violation of the Charter.

What followed from the Court’s decision is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures to implement. And, this they must do while also reconciling patient rights with the Charter.

It would seem from the Court’s language that if a question arose in terms of how that reconciliation has been effected, the matter may be presented to a court for determination.

The Court declared the two questioned provisions of the Criminal Code invalid. But it suspended this declaration of invalidity for twelve months. The Court stated:

We would issue the following declaration, which is suspended for 12 months.... Section 241(b) and section 14 of the Criminal Code unjustifiably infringe section 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

We have concluded that the laws prohibiting a physician’s assistance in terminating life (Criminal Code, section 241(b) and section 14) infringe Ms. Taylor’s section 7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under section 1 of the Charter.

To the extent that the impugned laws deny the section 7 rights of people like Ms. Taylor they are void by operation of section 52 of the Constitution Act, 1982. It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

WHY THE DELAY? WHAT THE COST?

Usually, there is no easy path to accessing the Supreme Court of Canada. It is not unusual for a matter to take as long as five years to reach the Court. Bear in mind that the Carter case began in 2009 and in one sense ended with the Supreme Court of Canada’s decision in 2015 with a declaration of suspension for twelve months.

While the Carter case was “special” in the sense that it presented new and important issues for the Supreme Court of Canada and the numerous institutional interveners in the case, the following data from the Supreme Court of Canada statistics (2004–14 tables) should be noted:

Application for hearing to the Supreme Court: from a minimum of 4.1 months to a maximum of 7.1 months.

Decision by the Supreme Court allowing a hearing: from a minimum of 7.7 months to a maximum of 9.4 months.

Decision of the Supreme Court: from a minimum of 3.7 months to a maximum of 4.4 months.

Ordinarily, costs are an important factor to litigants especially in matters reflecting public policy. The burden imposed, for example, on the British Columbia Civil Rights Association was heavy from the start to the end in the sense of the decision of the Supreme Court of Canada opinion discussed in chapter 4. Precedent seemed to weigh against those who brought the case for remedy to win an award for costs.

In Carter, the Supreme Court of Canada seemed to break with tradition. It awarded full legal costs to those who both brought the litigation to trial and appeal. In part, this is what the Court stated in an extensive consideration of the cost question:

The appellants ask for special costs on a full indemnity basis to cover the entire expense of bringing this case before the courts.

The trial judge awarded the appellants special costs exceeding $1,000,000 on the ground that this was justified by the public interest in resolving the legal issues raised by the case.... [T]he trial judge relied on Victoria (City) v. Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28, at para. 188, which set out four factors for determining whether to award special costs to a successful public interest litigant: (1) the case concerns matters of public importance that transcend the immediate interests of the parties, and which have not been previously resolved; (2) the plaintiffs have no personal, proprietary or pecuniary interest in the litigation that would justify the proceeding on economic grounds; (3) the unsuccessful parties have a superior capacity to bear the cost of the proceedings; and (4) the plaintiffs did not conduct the litigation in a abusive, vexatious or frivolous manner. The trial judge found that all four criteria were met in this case.

The Court of Appeal saw no error in the trial judge’s reasoning on special costs, given her judgment on the merits. However, as the majority overturned the trial judge’s decision on the merits, it varied her costs order accordingly. The majority ordered each party to bear its own costs.

The appellants argue that special costs, while exceptional, are appropriate in a case such as this, where the litigation raises a constitutional issue of high public interest, is beyond the plaintiffs’ means, and was not conducted in an abusive or vexatious manner. Without such awards, they argue, plaintiffs will not be able to bring vital issues of importance to all Canadians before the courts, to the detriment of justice and other affected Canadians.

Against this, we must weigh the caution that “[c]ourts should not seek on their own to bring an alternative and extensive legal aid system into being:” Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38, at para. 44. With this concern in mind, we are of the view that Adams sets the threshold for an award of special costs too low. This Court has previously emphasized that special costs are only available in “exceptional” circumstances: Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 48. The test set out in Adams would permit an award of special costs in cases that do not fit that description. Almost all constitutional litigation concerns “matters of public importance.” Further, the criterion that asks whether the unsuccessful party has a superior capacity to bear the cost of the proceedings will always favour an award against the government. Without more, special costs awards may become routine in public interest litigation....

In our view, with appropriate modifications, this test serves as a useful guide to the exercise of a judge’s discretion on a motion for special costs in a case involving public interest litigants. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. In those rare cases, it will be contrary to the interests of justice to ask the individual litigants (or, more likely, pro bono counsel) to bear the majority of the financial burden associated with pursuing the claim.

Where these criteria are met, a court will have the discretion to depart from the usual rule on costs and award special costs.

Finally, we note that an award of special costs does not give the successful litigant the right to burden the defendant with any and all expenses accrued during the course of the litigation. As costs awards are meant to “encourage the reasonable and efficient conduct of litigation” (Okanagan Indian Band, at para. 41), only those costs that are shown to be reasonable and prudent will be covered by the award.

Having regard to these criteria, we are not persuaded the trial judge erred in awarding special costs to the appellants in the truly exceptional circumstances of this case. We would order the same with respect to the proceedings in this Court and in the Court of Appeal.

The Carter decision was handed down by the Supreme Court of Canada on February 6, 2015. A month later, André Picard, a Globe and Mail columnist, wrote: “The notion that parliamentarians need more than the 12 months granted them by the Supreme Court of Canada to draft a new law on physician-assisted death beggars belief. Legislators have one job: to make laws. They should get to it without delay.”

In Picard’s view, there had been delay:

The prime minister hinted that he might invoke the notwithstanding clause of the Charter (section 33, discussed above). But, he then “backed away from that position.”

The parliamentary secretary to the justice minister said that an extension beyond the twelve-month period would be requested because that was not enough time to deal with the issue. Then, he “backtracked.”

The Liberals proposed an all-party committee to deal with the question, but this was defeated by the Conservatives, who offered no alternative other then “a vague promise to hold public consultations.”

Consultation with the public, said Picard, was merely “foot-dragging.” He concluded:

To refresh the memories of our too-busy-to-draft-laws legislators: In the Carter case, the top court struck down two sections of the Criminal Code: Section 14, which says that “no person is entitled to consent to have death inflicted upon him” and section 241(b), which says that anyone who “aids or abets a person to commit suicide” commits a crime.

In short, the Supreme Court said that it is unconstitutional to deny gravely ill patients choice in how they die. But it also placed some fairly strict parameters on who can choose to hasten death — only a competent adult with an irremediable condition that causes enduring, intolerable suffering.

The court said competency can be judged easily enough — after all, physicians make those decisions every day. The ruling is clear that assisted death must be voluntary, and it cannot be chosen by children or those who are incompetent. The only unresolved issues are whether the law should apply to mature minors who have the right to make other treatment decisions and whether someone can invoke assisted death at a later time with an advanced directive (Globe and Mail, March 3, 2015).

ANOTHER SLIPPERY SLOPE?

In effect, the task as to how the twelve-month “grace period” will be used largely seems to be in the hands of the federal government. Yet, as Picard suggests, this is strange. After all, while criminal law is a federal matter under the Constitution, health care is within the authority of the provinces.

In enacting Bill 52, Quebec set out criteria that would allow physician-assisted death similar to the parameters stated the Supreme Court of Canada in Carter. Further, the Quebec law provides for end-of-life palliative care. And, toward that end, Quebec provides for a commission to monitor the law. A register is established for patients to file their advance directives relating to end-of-life care.

Through such patient directives, the individual sets a path for her/his medical team well in advance of any later stage of individual incompetence.

In North America, Oregon has had physician-assisted end-of-life laws since 1997 (called Death with Dignity). Courtney Campbell, a medical ethics expert who teaches at Oregon State University, said that most of his students (undergraduates) “wonder what’s wrong with the other States in the United States ... that don’t have something like [Oregon’s end-of-life law]? It’s just become part of the landscape here.”

The Oregon law requires that the person seeking assisted death be fatally ill with an estimation of less than six months of life remaining before she/he is likely to die. A doctor signs a prescription for a lethal drug that the individual must individually take.

The Oregon law requires detailed reporting. The death rates have climbed slowly since the law was enacted — from sixteen in 1971 to seventy-one in 2013 (two in every one thousand deaths in the state). Sixty-three doctors gave 122 lethal prescriptions in 2013. About a quarter of those receiving such prescriptions never used them (National Post, February 6, 2015).

PALLIATIVE CARE: A LIMITED SUPPLY

For more than 70 percent of Canadians, palliative care is not available. Following the Carter decision, Harvey Max Chochinov, director of the Manitoba Palliative Care Research Unit, wrote:

There, the choices will come down to settling for sub-optimal care; dislocating from friends and family to seek out better care elsewhere; or, if one is so inclined, considering medically hastened death.

We are about to become a country that extends patients the right to a hastened death, but offers no legislative guarantees or assurances that they will be well looked after until they die.

As Canada deliberates its response to the court’s decision, federal and provincial governments will need to make substantive investments in hospice and palliative care in order to offer patients and families choices that are equitable, compassionate and real (Toronto Star, February 18, 2015).

The Canadian Medical Association (CMA) has called for the creation of a national palliative care plan in the report “End-of-Life Care: A National Dialogue.” Dr. Louis Hugo Francescutti, CMA president, stated that any legislation allowing physician-assisted suicide does not negate the need for proper palliative care services. He said: “Canadians expect more of the health care system. They expect more of our politicians to provide access to quality palliative care for all Canadians, regardless of what your postal code is” (Globe and Mail, June 10, 2014).

REFERENCES AND FURTHER READING

Arvay Q.C, Joseph J., and Alison Latimer. “Cost Strategies for Litigants: The Significance of R. v. Caron.” Supreme Court Law Review (2nd edition) 2011: 54.

Blackwell, Tom. “Avoid a ‘Wild West’ of Mercy Killing, Say Those Who’ve Grown Up With Assisted-Suicide Law.” National Post, February 6, 2015.

Chochinov, Harvey Max. “Canada Failing on Palliative Care.” Toronto Star, February 18, 2015.

Dale, Michelle. “Palliative Care, Done Right: Relief for Pain, Solace for the Spirit.” Globe and Mail, February 6, 2015.

Giles, David. “Understanding the Charter’s Notwithstanding Clause.” globalnews.ca, February 6, 2015.

Goldman, Dr. Brian. “Palliative Care vs Assisted Suicide: A False Dichotomy?” CBC.ca/radio, December 4, 2014.

Picard, André. “How are MPs Too Busy to Correct Right-to-Die Injustice?” Globe and Mail, March 3, 2015.

Weeks, Carly. “Canada Needs National Palliative Care Plan, CMA Urges.” Globe and Mail, June 10, 2014.

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