Caution - Objects May Appear Closer In The Rear View Mirror: The Optics Of Tougher Impaired Driving Laws

In October, I discussed the "let's get tough" on impaired driving legislation proposed by new Premier Alison Redford in two blogs; A Lesson On How To Get Tough With Impaired Driving and Impaired Driving: A Little Diversion. With the dual announcement this week from Alberta, where new legislation mirroring B.C.'s efforts in the area has been tabled in the Legislature, and from British Columbia, where impaired driving fatalities have decreased by 40% since the new legislation has been in force, a review is in order. I will discuss some of the legal difficulties with the legislation and some of the social difficulties of connecting the effects of the new legislation with an absolute decrease in impaired drivers.

Many of the legal criticisms focus on the lack of due process afforded individuals when they are stopped by police enforcing the new law. Sanctions may be imposed without recourse to the criminal justice system and the determination of penalty is not administered by a judicial authority but by the police. By giving the police the decision making power usually confined to judges, the procedure not only circumvents the justice system but circumvents the legal rights protections we all enjoy under the Charter, particularly the s. 11(d) right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." As discussed in a previous blog, There Is No Road To Redemption, this type of crime prevention adheres more closely to the arcane "crime-control model" of Herbert Packer.

Another area of concern involves legal issues with the breathalyzer devices themselves and the inaccuracies connected to the machines. Thus, the lack of due process is compounded by the unreliability of the basis for the out-of-court sanction.

Still other legal critics accuse the police in British Columbia of selective enforcement: police are not enforcing the impaired driving sections found in the Criminal Code, opting instead to enforce the provincial legislation only. The result of such policy not only diverts from the justice system those offenders who would not normally be before the Court, as their blood alcohol concentration or BAC is below the legal limit, but also diverts those offenders who have a BAC above the legal limit and should face a criminal charge. In those circumstances, the criminal law, as properly wielded by the Federal Government under the Constitution Act and under the Federally enacted Criminal Code, is not being enforced.

On the other hand, there are benefits to the accused by this diversion from the criminal justice system. The offender is not subject to the risk of a criminal record if convicted. A criminal record not only carries substantial societal stigma but can result in a loss of employment and difficulties travelling across borders. 

Effectively then, the new legislation "decriminalizes" impaired driving without federal government input and without public input. 

How did this happen? The persuasive, yet misleading, use of statistical evidence may provide the answer as to why this legislation has been so readily accepted by the public and by the government. Returning to the B.C. experience, that law was first introduced in April 2010 as, according to the government, tougher measures were needed to combat the increase in impaired driving cases. This reasoning was, in fact, at odds with Statistics Canada's July 2011 report, which found an overall decrease of the rate of impaired driving throughout Canada with an 8% decrease in the rate of impaired driving in B.C. from 2009 to 2010. In Alberta the 2009 to 2010 rate decrease was 14%.

Despite these seemingly contradictory statistics, the recent announcement from B.C. suggests that alcohol related fatalities have decreased by 40%. In absolute terms, the statistic is astounding and very persuasive. In reality, however, this kind of statistical "evidence" of success must be approached with caution. As Mark Twain purportedly stated "There are three ways not to tell the truth: lies, damned lies, and statistics."

Although such a blanket dismissal of statistics is not warranted, it does give one pause for thought: statistics, as numbers, do not lie, but it is the interpretation of statistics, as offering support or dismissal of a claim or cause, which can be manipulated. Certainly, in the criminal justice arena, such statistical evidence is admitted with caution, particularly in the area of DNA evidence. As stated by Justice Finlayson in the 1998 Ontario Court of Appeal case in Terceira:

At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence.

Ultimately, statistics cannot provide a definite or absolute connection between the new legislation and the decrease in alcohol-related fatalities. The decrease can be explained in many ways such as educational programs deterring people from drinking, increased law enforcement by police, a general declining trend as observed by Statistics Canada, or increased awareness/deterrence through those very government media announcements we have heard touting the new law and its benefits. A quick internet search reveals a long list of B.C. town news sites, big or small, and even a few MLA websites as well, reporting on the B.C. government's recent statistical news.

In the end, we need to be aware that what we see and hear may not be what we are actually getting. In this, as with so much public policy, perhaps only time will tell. 

The Occupy Movement & The Charter of Rights And Freedoms

Read all the postings on the  Occupy Movement and the Charter:  Freedom of Expression and Occupying Public Space Part One  & Part Two: Occupying Public Space & Creating A Positive Out of A Negative & The Occupy Movement and The Government's Right to Allocate Public Space

 

The Occupy Movement and The Government's Right to Allocate Public Space

Justice can move at a dizzying pace: since Friday, the Occupy movements in Victoria, Vancouver, and Toronto have been ordered by the Courts to obey municipal law and take down their tents. The issue, at least according to B.C. Supreme Court Justice Schultes who granted the Victoria injunction, is the government's right to allocate public space. 

In his oral reasons for granting the extraordinary injunctive remedy, Schultes concluded the City of Victoria, by requesting the order, was "within its rights to mange public spaces in the public interest" and is "free to come to the conclusion that any encampment, wherever and however situated in the square, is not in keeping with the best public use of that space." 

In a previous post from November 4 on Creating A Positive Out Of A Negative, I suggested that the BC Supreme Court in Victoria (City) v. Adams created a Charter right to shelter. Adams involved very specific evidence of a lack of shelter beds for the homeless, causing the homeless to erect a Tent City in a public park. In that case, the Court found an infringement of s.7 right to life, liberty and security of the person as a result of the lack of shelter. In the Court's view, the case was not about property rights. Nor was it about the right to camp in public spaces. It was about human dignity and self-fulfillment of the homeless, who had no alternative but to sleep in temporary shelters in a City park.

How does the Occupy movement situation differ? Although homelessness and poverty does appear to be a theme in the Occupy movement, it is certainly not the reason why all of the members are living in tents in a public space. Certainly the movement would be unable to produce the same kind of evidence as in Adams, which was persuasive in its breadth and depth. Does that mean the case is all about property rights, which is not Charter protected?

Schultes's reasons may provide an answer. By framing the issue as one of public allocation, Schultes was no doubt referring to the Supreme Court of Canada Committee for the Commonwealth of Canada case decided in 1991. There, the members of the Committee were handing out their propaganda at an airport contrary to airport regulations. The Committee members argued their s.2(b) freedom of expression rights were infringed. Although the Court agreed the freedom was infringed, they were split on various issues of the case. One of the issues discussed was the special use, if any, of governmental property as public space.

According to the Court, public space should not be treated like private property as the government held the property for the benefit of the public. Indeed, in Adams, Madam Justice Ross found the public included the homeless. However, the SCC cautioned on a formulistic view of a "public forum" analysis and preferred a contextual approach involving the balancing of the interests of the individual and the interests of the government. Thus, in Chief Justice Lamer's (as he then was) view when expression is restricted in a public place, the legal analysis must examine the

interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it".

As it is public lands, Lamer, C.J. found it is the "citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose."

What does this mean for the Occupy movement? This means as stated by Justice Brown, in granting injunctive relief to the City of Toronto, that "protestors have ample means left to express their message, including continued use of the park (but no structures or "midnight hours"), and other Torontonians can resume their use of the park" too. Therefore, the right to freely express oneself does not include exclusive use of the space chosen to do it. In other words, there is room in the sandbox for everyone.

In the end, isn't that a good thing? The more the merrier and the more who will hear the message to be conveyed.

Blog Update: The Limits Of Expression

In the November 19 blog entitled A Message Of Tolerance, I discussed the most recent decision by Alberta Provincial Court Judge Bascom to quash a University of Calgary trespass notice against William Whatcott for handing out anti-gay literature on campus. This case is an intersection of two current controversies surrounding freedom of expression: expression on campus and hate speech. 

Although wilfully promoting hatred under s. 319 of the Criminal Code infringes s.2(b) freedom of expression rights under the Charter, it is a justifiable infringement under s.1. In both the Keegstra case and the Zundel case, the Supreme Court of Canada recognized the expressive content of hate speech, albeit repugnant. It is under the s.1 analysis, wherein the Court determines if limiting the expression in a particular instance is justified, where the balancing of expression against Charter values of multiculturalism, equality, and human dignity occur. In this context, expression can and has been limited, particularly where such expression reaches criminal proportions.

However, it is in the non-criminal arena of human rights codes where the line between protection and limitation is not clearly drawn. Criminal hate offences require proof of a high level of subjective mens rea or fault element. Hate speech violations under the human rights codes do not require such a high level of intent, which is at the core of the issue in the other Whatcott case, now under reserve at the Supreme Court of Canada.

Similarly, the Boission v. Lund case, set to be heard at the Alberta Court of Appeal on December 7, raises the spectre of hate speech and limits to expression. There too the extent to which non-criminal hate speech can be restricted by human rights codes will be considered.

The other issue of interest, freedom of expression on campus, I have discussed in two previous postings: the November 8 blog on The Pridgen Case and Freedom Of Expression On Campus and the November 9 blog on Freedom of Expression in the Classroom. The Alberta Court of Appeal has reserved decision on the Pridgen case.

However, the ability of a University to restrict free expression, no matter how ugly, is a current issue, with Campus Pro-Life groups across Canada fighting against university prohibitions of their graphic anti-abortion campaigns. Currently, the Calgary group has a judicial review pending in the Alberta Queens Bench as of April 2011. Calgary, Carleton, Victoria and Guelph have all banned the clubs on campus.

Even university marching bands are not immune as the Queen's University marching band's explicitly discriminatory material against women has resulted in a suspension of the band's activities.

Although the intersection of expression and intolerance is not surprising, what is of interest is the locus operandi or the commonality of place, of this intersection: the university campus. As a result, how the Courts will determine expression limits on campus has just become even more complex.

Impression Or Claim: Are They Both The Same?

I recently read an interesting law and language blog by linguist, Julie Sedivy, discussing the linguistic implications of choosing brand names, which by virtue of the name, makes a product claim. The impetus for her analysis were the recent struggles encountered by Health Canada and the Canadian Food Inspection Agency (CFIA) in regulating food product health claims. Sedivy specifically discussed the recent case of infant formula manufactured by Enfamil, called "A+" and "Gentlease A+." The difficulty with these brand names is obvious: is the A+ brand truly superior to all others and is Gentlease A+ truly easier to digest than all other brands? In this situation, there appeared to be a struggle between Health Canada and the CFIA, with the inspectors raising concerns over the labelling claims while Health Canada preferred a wait and see attitude.

Although Sedivy makes a linguistic distinction between a direct or implied claim (something that is either true or false) and a mere impression, Canada's Food And Drug Act makes no such semantic distinction. Both s. 5(1), relating to food, and s.9(1), relating to drugs, makes either a claim or an erroneous impression an offence when it states:

No person shall label...any (food or drug) in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.

The possible vagueness of the phrase "erroneous impression" was discussed by the Supreme Court of Canada in Canada v. JTI-MacDonald Corp., a 2007 case involving tobacco advertising to young people. In an unanimous decision, the SCC found the phrase "erroneous impression" was not overbroad, vague, or too subjective. In the Court's view, the phrase was "an attempt to cover the grey area between demonstrable falsity and the invitation to false inference" such advertising conveys. Thus, "leading consumers to infer things that are not true" about a product is a proper restriction on freedom of expression rights under the Charter.

This case decision is completely consistent with prior SCC cases on misleading advertising such as the 1979 Labatt Breweries case, where the majority found the brand name including the word "lite" as the "phonetic equivalent" to "light" would lead a consumer to mistakenly assume the beer was indeed a "light beer" according to regulatory standards. Even on the basis of "ordinary usage of language today" this is so: merely consider "nite" vs. "night" as recognized, although not unanimously approved of, synonyms.

It is clear misleading claims, impressions, and inferences can attract penalty but how about metaphorical branding? Metaphors do not just require inferences to be drawn but require deep connections to be made between the named object and another object or idea, which,without the metaphor, would not be readily connectable. An example of this would be the metaphors used in relation to the internet, which involve movement through a landscape: Netscape Navigator, Safari, and Internet Explorer all use this deeply rooted metaphor.

Whether this kind of branding would be clearly prohibited under the FDA may be more difficult to decipher. To read more on metaphors, I highly recommend Metaphors We Live By written by the linguist George Lakoff and the philosopher Mark Johnson. Metaphors also have a place in legal discourse but I will leave that journey for another time.