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? 

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.

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

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

The presumption of innocence – the concept that an accused is presumed innocent until proven guilty - is easily the most well known legal principle. As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool. It has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture.

Indeed, as an example of the ubiquitous nature of the presumption of innocence, we can find the concept used as a title of a book, such as in Scott Turow’s novel, Presumed Innocent and the movie version with Harrison Ford. Or used as almost a character flaw as in one of my favourite legal literary heroes, Rumpole of the Bailey, written by John Mortimer Q.C. In those stories, Horace Rumple, the rumpled everyman barrister, finds personal solace in his belief in “the health-giving qualities of claret, of course, the presumption of innocence, and not having to clock into chambers in the morning.” In the classic play/movie 12 Angry Men, when Juror #8, played by Henry Fonda, reminds Juror #2, played by John Fiedler, that “the burden of proof is on the prosecution. The defendant doesn’t even have to open his mouth. That’s in the Constitution,” we nod our heads in agreement and relief. Although many of us could not say which section of the Charter (s. 11(d): “to be presumed innocent until proven guilty”) encapsulates this concept, we all take comfort in knowing it is there.

But there is another place where the presumption of innocence is recorded in Canadian law and that is section 6 of the Criminal Code, which is entitled “presumption of innocence,” the first part of which reads as follows:

Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,

(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 of the offence; and

(b) a person who is convicted or discharged under section 730 of the offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

Now, that’s not really the “presumption of innocence” we have come to expect, is it? When you read this section it just does not seem to have that visceral punch I talked about earlier when reacting to the lines spoken in 12 Angry Men. It also does not seem to be conveying the deep, and almost personal societal, values underlying this fundamental premise.

First, let’s look at the wording. Unlike the Charter equivalent, there is nothing in section 6 about a “presumption” only a “deeming.” So the very word, we hang on when discussing innocence, the “presumption,” which gives the concept such solemnity, is gone. Second, there is nothing in the section about “innocence” although the title suggests it. However, as we know from my previous podcasts, in the Criminal Code the headings are there for convenience only and do not form part of the section itself. Instead, I would suggest, the section seems to be contrary to the presumption of innocence as it focuses instead on the concept of guilt and punishment. The section describes the circumstances in which the court can finally impose punishment. Now to be sure the court needs to hold off until conviction, but as soon as that pre-condition is fulfilled the sanctioning regime kicks in and punishment is not only available but also inevitable. Section 6(1)(b) continues this punishment theme by ensuring that the punishment can only be that as prescribed or authorized by law but it adds nothing to our concept of the presumption of innocence. So this section is not really about the fundamental premise of our criminal justice system, the golden thread of criminal law, but about when punishment can, and will, be meted out.

To understand why this section reads as it does, a little legislative history is in order. The section first arose in 1886 legislation on punishment entitled An Act Respecting Punishment, Pardons, and the Commutation of Sentence, and was not only subsumed into the first Criminal Code but was placed in the latter part of the Code where the punishment sections resided. The purpose of the section was not therefore to trumpet the fundamental principle of the presumption of innocence but to reinforce the applicability of punishment at the time of a finding of guilt. This concept of punishment only upon conviction was not only consistent with English criminal law but was consistent with chapter 39 of the Magna Carta which stated that:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

In the original Latin phrase of this article “nisi per legale judicium parium suorum vel per legem terrae,” the Magna Carta protects the accused from punishment without judgment of his equals and in accordance with “the law of the land.” So this idea that an accused is guilty only when he is found guilty, remained under the general punishment section of the Code until 1955, when it was moved to the front part of the Code, namely to section 5(1), but was still viewed as a punishment section as it was then entitled Punishment Only After Conviction. However the wording of the 1955 section does resemble the wording we have today under section 6. It is not until the 1985 revision of the Code, when the section was repealed and reinvigorated as section 6 that it becomes the more venerable presumption of innocence. Of course this reconstitution (forgive my pun) came after the 1982 enactment of the Charter of Rights and Freedoms.

Understanding this legislative history does give us a better sense of how it came into the Code but why it was renamed the presumption of innocence is an unanswered question requiring deeper investigation than an Internet search. Certainly, looking at case law, this section is rarely invoked as authority for the principle of the presumption of innocence. A quick survey of cases reveals there are only a few such cases (these cases can be found here, here, here, and here) where section 6 was relied upon as propounding the concept but always invoked with the constitutionalized version found under s. 11(d) of the Charter.

Although I cannot explain why this presumption section is so named, I would like to take a few moments to consider where the concept of the presumption of innocence arose in the first place. In my earlier posting on the issue, I suggested, through the academic writings of George Fletcher that the concept actually migrated to criminal law from the English civil law. I do not want to return to that discussion, instead I want to take us to the moment when the presumption of innocence becomes imbued with the gravitas it now enjoys – the particular moment when the presumption of innocence transformed into the fundamental principle it is today. I have already alluded to that moment earlier in this podcast when I described the presumption as the “golden thread of criminal law.” In first year law school there a few seminal or landmark English cases we discuss and end up knowing virtually by heart. One of them is the case where this “golden thread” metaphor is first used, the 1935 English House of Lords case of Woolmington v. DPP.  The facts of the Woolmington case do not concern us here but the decision, what is written by the then Lord Chancellor of Great Britain, Viscount Sankey, does.

In order to set the stage for this momentous decision, I need to give a quick legal backgrounder on Lord Sankey and the great impact he had on Canadian law. After the Supreme Court of Canada in 1925 found women were not “persons” under the British North America Act and therefore ineligible to sit in the Senate, the case, known as the Persons case, was appealed to what was then the highest level of appeal, the British Judicial Committee of the Privy Council. Civil appeals to the Privy Council were abolished in 1949, while criminal appeals ended in 1933. Lord Sankey, as a member of the Privy Council, wrote the appeal decision in the Persons Case or Edwards v. Canada (Attorney-General). In the case, reversing the Supreme Court of Canada decision and finding women were indeed “persons,” Lord Sankey commented on the argument that historically women were disbarred from public office. Despite this historical fact, Lord Sankey concluded that “the exclusion of women from all public offices is a relic of days more barbarous than ours” and that “customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.” In the Persons Case there was no reason why women could not discharge the parliamentary duty of office. In terms of the efficacy of the actual British North America Act, which today we call the Constitution Act, 1867, Lord Sankey, famously remarked that the Act “planted in Canada a living tree capable of growth and expansion within its natural limits.” This metaphor of the Constitution as a living tree has taken root since the 1930 Persons Case and has become a guiding doctrine in our constitutional jurisprudence.

Needless, to say Lord Sankey has a way with words and the Woolmington case was no exception. On the issue of presumption of innocence, Lord Sankey surveyed the textbooks on the issue and was perplexed to find a suggestion that the presumption was one of guilt and the burden was on the accused to prove otherwise. After running through more cases, Lord Sankey described the fundamental importance of the presumption as:

Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception.

Lord Sankey then connects the presumption of innocence with the burden of proof, which requires the Crown to prove guilt beyond a reasonable doubt. This connection is explored in my previous blog on the issue. So, it was Lord Sankey who gave use this strong visualization of the presumption of innocence and turned the principle into something much more.

How Lord Sankey came to this golden thread metaphor is puzzling. I suggest that this metaphor must have come from the Greek myth of Ariadne and Theseus. Ariadne gave Theseus a golden thread to help him escape the Minoan Labyrinth after he killed the Minotaur. Thus, the presumption of innocence, as the golden thread of Ariadne, leads the accused out of the maze-like machinations of the criminal law.

This thread theme is reinforced by a further metaphor, which I also referred to earlier in my podcast; that the presumption of innocence is part of the “fabric” of our society. Indeed, I found a 1965 case, R v Dixon, from the then District Court of Ontario, written by Mr. Justice Robinson wherein he describes the presumption as the “golden thread” that “runs through the warp and woof and is thus firmly imbedded in the whole fabric of the administration of English and Canadian criminal justice.” When I first read this passage, not unlike a Wiki page, I thought someone added the phrase “warp and woof” for a joke. But, like a good researcher, I looked up “warp and woof” and found the following definition:

The essential foundation or base of any structure or organization; from weaving, in which the warp — the threads that run lengthwise — and the woof — the threads that run across — make up the fabric: “The Constitution and the Declaration of Independence are the warp and woof of the American nation.” This expression, used figuratively since the second half of the 1500s, alludes to the threads that run lengthwise ( warp ) and crosswise ( woof ) in a woven fabric.

So this thread metaphor is taken in a different direction but is also a good candidate for explaining Lord Sankey’s “golden thread” turn of phrase. By the way, I did take my research a little further to find other cases that have used this archaic phrase. I found only a few cases, some which were actually about fabric making but there was a use of this metaphor in two Supreme Court of Canada constitutional Division of Powers cases; Reference as to the Validity of Section 6 of the Farm Security Act, 1944 of Saskatchewan and the 2009 Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters. Notably, in the 2009 case, Mr. Justice Binnie used the phrase in a delicious quote invoking the world of the 1860s:

The current Canadian economy would be unrecognizable to the statesmen of 1867 and, to borrow an analogy from Thomas Jefferson, one would not expect a grown man to wear a coat that fitted him as a child.  The coat is of the same design, but the sleeves are longer and the chest is broader and the warp and woof of the fabric is more elaborate and complex.  Adopting a purposive approach to constitutional interpretation, as we must, what is important is not how transportation was viewed in 1867 but rather to match in our own era the level of regulation (federal, provincial or territorial) appropriate to the nature and scope of the undertaking.  Now, as in 1867, when a transportation undertaking connects or extends “beyond the Limits of the Province” its regulation is assigned by the Constitution Act, 1867 to the federal level of authority.

In 1859, Charles Dickens also used a golden thread metaphor in A Tale Of Two Cities, to suggest a strong bond of familial love created by the indomitable Lucie. Although, there is a strong affiliation between the criminal law and the presumption, I still prefer the Greek myth connection. I should recommend here my previous blog on Charles Dickens and the law called Charles Dickens Is On The Side Of Justice wherein I discuss some of the more legally minded passages of Dickens’s novels. 

One final aside on this golden thread metaphor brings us to American literature and Nathaniel Hawthorne’s Scarlet Letter, where Hester is required to sew a letter “A” onto her clothing as her punishment as an adulterer. As time wears on, Hester proudly marks her shame with an “A” made of golden thread. For Hester, the golden quality of the thread reflects the shame of the community who branded her with their cruelty.

In some way the golden thread of the presumption of innocence protects us from a similar fate – a society devoid of compassion - or as Chief Justice Dickson, as he then was, reminded us in the 1986 Supreme Court of Canada Oakes case, the presumption of innocence "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." To me, his words are indeed golden.