Let's Talk About: The Participants In The Criminal Justice System

Over the next few weeks, I will present a series of periodic blogs on the role of the main participants in the criminal justice system. Although a seemingly simple topic choice, to actually describe, define, and delineate these participants is a challenge.

We can all identify and recognize who they are: trial judge, prosecutor, defence lawyer, police, victim, and accused. But the real challenge comes in explaining what they do and why they do it. Often, the public perception of a participant's raison d'etre differs from the legal construct. It is when this disconnect occurs, when the public's expectations are unfulfilled, that cause public discontent with the criminal justice system.

These blogs will attempt to bridge the gap between society's assumptions and the legal requirements. This does means the discussion may reproduce the prototype of the participant, a general sketch or a likeness, which will not mimic every actual individual participant in the system. But, having a standard for which one can compare, will enhance our understanding of the criminal justice process.

The Power of Apologies

In two previous postings, It Never Hurts To Say You're Sorry and Is Saying Sorry Enough, I discussed the power of apologies from a child's first lesson in contrition to Bill Clinton's successful reincarnation as a two-term President. I also touched upon the codified version of apology, as remorse, in the Criminal Code the politicized collective apologies for large-scale human rights violations.

I revisit this issue with yesterday's 70th anniversary of the Japanese attack at Pearl Harbour and a Globe and Mail article entitled After Japan Says Sorry, A look At 5 Powerful Apologies In History. The article identifies these apologies under 5 headings with accompanying photographs. The first heading refers to the Holocaust with the 2008 visit of German Chancellor Angela Merkel to the Israeli Knesset or Parliament where she said:

"The Holocaust fills us with shame. I bow my head before the survivors and I bow my head before you in tribute to the fact that you were able to survive."

The speech did not go without controversy as some members of the Knesset boycotted the speech, which was given in German.

The next apology was from the UK Prime Minister Cameron to Northern Ireland for the 1972 Bloody Sunday Massacre. This 2010 apology, given after the release of the Saville Report into the massacre, called the action of UK military as "unjustified and unjustifiable." unfortunately, the hyperlinks to the report are now disabled.

The next collective apology is truly a global one:apologies to the indigineous peoples of Australia and Canada by the respective governments. As discussed in my previous blogs, the formal and public apology given to the Aboriginals of Canada by Stephen Harper was definitely Canada's most powerful, and long-awaited, apology. Certainly, this apology, even three years later, has continues with the inquiry of the Truth and Reconciliation Commission of Canada.

The next apology feels both too late and too premature: the Pope's apology on behalf of the Catholic Church for the widespread sexual and physical abuses of children as almost daily new allegations of coverups of the abuse surface.

The final apology listed is for Apartheid with De Klerk's 1993 admission, which fell short of a full apology. 

This brings us back to Pearl Harbour and Japan. Today, the Japanese government apologized for the mistreatment of Canadian prisoners of war during World War II. Canada's Veteran Affairs Minister, Steven Blaney, who attended the formal apology in Japan, eloquently reminds us of the power of an apology when he stated:

This important gesture is a crucial step in ongoing reconciliation and a significant milestone in the lives of all prisoners of war...It acknowledges their suffering while honouring their sacrifices and courage...Today's apology will help in healing as our two great countries move forward

Thus, the power of an apology holds the power to heal, either when uttered in the privacy of a relationship or when proclaimed in the highest political institutions, and this is the best reason to for saying "sorry."

Does the Occupy Movement Have Injunctionitis?

Yesterday, Chief Justice Neil Wittmann of the Alberta Court of Queen's Bench released his judgment on the City of Calgary's application for an injunction against Occupy Calgary. This action was the last of a number of Canadian cities attempts to remove the Occupy movement from public spaces. Both the City of Toronto, in Batty v. City of Toronto, and the City of Vancouver, in City of Vancouver v. O'Flynn-Magee, were legally successful in doing so. Now, the City of Calgary can be added to that list as Justice Wittmann allowed the injunction against the Occupy Calgary movement with an order they remove their tents by Friday.

In my previous two postings found here and here, I explained the three step legal test for granting an injunction and the exceptional circumstance where Charter values lie at the core of the request. Where a case involves Charter violations, the injunction application, and the three part test, must be analyzed within the Charter context, even though application is not a directly a Charter claim. Such was the situation in the City of Calgary v. Bullock (Occupy Calgary) and in the O'Flynn-Magee case.

As previously discussed, even if the Charter provides the context for an injunction application, the Court weighs this against the public interest in enforcing valid laws, particularly where the laws are being disobeyed. It is worthwhile, however, to recall that the "public interest" is represented by both the City, as the "protector" of public interest, and by Charter claimants, who identify violations of society's fundamental rights and request the government to respect those rights for all of us.

In the end, the court must balance all of these competing views to determine the just and appropriate decision, whether it be a traditional Charter claim or an injunction application in the Charter context. Although different in aspect, what these cases do share is the finding of violations of s.2(b), freedom of expression, under the Charter.

Despite this finding, as required by our Charter under s.1 and in so many of our legal tests, it is the balancing between government and individual rights which results in the courts' upholding the government's right to allocate public space. Read my previous posting on this issue at The Occupy Movement and The Government's Right to Allocate Public Space.

Thus, in the Calgary decision, the possibility of applying for and receiving a permit to stay in the public area is the appropriate and reasonable method for allocating public space, which makes the City's legislation restricting the Occupy Calgary s.2(b) Charter rights just and appropriate in a free and democratic society.

What the next steps will be for the Occupy movement will remain to be seen but ultimately, it is the public interest, and who can protect it appropriately, that seems to be the winner.

Injunctions In The Charter Context: Part Two

Yesterday, I posted a brief backgrounder on injunctions and the special case which presents when the Charter provides the context. Today, I will discuss how courts apply the three step injunction test where the exercise of Charter rights results in disobedience of the a purportedly unconstitutional law. In those cases, the applicant for the injunction is the government, who according to case law, is the "protector of public rights and the public interest."

Step one: There must be a serious case to be tried. This step is typically easy to fulfill as most injunctions involve serious unresolved issues. Certainly, in the case of a Charter violation from the application and enforcement of laws, there is a serious matter to determine.

Step two: Is there irreparable harm caused if the application is refused? In the civil context, it is a question of monetary compensation, but in a Charter violation harm is difficult, if not impossible, to quantify. As a result, this step, is also easy to fulfill.

Step three: On a balance of convenience, which party suffers greater harm by the making of the order? In this step, the court considers the actual Charter harm or breach complained of by the claimants. However, case law also suggests deference must be given to the government's legislation, which necessitates obedience to its precepts until the constitutional validty is determined. Thus, it has been argued, that the court should be reluctant to refuse an injunction or order to conform with the law.

Some cases have refused to give such deference in a Charter case, particularly where constitutionality of the legislation is at issue and where fundamental rights, such as freedom of expression, are at risk. Indeed, it can be argued that both the government and the Charter claimants are acting within the public interest: the government in upholding law and the claimants for protecting fundamental rights important to all. 

Now that the three step injunction analysis in the Charter context is clarified, tomorrow, I will apply this test to the occupy movement.

Injunctions and the Charter of Rights and Freedoms

It is difficult to read an article on the occupy movement and not read a reference to an injunction. An injunction, is a legal remedy, whereby a court orders a party to refrain from acting in a particular way that infringes the rights of another party. Although usually negative in aspect, a mandatory injunction can require the rights violator to take positive steps to respect the rights of another party. Typically, injunctions are only granted in exceptional circumstances and only when monetary damages fail to remedy the situation.

When constitutional rights are at issue, an injunction may be ordered to ensure a Charter violation is not repeated. In cases involving constitutionally suspect legislation, injunctions have also been used to order a party to obey the legislation until the validity of the law has been fully determined. Thus, injunctive relief has been sought by the government where sports' bars refused to comply with a City by-law banning smoking in restaurants. It has also been used to prohibit homeless people from erecting tents in public parks. Most recently, as we read in the media almost daily, injunctive relief has been requested to prohibit the occupy movement from occupying public space by erecting tents and by staying in the public areas overnight.

The test for whether or not an injunction should be granted, similar to a stay of proceedings application, is articulated in the Supreme Court of Canada RJR - MacDonald case. The three-step determination is made on the basis of the following:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.  Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.  Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.  

Additionally, as the issue is whether or not the law is constitutionally valid, a court considering an injunction in a Charter context must be mindful of the possible continuation of Charter breaches should the injunction be allowed. As briefly touched upon in my previous blog "Teachable Moments" And The Charter of Rights and Freedoms, in a case involving Charter rights, Charter values imbue and colour the legal principles. In those instances, the black letter of the law transforms into a kaleidoscope of possibilities with our fundamental values and beliefs providing the backdrop. It is in this heady context that the court must apply the three-step injunction analysis.

In tomorrow's blog, I will take this test and review it in light of the Charter possibilities to explain how injunctive relief looks in the kaleidoscope of Charter values and shed some light on the injunctions granted and still being sought against the occupy movement.