Making A Split-Decision In The Supreme Court of Canada

Last month the Supreme Court of Canada released their statistics covering the last decade of decisions. The graphs make interesting reading if you want to know how long it takes for decisions to be rendered or which provinces send the most appeals. If those issues are not at the top of your must-know list, the graph on the number of unanimous decisions versus split decisions may be the graph to pique your interest. The lowest percentage of split decisions in a given year was in 2006, where 20% of the cases heard resulted in a dissenting decision. The highest percentage of dissenting decisions occurred in 2007 with 38% of the cases. Last year, 32% of the cases produced dissents.

What could have made these statistics even more enticing would be a break down on who sits in dissent most often and why. Are there thematic connections? Well, of course there are: a justice dissenting on a specific issue would not be expected to change his or her mind if the same or even similar issue arises. However, change does occur, as we know when reviewing the decade of cases from the 1990s on the mens rea requirements for criminal negligence. This change or shift in the court’s decision-making is appropriate and welcome: we want our courts to be reflective of societal fundamental values and this ability for change in legal principles permits this. We also want our jurists to be open to this change, in a principled way, of course. So, analyzing SCC decisions is a way to track change and to better understand the court’s position or change in position on any given issue.

Instead of waiting another decade for these interesting numerical tidbits, I crunched the criminal law numbers for this year. From January to mid-March there have been 13 criminal cases in which written decisions were rendered. Out of the 13 cases, nine of the cases resulted in unanimous decisions. Quite frankly these unanimous decisions are very short and merely the Court agreeing with the lower level appeal courts. Four cases, however, were split decisions. Roughly, 30.7% of the cases are therefore split or dissent decisions. This percentage is fairly consistent with last year.

Now, let’s move away from the empirical side and look at these four decisions for meaning. What kind of split decisions are these?

I have spoken about the Babos case in a previous blog entitled When Dissent In The Supreme Court Matters. This type of split decision, where there is only one Justice in dissent, signifies a fundamental difference in opinion between the majority written by Justice Moldaver, on behalf of the five other justices on the panel, and the lone dissenter, Justice Abella. As such, the dissent is heartfelt and invokes value-laden terms such as the “exceptional assault on the public’s sense of justice” in the face of “egregious state conduct.” Justice Abella, with her background in human rights, is speaking out in a case where her dissent may not really matter in legal principle terms but is a matter with which she disagrees “on principle.” I would call this a “moral/ethical” decision.

The MacDonald case is more benign. It is a “true application” decision. The disagreement does not involve a direct disagreement on the issue at hand but a disagreement on the true or correct application of previously decided legal principles. Thus, the dissent written by Justice Moldaver and Justice Wagner with Justice Rothstein concurring takes umbrage with the majority’s application or misapplication of the Mann case, decided a decade earlier, on the reasonableness of protective police searches. Ironically, Justice LeBel, who wrote the majority decision, was a member of the majority Mann decision. The dissent does not fail to appreciate this irony when they write:

The majority in this case purports to apply Mann.  Respectfully, however, it does not.  Instead, it renders Mann redundant, depriving police officers of the limited search powers they need to protect themselves and the public in fluid and often unpredictable situations of potential danger.

Such a case leaves the legal profession wondering if the Court can’t apply its own case properly, who can? Keep an eye on how this decision, which did not cause the flurry of attention in the legal profession it should have, will affect trial matters in the lower courts.

In Sekhon, the court considered the admissibility of a police officer’s “expert” evidence on drug couriers pursuant to the Mohan criteria. Although, both the majority decision, written by Justice Moldaver, and the dissent, written by Justice LeBel (notice how quickly the tables turn in the SCC in terms of who is in the dissent and who is in the majority!), agree that the evidence was inadmissible, the differences come in the application of s. 686(1)(b)(iii) and whether the appeal should be dismissed as there was no substantial wrong or miscarriage of justice. Again, both the majority and dissent agree on the basics: that the admission of the evidence was not a trivial error. However, in Justice Moldaver’s view the evidence of guilt was overwhelming and therefore it is within the public’s interest not to send the matter back to trial considering the costs to the criminal justice system. Justice LeBel agreed “that ordering a new trial places demands on judicial resources,” however, “this cannot override the appellant’s right to a fair trial based solely on admissible evidence.” In Justice LeBel’s view, the inadmissible evidence went to the very issue before the court – the guilt or innocence of the accused. This kind of decision is the “tug of war” decision.

Finally, the Hutchinson case is the “throw-back” decision. What did we say in Mabior again? While this case does not re-litigate the issues, as Mabior was a unanimous decision written by Chief Justice McLachlin, it does build upon some of the key pronouncements in that case. Thus, in Hutchinson, the majority, written by Chief Justice McLachlin and Justice Cromwell, agree that sexual assault offences protect sexual autonomy but not absolutely as the “blunt instrument of the criminal law” must be used with “appropriate restraint.” On the other hand, the dissent written by Justice Moldaver and Justice Abella view the protection of the sexual integrity of a person, as the controlling issue in the meaning of consent, within the broader context of public policy. Interesting to see the majority speak of traditional criminal law principles in the context of offences, which, for public policy reasons, are the least traditional criminal law offences in the Code. Clearly, there is much more to be said on the issue and a further “throw-back’ decision would not be unlikely.

So, there is a lot to be said about the court’s decisions over and beyond the simple statistical graphs we review every ten years. I wonder what the next few weeks will tell us? 

Ideablawg’s Weekly Connections: Inside The Courtroom

Although criminal lawyers have an intimate knowledge of the courtrooms in which they practice, what do we really know about courtrooms elsewhere? We assume other courts would be all fairly similar but having practiced in Ontario and appeared in a myriad of courtrooms from Toronto, to Windsor, to Lindsay, and beyond, I can say courtrooms do differ. But how do courtrooms in other jurisdictions look? What about other countries? What goes on in them anyway? Well, thanks to the Internet, there are options and tools to help anyone peek into the inside of a court and to see, and perhaps understand more clearly, what exactly is going on inside.

1.   The International Criminal Court (ICC): I have written about the International Criminal Court in previous blogs, most notably here. This past week, the ICC trial chamber has been hearing the Ruto and Sang prosecution. William Samoei Ruto, the Deputy President of the Republic of Kenya and Joshua Arap Sang, head of operations of Kalenjin language radio station KASS FM in Nairobi, are charged with crimes against humanity under the Rome Statute. Ruto and Sang are being tried for their role in the ethnic violence ocurring after the 2007-2008 Kenyan elections. The ICC distributes a video summary of weekly cases in their video series called “In The Courtroom.” The Ruto and Sang matter is this week’s installment showing the courtroom and the various members of the court as well as excerpts of the testimony of a witness, whose identity is carefully protected through use of a pseudonym, facial pixilation, and voice distortion. After the hearing summary, there is a short explanation about the court process including the possible prison terms and where such a sentence would be served. Not only does this video give us an opportunity to experience a totally different kind of criminal court but it gives us a better appreciation of the difficulties surrounding the prosecution and defence of international crimes.

2.   You Be The Judge: This is a great online interactive tool created by the Ministry of Justice in the UK to explain how a judge sentences an accused. The website allows the viewer to observe various criminal cases and to make interactive decisions, based on various factors, to determine the length of incarceration. The viewer/player experiences the courtroom setting and benefits from a number of “asides” from the Bench explaining the process. Through polls taken during the hearing, the viewer can see, in a risk-free environment, if their decisions are consistent with other viewers and with the sentencing judge. I have used this website in my undergraduate criminal justice classes to show how a sentencing judge uses his or her discretion with the rule of law to come to an appropriate and fit sentence.

3.   The Model Court: In a previous blog, I wrote a short piece on the intersection of law and art based on readings from a group of essays in Thousand Eyes: Media Technology, Law and Aesthetics published by Sternberg Press. In the journal are photographs of the “Model Court,” which is a collaborative research project involving a group of artists, Sidsel Meineche Hansen, Lawrence Abu Hamdan (who does some fascinating aural work in the area of the political role of voice in law called Aural Contract), Oliver Rees (he’s so supercool I can’t even describe what he does, so just check out his website) and architect, Lorenzo Pezzani. The project “uses the structure and technologies of the courtroom to interrogate the signifying and controlling role architecture plays in contemporary art and society.” By offering a “model court” as a container of ideas of “jurisprudence, evidence, and the hidden apparatuses that become the essential constituents of tribunals,” the project extends us beyond the courtroom into a representative space, which pushes the traditional four-wall envelope to give us an alternative view of justice. 

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.

Section 11: The Parallel Universe of Criminal and Civil Law: Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada

Today we will step out of our criminal law comfort zone to talk a little bit about the civil law, in particular how criminal and civil law reside in a parallel universe due to section 11 of the Criminal Code.

To start, let’s discuss how civil law and criminal law differ from one another. First, it should be noted that when I speak of “civil law,” I am using this term generously to refer to the legal system controlling private disputes, particularly where there is harm caused either physically (tort law) or through a breach of contractual obligations. Another definition of “civil law” may be the civil law tradition, which comes from the Continental legal tradition (The Napoleonic Code for instance), and involves codified civil statutes governing society, such as found in Quebec.

As you probably already noticed, the main difference between criminal and civil laws is the type of parties engaged in each of these systems. Civil law is between private individuals, whilst criminal is between the state or the government and an individual, although a corporation can also be charged with a criminal offence. Thus, in criminal law we are concerned with public wrongs and harms against society. As, I have mentioned before, the criminal law underlines society’s fundamental values and is reflective of how we view our society at any given time.

As a result of this differing viewpoint, civil and criminal law employ different legal processes, on occasion differing legal rules, and even a different standard of proof. To reflect the specialness of the criminal law, the burden of proof, which is on the state, is beyond a reasonable doubt, and for the civil world it is proof on a balance of probabilities, which is a lower standard of proof than the criminal one.

The civil law also employs some different types of remedies than the criminal law, although sometimes not. Criminal law remedies are about punishment, with the concomitant ideals of retribution and rehabilitation. Typically, civil remedies are about compensation, to ensure the injured party is recompensed for the harm caused. However, there are occasions where these remedies do meet such us in the criminal law when compensation is ordered or in civil law when punitive damages are assessed. This blurring of the lines between civil and criminal law is best seen in the regulatory field of legislation. For further reading on this issue, My Masters Thesis considered the criminalization of regulatory offences and the use of the civil punitive sanction as an alternative.

Now that we understand the differences between civil and criminal, let’s take a look at section 11 of the Criminal Code to try and figure out what it means and what it is doing in our Criminal Code.

Section 11 is entitled Civil Remedy Not Suspended and reads as follows:

No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.

As an aside, a similar section can be found in the 1892 Criminal Code under s. 534. It is under the General Provisions of procedure section of the Code, while the present section 11 is under the General Part.

On the face, the meaning of the section is fairly clear: a civil action may proceed despite a parallel criminal action. In other words, a person charged with an offence can also face a civil suit for his or her actions and that civil case can continue at the same time as the criminal prosecution. However, as discussed in the last two previous podcasts, as the court retains an inherent jurisdiction over its process, a judge, in exceptional circumstances, can suspend a civil case until the criminal matter concludes. The circumstances for such abeyance would involve the right of the accused to a fair trial and the prejudicial effect of a continuing civil case. It must be emphasized that this power is discretionary and there is no automatic right to stay a civil case until a criminal matter is completed.

Another concern for an accused facing a civil suit is the civil requirement for questioning the parties on the suit. Such responses may later incriminate the accused at the criminal trial. However, there is protection for the accused under s.13 of the Charter, which prohibits the use of such testimony in a criminal proceeding, except in a prosecution for perjury or “for the giving of contradictory evidence.” Therefore, the state cannot advance such incriminatory evidence at the accused’s trial unless the evidence forms the basis of a perjury charge or unless the accused testifies at the criminal trial and his testimony at the criminal trial is contradictory to the previous testimony in the civil proceeding. In that instance, the civil testimony does not go in for the truth of its content but can be used to cross-examine the accused on a prior inconsistent statement. However, under provisions in the Canada Evidence Act, an accused must still answer the questions put to him when questioned in a civil case.

There are cases where the civil trial judge has stayed the civil proceeding when the accused is facing criminal charges in the United States. In that forum, the accused, as a Canadian citizen, would not be entitled to invoke the protection of the Fifth Amendment of the U.S. Constitution and would not be protected by the Canadian laws.

Our final consideration is why is the section in the Code. I suggest the section is in place to reiterate the differences between criminal and civil law. The sections speaks of civil remedies or the outcome of a civil case and also a civil suit’s purpose – to enforce a right of the party, which has been harmed, or unrecognized by the other party’s actions. This enforcement is between these two parties – not between Her Majesty and the accused - therefore the action is in respect of different parties. The harm is a private one, and again does not underline the social values at stake in a criminal case. Finally, the standard of proof is lower in a civil suit and therefore a civil remedy may be ordered even if an accused is ultimately acquitted of the criminal case – see the O.J. Simpson trial as an example of this.  So they are different proceedings, for a different reason, making parallel proceedings possible. Finally, there is a desire that civil matters, like criminal cases, be heard in a timely manner to ensure the integrity of the civil system. Of course, with the caveat that, in matters of justice, the criminal case will prevail.

Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada: Section 11

Section 10 of the Criminal Code – Revisiting The Common Law Contempt of Court: Episode 12 of the Ideablawg Podcast on the Criminal Code of Canada

In the last episode, we discussed how codification of Canadian criminal law replaced the common law by prohibiting common law offences but with the exception for the common law offence of contempt of court. Section 10 continues this conversation by providing a mechanism for appealing this lone common law offence to the applicable provincial appellate court. This is therefore a procedural section to ensure that the common law offence, which sits outside of the Criminal Code, is nevertheless subject to the rules of fundamental justice as found in the Code. As straightforward as this section may be, there are two items of interest to point out. Section 10 (1) and (2) read as follows:

   (1) Where a court, judge, justice or provincial court judge summarily convicts a person for a contempt of court committed in the face of the court and imposes punishment in respect thereof, that person may appeal

(a) from the conviction; or

(b) against the punishment imposed.

(2) Where a court or judge summarily convicts a person for a contempt of court not committed in the face of the court and punishment is imposed in respect thereof, that person may appeal

(a) from the conviction; or

(b) against the punishment imposed.

There are two contrasts in this section: first, subsection 1 speaks of “contempt committed in the face of the court,” while subsection 2 refers to contempt “not committed in the face of the court” and second, subsection 1 applies to a “court, judge, justice or provincial court judge,” while subsection 2 applies to a “court or judge.” So, what do these differences mean?

Let’s work through the second contrast first. In order to understand the different wording, we must look to the definitions of these words. Obviously, subsection (1) is broader than subsection (2) as subsection (1) not only refers to “court” and “judge” as does subsection (2), but it also applies to a “justice or provincial court judge.” As we already know from the beginning of these podcasts, section 2 of the Criminal Code is the general definitional section. According to that section, “justice” is:

justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction;

and

 “provincial court judge” is:

a person appointed or authorized to act by or pursuant to an Act of the legislature of a province, by whatever title that person may be designated, who has the power and authority of two or more justices of the peace and includes the lawful deputy of that person.

“Judge” and “court” are not defined under s. 2 but they are general terms used throughout the Criminal Code. When the Code speaks of a specific level of court, then the specific term such as “provincial court judge” or “judge of a superior court of criminal jurisdiction,” which in Alberta would be the Court of Queen’s Bench, is used, or a specific section is referred to such as “a judge as defined in section 552.” However, once that primary designation is given, the Code may then further refer to the entity as simply a “judge.” So “judge” may be interchangeable with any level of judges, except a justice of the peace, who is referred to as “justice” and never “judge.” I would therefore suggest that the meaning of “judge” depends on the context of the section.

The context for our purposes is supplied by the other difference between these subsections, the concept of contempt committed in the face of the court and contempt not committed in the face of the court. We have, in fact, visited this issue already. You may recall in the previous episode, I discussed the differing jurisdiction between the provincial courts and the superior courts. The provincial court derives its jurisdiction from statute, which is the source of its power. Conversely, the superior courts such as the Court of Queen’s Bench of Alberta have inherent jurisdiction or intrinsic powers outside of statute, conferred through the common law. There is no exact description or even limitation of these inherent powers. Legal scholars have been singularly unable to give an all-encompassing definition of the inherent jurisdiction enjoyed by the superior courts but the procedural jurist Sir Jack Jacobs, Q.C (Senior Master of the Supreme Court – England, who was a visiting professor at Osgoode Hall Law School) comes closest in his 1970 article entitled "The Inherent Jurisdiction of the Court" wherein he mused that:

For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction, which is inherent in a superior court of law is that which enables it to fulfill itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner.

Thus this inherent jurisdiction, which cannot be abrogated by the government, is, I submit, the reason the Criminal Code protects the common law contempt of court process. But it is also the uniqueness of the common law offence of contempt of court, which results in the Code exception. Common law contemptdoes have a Criminal Code equivalent in s. 708 contempt of court. But this equivalency is in name only. Section 708 is specifically limited to a witness who fails to attend or remain in court in order to give evidence. Conversely, the common law offence of contempt of court, although not specifically delineated, can be any act, which interferes “with the due administration or course of justice” as found in the 1983 Alberta Court of Appeal Vermette case,  which was upheld by the SCC. There are, however, different classifications of the common law offence and that is where the concept of contempt in the face of the court and contempt not in the face of the court arise. This is also where the differences between inherent jurisdiction and inferior jurisdiction intersect with the differing kinds of common law contempt.

The SCC Vermette case helps to explain these differences. According to the decision, although the provincial court has some jurisdiction to control its own process through a common law contempt charge, this jurisdiction is limited to contemptuous acts within the four walls of the courtroom. Thus, inappropriate acts committed in the presence of the provincial court judge or “in the face” of the court could form the basis of a common law contempt charge. On the other hand, the superior courts by virtue of their ancient and essential inherent jurisdiction had the additional power to cite an individual for contempt ex facie or not in the face of the court, meaning outside of the presence of the judge. It is important to note however that even for those acts committed outside of the court’s presence, the acts must connect to the court’s process. There is no common law contempt without the court as the aggrieved party.

Looking back to section 10, we can now understand why the section refers to both categories of common law contempt to ensure a mode of appeal for both.

I would like to make one more comment on the section as it relates to a judge “summarily” convicting the accused of the common law offence. This refers to the immediacy of the procedure as the court deals with the matter as soon as the judge cites the person for the contempt. There is no formal arrest and the accused does not follow the usual paths of the criminal justice system. There is no right to a jury trial. For more information on this summary process, see the 2003 SCC Arradi case.

Episode 12 of the Ideablawg Podcast on the Criminal Code of Canada: Section 10 - Revisiting Common Law Contempt of Court