Section 17 – The Statutory Defence of Duress: Episode 19 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous podcasts we have discussed the category of legal defences called justifications and excuses. We know that despite codification our criminal law permits an accused person to raise at trial a common law defence, as long as it is not inconsistent with the Code. There are purely common law defences such as the excuse of necessity (which by the way is exemplified in the seminal case taught in every first-year law school criminal law course – Regina v Dudley and Stevenson – where the two accused charged with murder committed cannibalism when their ship floundered in the high seas and they were forced to drift on a lifeboat – think Life of Pi without the animals) but there are also common law defences, which are subject to codification and found in the Criminal Code. The excuse of duress is one such defence from the common law, which appears in the Code under the section we are contemplating today, section 17.

When we first look at this section, and it is a long one, we realize that the word “duress” is never used in section 17. We therefore immediately feel that what we are about to look at and think about is not the same as the common law defence of duress. This is a correct assumption, on the face of this section. When we look behind this section however and look at the case law, which has developed in conjunction with the advent of the Charter on the mechanics of this section, we will see that in reality this section entitled “Compulsion By Threats” is really very similar to the common law version and only differs in terms of what category of accused person can use this section and for which offences.

Section 17 reads as follows:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Before we dissect this section to have a clearer understanding of it, I want to remind you of the key elements of the class of defences we call excuses.

Both the actus reus and the mens rea of the offence must be proved beyond a reasonable doubt by the prosecution before a legal excuse or for that matter a legal justification can be used as a defence. This means that the case against the accused is made out and, but for this defence, the accused would be found guilty. In light of that prerequisite, the class of defences known as excuses acknowledge the wrongfulness of the conduct but as a result of the circumstances facing the accused person, the accused should not be held criminally responsible for his or her criminal actions. However, the circumstances facing the accused must be dire, in other words, the defence of excuse can only be used in emergency situations. It is therefore the accused’s reaction to these dire situations, which cause society to excuse or absolve their conduct.

Excuses are a concession to human frailty and therefore reflect our humanity in two ways. First, this defence realizes that as individuals, as part of our humanity, we may act inappropriately in order to preserve our life or others. Secondly, as humans we understand that we are not perfect and that our laws must bend to this truth in order to have a compassionate society.

Despite the above, the situations in which excuses can be used are very restrictive because we fear that permitting too broad an excuse for criminal conduct will result in cases where we as a society may not be so sympathetic. So, the rule of law draws a line between what is excused and what is not. The difficulty then becomes, where to draw this line in order to remain true to our humanity without losing it.

As I already mentioned, the section is a reflection, albeit as we will see an imperfect one, of the common law defence of duress and thus this section was in the 1892 Criminal Code under section 12. This original section, except for certain language changes, is virtually the same as the now section 17. Not much changed over the years to this section and yet, as I have already mentioned, the section has changed dramatically since 2001 when the Supreme Court of Canada gave this section a constitutional make-over in R v Ruzic.

The Court in Ruzic, under the auspices of section 7 of the Charter, found that the statutory duress defence was too restrictive, particularly in relation to its common law partner, which even with s.17, could be used by parties to an offence. In the Court’s view, the statutory defence, available only to principal offenders, should not be more restrictive than the common law. In order to re-balance s. 17, the Court took out those passages in the section, which did not accord with the common law equivalent. Even so, the Court did not remove the offences for which the defence was available, choosing to leave those changes, if desired, to the government.

In light of this, let’s return to section 17 and this time, I will edit the section to accord with the Ruzic decision:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Even with these changes the defence is a difficult one to employ. According to the newest Supreme Court of Canada case, in Ryan, the defence can only be used on the following bases:

1. There must be a threat of death or bodily harm;
2. The threat can be directed at the accused or a third party;
3. The accused must reasonably believe that the threat will be carried out;
4. There must be no safe avenue of escape, evaluated on a modified objective standard;
5. There must be a close temporal connection between the threat and the harm threatened;
6. There must be proportionality between the harm threatened and the harm inflicted by the accused, evaluated on a modified objective standard;
7. The accused cannot be a party to a conspiracy or association whereby he or she is subject to compulsion as long as the accused actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association;
8. The accused must be the principal offender and;
9.  

In closing, there are a few items to note. First, the modified objective test is a creation of the Supreme Court of Canada in the series of cases on the meaning of criminal negligence. A discussion on this “test” and whether it is in fact a modifying one can be found in one of my previous blogs entitled The Subjective/Objective Debate Explained.

Second, the common law defence of duress in Canada is not restricted by type of offence, even though, in the UK the common law defence of duress cannot be used in a homicide charge, be the accused principal or a party.

Third, despite section 8(3) of the Code, which holds that common law defences continue unless they are altered or are inconsistent with the Code, section 17 changed to become more aligned to the common law as opposed to the common law defence changing to become more aligned to the Criminal Code iteration. This is because the common law defence of duress is for parties to an offence and the statutory defence is only for principal offenders. It is this distinction allows the common law defence to stand apart from the Code.

Fourth, even though Ruzic changed section 17, the Code does not reflect this change. One has to read the case law in order to know how the section should actually be implemented. This insistence by the federal government not to reflect court imposed Charter changes to sections is something that will come up again in the Code and in these podcasts. Indeed, there are whole sections, such as s.230 of the Code known as the constructive murder section, which have been struck down by the courts as constitutionally invalid and yet still appear in our Criminal Code. Why this is so is a matter of speculation but one wonders if the government believes that a differently composed court will take a different view or that the Charter may somehow change in the future. Either way, it is an oddity that these sections remain as they do as a vestige of the pre-Charter past.

Finally, there is much to be said about the recent Supreme Court of Canada decision in Ryan, which precluded the use of the duress defence in a situation where the accused was an abused woman who contracted an undercover police officer to kill her husband.  I will not, however, discuss those issues here in this podcast. Instead, I invite you to access my previous blog on the matter entitled Not To Make Excuses, But - The (Un)Responsiveness of the Supreme Court of Canada To Duress. I have also written on the application of the “air of reality test,” which is the threshold test used to determine if, in the circumstances of a case, a legal defence will be available to an accused in my blog entitled Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test. I am currently writing a full article on this issue for publication.

We will of course come to further sections in the Criminal Code codifying common law defences where we will continue to peek back at the common law to frame the statutory doppelganger in the Code. 

Episode 19 of the Ideablawg Podcast on the Criminal Code of Canada: Section 17 - The Statutory Defence of Duress

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. 

Section 16: The Defence of Mental Disorder - Episode 18 of the Ideablawg Podcasts on the Criminal Code of Canada

Section 16 describes the defence we now know as mental disorder but which we previously called the insanity defence. It is an incapacity defence, meaning that if successful the accused person is found to be incapable of forming the requisite intent for the crime. Thus, the accused could not even formulate the malicious intent required to commit the crime and is therefore absolved of criminal responsibility. The insanity defence is from English common law; specifically the 1843 British House of Lords Daniel M’Naghten case and thereafter the insanity defence became known as the M’Naghten Rule. This rule was codified into our Criminal Code from the Code’s inception.

In the 1892 Code, the defence was found under s.11. To read the section is a lesson in now inappropriate language as the section absolves those “labouring under natural imbecility” or disease of the mind. Other than this, the section does read very similarly to the present section 16 as a person “labouring” or “suffering,” as we say now, is exempt from criminal responsible if that disease or disorder rendered the person “incapable of appreciating the nature and quality” of his or her actions. However under the 1892 section the accused must also be incapable “of knowing that that the act or omission is wrong.” Let’s quickly look at the present section 16(1) for comparison:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Our present defence requires that the person suffering from a mental disorder must be “incapable of appreciating the nature and quality of the act or omission” or “knowing it was wrong” and not and “knowing it was wrong” as in 1892 version.

The balance of the subsections under the 1892 section 11 is as follows:

2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things, which, if it existed, would justify or excuse his act or omission.

3. Every one shall be presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.

Subsection 2 from the 1892 insanity section qualifies subsection 1 by providing an exception. A person may be “labouring under natural imbecility or a disease of the mind” but if they suffer from specific delusions and are otherwise sane, they cannot use the insanity defence unless those delusions “caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.” Subsection 3 indicates that everyone is presumed sane “until the contrary is proven.” Once an accused is found NCR or not criminally responsible, the person would be held in detention until the “pleasure” of the Lieutenant Governor. This “pleasure” had no time limitation. Although, I will not discuss this here, this indeterminacy was changed in later amendments.

The 1892 version of the defence continued until the 1953-54 amendments at which point the section was re-enacted as s. 16 but this version, again, is quite different from what we have today. The revised section reads very much like the original version except that it changes the “and” “knowing that such act or omission is wrong” to “or.”

In 1975, the Law Reform Commission of Canada, as it then was (it was disbanded in 1993 and re-enacted as the Law Commission of Canada in 1996 but then had its budget cut in 2006 and was closed down), published Working Paper #14 on “The Criminal Process and Mental Disorder.” The significant commissioners at the time were two soon to be Supreme Court of Canada Justices – Antonio Lamer (Vice-Chair and later to be Chief Justice of the SCC) and Gerard La Forest (commissioner) and the Chair, E. Patrick Hartt, who became a Justice of the High Court of Ontario in 1996 and retired in 2001. For more information on the fascinating history of Canada’s law reform agencies, I recommend reading Gavin Murphy’s paper that can be accessed here.

In any event, this Working Paper, although not partially acted upon until the 1991 amendments (which were done in response to the constitutional striking down of the old sections by the Supreme Court of Canada), suggested various fundamental changes to the insanity defence and the procedures surrounding it. As a result, it is with some irony that the Paper opens with the words “It [the Paper] examines many of the important but sometimes neglected problems of mental disorder in the criminal process.” It seems the issue was even further neglected legislatively for a further sixteen years.

However, there was some groundwork done in the intervening time. The government, in 1982, through the Department of Justice, started the Mental Disorder Project as part of a comprehensive review of the criminal process by provincial and federal Minister of Justice officials. In 1983, a discussion paper was published and again the procedural difficulties and inherent unfairness in the system were discussed. Additionally, with the advent of the Charter, the system’s constitutional compliance was questioned. A full report was eventually tabled in 1985 and a draft Bill was introduced in 1986 by the then Minister of Justice John Crosby. The Bill was still under scrutiny when in 1991, the Supreme Court of Canada found the insanity rules and some of the Criminal Code sections unconstitutional in the Swain case. It should be noted that the then Chief Justice Lamer together with Justice Cory and Justice Sopinka wrote what would be the majority decision. Justice La Forest concurred with Justice Gonthier, who agreed substantially with Lamer CJ’s conclusion.

Thus we have the 1991 amendments under which we practice today. Although the new amendments have not anticipated all issues, certainly section 16 is a much better and fairer section than the previous iteration.

The present version retains the presumption of sanity but also clarifies the burden of proof required to overcome the presumption. It must be noted that either the Crown prosecutor or the defence may raise the issue of mental disorder. If this occurs the trier of fact must be satisfied on the civil standard of balance of probabilities that the presumption of sanity does not apply. There is no exception, in the present s. 16, for specific delusions. The balance of the present section 16 (2) and (3) is as follows:

Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

 Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

Although section 16 sets out the defence of mental disorder, the presumption of sanity and the burden of proof, it is Part XX.1 of the Criminal Code, entitled Mental Disorders, which sets out the procedure to be followed in considering the defence. It is a lengthy Part and thus the defence of mental disorder is complex and time consuming requiring often-competing experts and the application of circuitous special procedures. A full discussion on this Part will come when we discuss sections 672.1 to 672.9, much further down this Criminal Code journey.

One last comment on the recent controversial nature of this issue, particularly with the finding that Vince Li, who beheaded a passenger on a bus, was found not criminally responsible due to a mental disorder and was sent to a psychiatric institution for treatment. Just recently Li’s terms of segregation at the hospital were relaxed by the Criminal Code Review Board of Manitoba to permit Li to leave the hospital unescorted. This relaxation has resulted in a call to tighten once again the consequences of a finding of mental disorder.

The Federal Government has been most vocal in wanting changes and introduced last year a Bill C-54 to amend the Code to include strict restrictions on a person found mentally disordered under s.16. Critics of the Bill suggest that the further stigmatizing of the mentally ill will not “make society safer.” The Bill received its First Reading in the Senate in June of 2013. Read the presenting speech made by the original sponsor of the Bill, the then Justice Minister Rob Nicholson, as well as the response speeches here. Read also the article by the Canadian Psychiatric Association on the “fundamental flaws” in the new proposal.

It should also be noted that in a recent legal conference on mental disorder and the criminal justice system, questions were raised on the constitutionality of the proposed new amendments. Although, section 16 has come a long way from M’Naghten and the 1892 Code, the future of criminal responsibility and mental disorder is still unsettled and may only be determined, once again, by court intervention.  

Section 16 - The Defence of Mental Disorder: Episode 18 of the Ideablawg Podcasts on the Criminal Code of Canada

Ideablawg’s Weekly Connections: International Women’s Day and Legal Inspiration From Abella, Arbour and Smith

Today is International Women’s Day, a day to celebrate how far women we have come in terms of gender equality but also a day of hope as we reflect on what still needs to be done. We are not quite there yet and certainly in many countries across the globe not there at all. There are so many inspiring women of all ages but I devote this week’s connections to three jurists women who give me legal inspiration.

1. There are of course numerous Canadian women in the law profession who provide inspiration to us all. Check out the page at U of T Law School dedicated to some of these legally minded trailblazers. Out of the list, I find inspiration from Madame Justice Rosalie Abella, now sitting on the Supreme Court of Canada. Not only she is an exceptional jurist and dedicated human rights advocate (see the blog I wrote on her dissent in the Court of Appeal on Crown misconduct) but her life story is also an inspiration. A child of the Holocaust, she was born in a Displaced Persons’ Camp in Stuttgart, Germany where her father, a lawyer, helped advocate for the other displaced persons’ in the camp. I have had the opportunity to appear in front of Justice Abella when she was first appointed to the Ontario Court of Appeal and argued a sentence appeal before her in the first week she was sitting on an Appeal panel. Although it was a straightforward appeal, Justice Abella showed her mettle and her mind by dissenting in the case. This was not a controversial case at all and indeed the dissent, legally, did not matter but what did matter was the humanity and compassion she showed by doing it.
2. Another Justice of the Supreme Court of Canada, albeit a former Justice, is Louise Arbour. Most people recognize her as the Justice who stepped down from the SCC to become the Chief Prosecutor for the International Criminal Tribunals investigating the war crimes of the former Yugoslavia and Rwanda. She then became High Commissioner for Human Rights in 2004 and retired from that position in 2008. Although her tenure in the international scene was not without controversy, she is an inspiration for her tenacity and her deeply held beliefs in international human rights. She now heads the International Crisis Group where she speaks out against any oppressive regime and even western powers like Canada, who, in her view, are not doing enough to advance human rights internationally. Again, I had the pleasure of appearing before Justice Arbour many times when she sat in the Ontario Court of Appeal. Her expansive knowledge of criminal law made it a pleasure to argue a criminal appeal before her. However, I believe it was when she took on the unenviable task of inquiring into the Prison for Women at the Kingston Penitentiary in 1995 that I truly found her most inspiring. Her report is a shocking read but an important one for prisoner rights and women rights. She truly made a difference. After her report, P for W was disbanded.
3. For more inspiration, I look no further than the trial court. Day in and day out trial judges sift through the nuts and bolts of legalese and listen to the narratives placed before them. Sure they determine cases by applying legal principles but the very best trial judges do so by hearing the stories of the people affected. This is an important part of access to justice – to listen and to give those before them a fair and just hearing.  When I was a law student at Osgoode Hall Law School, I was lucky enough to win the lottery for the incomparable Criminal Law Intensive Program run by the then criminal law professor Alan Grant. It was an amazing program where we students were seconded with lawyers and judges to shadow their daily work lives and to take in their unique perspective on the criminal justice system. I was seconded with the then District Court Judges and among the group I had the honour to work with was the then the Honourable Judge Heather Smith. Of course now she is Chief Justice of the Ontario Superior Court of Justice and the first woman to hold that position. There are no words to express how impressed I was with her abilities and her commitment to the criminal justice system.  As a woman and as a soon to be articling student, she inspired me to treat the law and those individuals in the law, be it lawyers or clients, with respect. In my mind she was the epitome of a trial judge – competent, thoughtful, compassionate and learned in the law - and an inspiration for a young female barrister ready to take on the world.