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: 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!

Section 12 – Anyone Want To Play Double Jeopardy?: Episode 14 of the Ideablawg Podcast on the Criminal Code of Canada

Double jeopardy, like the presumption of innocence, is a legal term, which is a familiar part of our social discourse. The phrase is at once a movie, a book (actually multiple books), and even a segment of a game show. The concept, that an accused may not be tried or punished for the same offence more than once, is ancient and runs deep in our “fundamental freedoms” psyche. The Greek orator, paid speech writer, and all-around democrat, Demosthenes in his speech of 355 BCE Against Leptines, reminded the Athenian jury that “the laws forbid the same man to be tried twice on the same issue.”  Roman law later codified this concept when they published The Digests or Pandects of Justinian and referred to the maxim ne bis in idem or “not twice in the same” in Book 48, Title 2, Section 7(2). The maxim eventually was subsumed into English common law, however it was strictly defined and originally applied to those acquitted or convicted of capital offences. See Blackstone Commentaries in Book 4, Chapter 26 for more on the English law equivalent.

Not surprisingly, this restricted concept was handed down to us when we codified our Canadian criminal laws. In the 1892 Criminal Code, section 933 codified the Canadian principle under Proceedings After Conviction pertaining to “Punishments Generally.” As it is very similar to our present version under section 12, I will not reproduce it here but please note that the prohibition against double punishment is not limited to capital crimes. Also note that I referred to the concept as “double punishment” and not “double jeopardy.” To explain this difference, let’s read section 12:

Where an act or omission is an offence under more than one Act of Parliament, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

Immediately, it is clear that this section protects double punishment, not double jeopardy – an accused can therefore be charged and tried for similar offences, but once convicted, the accused cannot be punished more than once. This is much different than the American concept of double jeopardy as found in the Double Jeopardy Clause of the Fifth Amendment, in which a person, who is subject to the same offence, is not to be “twice put in jeopardy of life or limb.” In the American version, therefore, even the risk or danger of being convicted is being protected. The Canadian codification in the Code, like the English principle, does not go as far.

In fact, even our Charter protection under section 11(h), albeit broader than section 12 of the Code, is still not as robust as the American conception.  Section 11(h) of the Charter reads: 

Any person charged with an offence has the right if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

The Charter prohibits double punishment, like section 12 of the Code, but also prohibits retrying an already acquitted accused. It is unsurprising that section 12 of the Code does not refer to acquittals considering its antecedents as a section under the punishment part of the original Code. Also, both of these concepts – not to be convicted or tried twice – come from the common law and, as we learned in a previous podcast, common law defences under section 8(3) are still available. Therefore, does section 12 really need to be under the Criminal Code? Those common law defences are known as autrefois acquit and autrefois convict. Autrefois acquit, meaning previously acquitted, and autrefois convict, meaning previously convicted, are actually referred to in the Criminal Code as “special pleas” under s. 607. Yes, we will eventually discuss this section but much much further down this podcast road.

In any event, autrefois convict has been further refined as it only applies after there has been a complete adjudication on a matter including sentence. Before punishment, pursuant to s. 12 of the Code, an accused who has been tried and convicted of offences arising out of the same transaction, can rely on the case law principle prohibiting multiple convictions from the 1975 SCC R v Kienapple. Thus, an accused charged and convicted of driving with over 80 mgs of alcohol (section 253(1)(b)) and driving while impaired (section 253(1)(a)) arising from the same transaction, will not be punished for both offences but will have one of the charges stayed or “kienappled” as defence lawyers like to call it. As an aside there are a few cases, which have become verbs in the legal nomenclature, such as a case being “askoved” or stayed due to a trial not being heard within a reasonable time pursuant to s. 11(b) of the Charter.

The lesson learned from this podcast and the previous podcast on s. 6 the ersatz “presumption of innocence” found in the Code, is that our societal perspective of law is not really reflected in our Criminal Code. Instead our perspective is coloured by the media, by the American experience, and by our own assumptions of what the law is and what the law is not.

Join me for the next podcast when we discuss section 13 of the Criminal Code.

Episode 14 of the Ideablawg Podcast on Section 12 of the Criminal Code of Canada

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

Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada: The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence

Here is the Podcast. Enjoy!

Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada: The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence