When Dissent In the Supreme Court of Canada Matters

Have you ever wondered about the significance of a dissenting opinion in the Supreme Court of Canada? To use one of their favoured terms, dissenting decisions may be signifiers of “incremental change.” Overtime, however, these dissenting opinions may become the majority decision. Certainly, some of Chief Justice McLachlin’s dissents are an example of this – most recently in the air of reality line of cases – see my previous blog on the issue here. Of course, sometimes a dissenting opinion does not signify change but simply signifies dissent – a vocalization of a differing viewpoint or to use probably a trite yet apt Robert Frost analogy “the road not taken.”  The recent Supreme Court of Canada Babos case on prosecutorial misconduct is an example of when dissent for dissent's sake matters.

Justice Abella’s dissent on the issue makes for powerful reading, invoking the sanctity of the justice system and the high standard we expect from our quasi-judicial prosecutors, who stand on behalf of the state as upholders of society’s fundamental values. Even in the adversarial system, the duties of the Crown prosecutor transcend the arena of dispute, as they must defend the law in the pursuit of justice. Justice does not have a stake in the ultimate outcome of guilt or innocence but does impact how the ultimate outcome is achieved.

This role is, as suggested by Madame Justice Abella, timeless and does not crystallize at particular points of a prosecution but must permeate every action or inaction of the Crown.  As she so eloquently said, “Time is not a legal remedy for a fundamental breach of the Crown’s role, and cannot retroactively cure intolerable state conduct.”  Difficult balancing must be done to fulfill this duty but it is of utmost importance in the viability and credibility of the criminal justice system.

So I encourage you to read the dissent and envision an alternate view where “an exceptional assault on the public’s sense of justice” is deemed worthy of dissent.

Ideablawg’s Weekly Connections: Peace And Violence

This past week there were some defining moments in history all in a background of love, war, violence, and peace.

1. All You Need Is Love: This week we celebrated the anniversary of The Beatles on the Ed Sullivan Show. In this moment of reflection, let us consider the various ways the boys engaged law and authority. Consider Paul’s marijuana as found by the Japanese authorities in 1980 or John’s deportation battle in the USA. If you want something more uplifting – recall John and Yoko’s bed-in at Montreal’s Queen Elizabeth Hotel. Here is a great legal connection – Allan Rock, lawyer and politician (now President of the University of Ottawa) – managed to convince the couple to go from Montreal to Ottawa in 1969 when he was President of the University of Ottawa Students’ Union. Here is a personal connection – Allan Rock taught me Civil Procedure II while I was at Osgoode Hall Law School. Only two degrees of separation between John Lennon and me!

2. War: Sixty-nine years after the end of World War II and we are still learning something new about the events of the War years. The Monuments Men, a movie that opened this past week, enlightens us on how art and architecture was saved or not saved during the war. I also recommend reading the book but if you do, read it with an iPad nearby to reference not only the art pieces but also the places in which the art was found. This further connects to the ongoing struggle for the return of art stolen during the war. I have written a previous blog on the issue. This past week, Germany considered extending the law allowing Jewish families to recover this art as more caches of such art are being found.

3. Peace: One of my personal heroes is Richard Feynman – the Nobel Prize winner in Physics who passed away 26 years ago on February 14, 1988. Not only was Feynman an engaging man and a tremendous mentor and teacher but he was also a clear thinker with a heart of gold. He’s the one who dropped the O-rings into the ice-cold water to demonstrate how the Challenger disaster accident really occurred. He also ended his minority report on the disaster by stating “For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled.” A dramatization of these events aired on the Science Channel last year with William Hurt playing Feynman. Having read all books Feynman, I recommend the autobiographical What Do You Care What People Think? and his lectures on Physics. Although he was one of the young physicist working on the Manhattan project and was at Los Alamos during the War, he had a very strong reaction to the dropping of the bomb on Hiroshima. I strongly recommend watching his interviews on the subject here.

4. Violence: Is the independence of the judiciary something to fight about? In Turkey, a fistfight broke out over the government’s plan to restrain the judiciary. Certainly, this undemocratic move has political overtones in a country rife with such difficulties. This latest move is unsurprising considering the government’s past treatment of free thinkers such as Orhan Pamuk, the Nobel Prize recipient in Literature, who was charged with a criminal offence after speaking out on the Armenian genocide. Ultimately, the government dropped the charges but certainly this was a precursor to the events of Taksim Square and to the latest round of violence. Orhan Pamuk is another one of my role models – read Snow and My Name Is Red to experience Pamuk’s lyric and unforgettable prose.

Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada

Here is the new and improved version of the Podcast for Episode 16!

Episode 16 of the Ideablawg Podcast: Section 14 - Consenting To Death

Section 14 – Consenting To Death: Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada

Although we have not traversed very far into the Criminal Code, we have already discussed some fundamental principles of English common law, including common law defences. Codification, as we have seen, does not usually change these traditional concepts but crystallizes the customary into the written rule. Even with codification, common law has informed the interpretation and implementation of the Code sections through the application of case law. Later, we will see how codification can and has radically changed common law, but the section we are now discussing, section 14 of the Criminal Code, is a reiteration of the common law rule – that a person cannot consent to their own death. The corollary to that presumption is that even if a victim does consent, an accused person cannot use this consent as a defence and is still legally liable for his or her actions. The section reads as follows:

No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Let’s take a deeper look at what this section is saying and what it is not saying. First, the section is actually speaking to us all – not just to an accused person – and acts as a warning: “no person is entitled to consent to have death inflicted.” But why this wording? Why doesn’t the section simply say, “no person shall consent to death?” By putting in the word “entitled,” I submit that not only can we not consent to our own death but we also have no right to do so. This of course opens up a much larger debate on who has ownership over an individual’s life – is it the person or is it the state as the Code seems to suggest? Or is it a combination of the two?

This debate continues, as the Supreme Court of Canada will reopen the issue of the right of a person to die when they consider the constitutionality of the assisted suicide section 241 of the Code in the British Columbia Carter case. I have written previous blogs on the issue: Whose Life Is This Anyway? The Canadian “Right To Die” Debate Part One – Definitions and A Story and Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada. We will further discuss this when we come to the relevant section in the Code but the issue of whether or not society has an interest in the continuance of our individual lives is a weighty one. The difficulty is we do want society to take responsibility for ensuring the necessities of life such as food, clothing and education – all of which by the way have been subject to great constitutional debate. But we do not want society directing the manner in which we live our lives such as our sexual orientation and our decisions around childbirth. Of course, all of these issues are predicated on the decision to live, not on the decision to die. The question “whose life is this anyway?” does not generate an easy or static answer.

The other part of section 14 is a warning to the offender - the victim’s consent cannot be used to relieve the accused of the criminal responsibility for causing the victim’s death. Again, this argument may be raised in an assisted suicide situation but it could also arise in other scenarios such as sporting events. Although we no longer live in a world where a fight to the death is an acceptable spectacle (do we?) this does not mean the issue is dead – excuse my pun. Although dueling under section 71 is a Criminal Code offence, there are contests where death may not be the object but serious bodily harm certainly is and death may be probable if you engage in the “sport” enough times – prize fighting comes to mind. Certainly, in Canada, “blood” sports are either prohibited or highly regulated as in section 83 of the Criminal Code. Recently, the Canadian government changed the meaning of a “prize fight” under this section to permit mixed martial arts events such as the Ultimate Fighting Championships, a highly popular form of entertainment.

Still when death does occur during the course of a sporting event there may be criminal code repercussions. An infamous example is the Todd Bertuzzi – Steve Moore case, when well –known defence man Todd Bertuzzi punched Moore from behind during a hockey game in Vancouver. Moore suffered serious injuries and Bertuzzi was not charged with the more serious criminal negligence, but with the lesser offence of assault causing bodily harm, which is an infliction of bodily harm without consent. Bertuzzi entered a plea of guilty and received a conditional discharge, a lesser punishment available under the Code.  

This brings us to the related consideration of whether one can consent to bodily harm. A much more difficult issue considering many contact sports involve serious injury. It also brings to mind the fistfight or the let’s-take-this outside kind of attitude that is not unknown in bars across the country. Interestingly, this is where common law and codified law intersects. Although we know from section 8(3) that common law defences are available, this seemingly straightforward exception becomes complicated when consent, as in an assault, form an essential element of an offence.

In determining whether or not consent exists as per the Code, how far can a court rely on and apply the common law principles? This was the issue in the Supreme Court of Canada Jobidon case, wherein the accused stepped out of a bar with the victim and engaged in a seemingly consensual fistfight, which left the victim dead and the accused facing a manslaughter charge. Jobidon was acquitted at trial on the basis of the consent but the Ontario Court of Appeal reversed the decision. The majority judgment in the Supreme Court of Canada, written by Mr. Justice Gonthier, found that the common law conception of consent was relevant to whether or not the victim’s consent was applicable in the circumstances. To that end, Justice Gonthier stated at page 738:

If s. 8(3) and its interaction with the common law can be used to develop entirely new defences not inconsistent with the Code, it surely authorizes the courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.  That sort of language cannot be found in the Code.  As such, the common law legitimately serves in this appeal as an archive in which one may locate situations or forms of conduct to which the law will not allow a person to consent.

In accordance with these comments, the SCC took an expansive view of section 8(3) and did not feel encumbered by the argument that consent forms part of the actus reus or prohibited conduct of an offence. In this instance, the common law restricted consent in fistfights, where there was bodily harm, for reasons of public policy – to ensure good order and appropriate behaviors. The Court however was very clear to restrict this decision to circumstances, which “vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”  This was an important caveat for the court as:

Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.  Unlike fistfights, sporting activities and games usually have a significant social value; they are worthwhile. 

Indeed, this comment is puzzling. Although sports such as hockey and football are for some worthwhile pursuits, the issue does not lie in the sports themselves but in the injuries occasioned in these sports. Are these injuries equally worthwhile should be the question. The answer lies in the rules of the sport and certainly Bertuzzi’s criminal responsibility depended upon going outside the rules or norms of the sport.  Although only a certain level and type of harm will be tolerated, this tolerance, as it bends and flows, will have an impact on the future of acceptable violence in Canadian society and in Canadian sport.

Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 14 - Consenting To Death

Ideablawg's Weekly Connections: From Pronouncing to Pronouncements

This week I looked at the dual nature of the word “pronounce.” Although in both meanings to “pronounce” is a speech word, the effects of the meanings are very different.

1. Pronounce: In this meaning – to make a sound of a word or letter with your voice – is something we do everyday. Even in this digital age, the speech act is integral part of being human. However, how we pronounce our words has developed over time and the dialect or way in which we pronounce a word has changed radically in the English language. For example, every teen is required to read Shakespeare, typically Romeo and Juliet, Macbeth, and Hamlet, but inevitably with present-day pronunciation. True we recognize the words and the grammatical structure differs from ours but few of us consider that pronunciation in the 1500s was quite different. Thanks to the linguist, David Crystal, Pronouncing Shakespeare, is possible. Listen here for the correct pronunciation (i.e. as Shakespeare would have pronounced them) in Romeo and Juliet. To follow along, the text is here. Just to connect Shakespeare to law, I remind everyone of the famous passage in Act 4, Scene 2 of Henry the IV, wherein Dick states "the first thing we do, let's kill all the lawyers," which presages the disintegration of society and the beginning of anarchy.

2. Pronounce: Another aspect of pronouncing a word is to speak the word properly. In law, Latin words and phrases are common. Indeed, two such phrases come immediately to mind when I teach criminal law. The first is actus non facit reum nisi mens sit rea, which means there is no guilty act without a guilty mind and from where the terms mens rea and actus reus, the essential elements of a crime, come. As an aside mens rea and actus reus are never used in the Criminal Code of Canada. The second Latin maxim is the causation concept of de minimis non curat lex or the law does not concern itself with trifles. Although the Latin language is liberally sprinkled throughout legal textbooks and case law, Latin is not a required course in law schools. But thankfully there are opportunities for self-study. Just buy Wheelock’s Latin and go online for the correct pronunciations. Your law professor will thank you for it.

3. Pronounce: The second meaning of the word is to declare or announce something formally or officially. A Judge, when he or she renders a decision, is making a pronouncement. How the Judge or trier of fact comes to a decision is a matter of much academic speculation and argument. Critical legal theorists spend much of their academic career trying to articulate this seemingly inarticulable process. Is decision making predictable? Is it based on preconceived views of the trier of fact? Is it random or guided by an innate sense of justice? These heady questions are still being deconstructed in legal jurisprudence. As a primer, read Benjamin Cardoza on The Nature of the Judicial Process for an enlightened view on the subject.

4. Hazmat Modine: to end this week’s connections, I decided to move completely away from my theme and leave you with some excellent music and an example of how our world seamlessly mixes all genres to produce new sound – kind of like how our pronunciations have changed over time. Enjoy!