The SCC’s Whatcott Decision Explores The Meaning Of “Hatred’ While Continuing The Subjective/Objective Debate

As discussed in previous blog postings, the Supreme Court of Canada appears to be moving towards the objective standard in criminal law – a standard in antithesis to the subjective standard which requires the trier of fact to determine the accused’s perception of the facts in deciding upon guilt or innocence. The objective standard found in objective mens rea offences and used as a standard of assessment in many defences, relies upon the seemingly objective perception of the reasonable person – a legal construct endowed with the standard of a standard citizen from a standard community.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

What Are Human Rights Anyway?

Today is International Human Rights Day, the day to commemorate the signing of the Universal Declaration of Human Rights on December 10, 1948 (see my previous blog on the issue). This event has changed the world in many ways as we struggle to understand what it means to have human rights and as our governments struggle to implement that societal vision.

To understand the concepts involved and the values at stake, we need to start from the essentials: what does it mean to be human? As simple as this question might sound, it is so very complicated and so difficult to answer. It is like describing the colour green without reference to something that is green. Also, such a description depends on the author’s perspective: a scientist may describe being human physiologically or even evolutionary, a psychologist may describe a human emotionally, an anthropologist may describe a human collectively, and so on. Therefore, to come up with an encompassing universal concept of being human is challenging. So, instead of defining humanity, we have concentrated on defining what humanity universally enjoys and expects or has a right to enjoy and expect. Hence, the idea of human rights is born.

But what does having “human rights” mean? Let’s start with the conception of a “right.” One meaning of “right” is an act, which is morally or socially correct or just, such as right vs. wrong. But in the realm of human rights this definition is weak: is it “right” to open a door for someone who has his or her hands full? Yes it is, but the person has no special right or claim on you to open the door. In order to ensure our “rights” will be respected consistently and in order to give “human rights” the special weight it deserves, a right in the human rights context must involve a justified claim or a special entitlement for something, which can be enforced against a person or institution.

Rights however differ from a privilege or a gift: often for a privilege, like a driver’s license, one must apply and show themselves worthy of receiving the privilege. Therefore, having a privilege is discretionary and not given out to all. In contrast, human rights are universal and should not be dependent on any given scenario.

Furthermore, when one possesses a human “right,” one is specially entitled to do or to have or to be free from something, but also entitled to enforce claims against others to act or refrain from acting in certain ways. Thus, the claiming of a right involves, by necessity, someone from whom to claim the right. In other words, we need a society in order to give human rights meaning. Robinson Crusoe, for instance, while alone on the Island has “human rights” but they are irrelevant until Friday shows up.

This “two-way street” therefore requires a “right holder,” the person claiming the right and a “duty-bearer,” who has an obligation to respect those claimed rights. An example can be found under our own Charter of Rights and Freedoms, which is a human rights document outlining an individual’s rights, which then can be claimed or enforced against the State. According to s.10(b) of the Charter, I have a right to counsel upon arrest or detention. This is a special claim I possess or have but I need another actor to fulfill my right. Therefore, it is the State who must act to fulfill my claim; called a positive right. Oftentimes, in the realm of human rights, the State must refrain from acting as in the freedoms found in the Charter such as a person’s freedom of expression under s.2(b); known as a negative right.

It should be noted that our rights under the Charter are not absolute. Rights compete with one another and, at times, contradict with other just as viable rights. Thus, it is this balancing of rights, not the existence of rights, which forms the biggest part of our human rights discourse.

Now, we understand what “rights” mean but from where do human rights come? Human rights arise out of our humanity or human nature: I am human therefore I have human rights. Human rights may consist of the basics to keep us alive but they are much more than that: human rights are not needed for life but for living a life of dignity. What a life worth living looks like comes from a particular vision of what that life should look like. This moral vision then becomes integrated into the political and legal institutions of a society in order to give those human rights the special claim or force needed to make them meaningful. 

Human rights therefore are described as inalienable rights, which everyone equally enjoys. Rights are called inalienable, not because one cannot be denied access or enjoyment of human rights, but because losing these rights is morally impossible. Human rights cannot be given or taken away even though historically institutions have tried such as in Nazi Germany and in slave-holding countries.

There are however difficulties in the application of human rights. It is almost impossible to come up with a list of human rights with which all humanity would agree. Most people can agree on the essentials such as food and shelter but it is when the concepts become less concrete that disagreements arise. Even if we can agree on the right to life, liberty and security of the person (s. 7 of the Charter), we would all have a different conception of what those grand words mean. Does that include universal healthcare? Does that include the life of a fetus? And so on, and, quite frankly, on to the courts to figure these nuances out.

Now we understand human rights better (or maybe for worse?), we can enjoy International Human Rights Day. In the end, it is a celebration of who we are, of who we want to be, recognizing that we are “all in this together” merely because we are human. 

Touching On The Biographical Core of Personal Information: The Supreme Court of Canada’s Decision in Cole

As soon as the Supreme Court of Canada issued the Cole case, I went to the website to read it. Initially, I was drawn to the case hoping to find further clarification and the “filling in,” so to speak, of the legal principle of “reasonable expectation of privacy.” As with so many phrases used in law, legal interpretation is required to give the terms a more robust character and to solidify the meaning so that the mere hearing of the term conjures up the correct legal principle or the proper connections to be made between case law and precedents. The term of “reasonable expectation of privacy” is one of those terms which requires this incremental corporeality in order to make the law more certain. This is particularly needed in the Charter universe where heady terms like “Liberty” and “Freedom”, which by the way are not synonymous according to Chief Justice Dickson in the Edwards Books and Arts case, delineate the parameters of our Charter rights.

Certainly, the Supreme Court of Canada did not disappoint in the Cole decision, as they “filled in” the term in relation to the work place. In doing so, the court answered the question of whether or not there is a line drawn between personal and work and if so, where that line can and should be drawn. Of course, the judgment is not so practical as to suggest the exact place in which the line rests, but it does serve as a guideline for the employer-employee relationship. This posting, however, will not be a critical legal analysis of the judgment in relation to the answer provided by the court. Instead, this posting focuses on one paragraph, indeed the second paragraph of the majority judgment written by Justice Fish.

The second paragraph reads as follows:

Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-a-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

Two concepts found in this paragraph hold my interest. The first is the striking way in which the court defined the personal information found on a computer as “meaningful, intimate, and touching on the user’s biographical core.” Interestingly, this description, which does not refer to any previous case law, does, on a close reading, come from two earlier Supreme Court of Canada cases, which although are related to reasonable expectation of privacy in a search and seizure context, are not related to information found on a computer.

The first is the 2004 Supreme Court of Canada case, R v Tessling. This case is familiar to most criminal lawyers faced with an unreasonable search and seizure or section 8 challenge. Tessling involved the use by the RCMP of FLIR or forward looking infra-red technology. In this instance, the RCMP employed a FLIR camera on an overflight of property, which revealed infra-red images of the emission of heat radiating from the suspect property. The abnormally large amount of heat radiating from the observed property, together with informant information, resulted in the issuance of a search warrant. Police found on the property a large quantity of marijuana and weapons. Counsel at trial argued the overflight using the FLIR camera was an unreasonable search and seizure. The trial judge disagreed and the accused was convicted. However, the Court of Appeal for Ontario reversed the decision, finding there was a violation of s.8 and the evidence was excluded under s.24(2) of the Charter.

The Supreme Court of Canada, through the unanimous decision written by Justice Binnie (an Ontario appointment), did not agree with the provincial appellate court. They did agree that the ability to be free from state action while at our home (as in "the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604)), unless there was prior judicial authorization to do so, was of paramount importance. Justice Binnie discussed how this concept of territorial privacy of the home has expanded to the protection of the bodily integrity of the person through the protection of the privacy of being at home. Thus, being at home suggests, “being the place where our most intimate and private activities are most likely to take place.” It is these activities, which the Charter must zealously safeguard.

In the end, the FLIR camera, revealing only heat images, did not step into the private refuge of the home. Equally, the camera did not step into the “intimate and private” activities, which are core to personal integrity and self-identity of a person as a human being.

Another issue discussed by Justice Binnie in Tessling, brings us to the second Supreme Court of Canada case to characterize personal information as “meaningful, intimate, and touching on the user’s biographical core.” According to Justice Binnie, the difficult decision was where to draw the line: at what point does the state over step their authority and wander improperly and, more importantly, unreasonably into the private lives of an individual. This too was the issue with which the Court struggled to understand in Cole.

To answer this, Justice Binnie turned to Justice Sopinka’s words in R v Plant (1993), another unreasonable search and seizure case involving a warrantless perimeter search of a dwelling house. Justice Sopinka, in starting from the underlying values of the Charter of “dignity, integrity, and autonomy,” found it an intellectually easy journey that

s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. (Emphasis in bold added)

Thus, it is out of a nuanced discussion on the privacy of the home, which expanded the concept of the “home as our castle” metaphor to another metaphor found in the idiom “home is where the heart is,” suggesting that it is not the structure that reflects who we are but what is inside – the people and the thoughts we leave behind.

As an aside, the 2011 Saskatchewan Court of Appeal in R v Trapp, which is also a child pornography matter considering the “reasonable expectation of privacy”, utilized these cases in determining the legality of the seizure of information from the accused’s internet service provider. In fact, Justice Cameron, speaking for the court, reviewed this seizure

to identify the import or quality of this information, having regard for the principle that section 8 protects a biographical core of personal information, including information tending to reveal intimate details of the lifestyle and personal choices of the individual.(Emphasis added)

Such an analysis lead the court to conclude that the seizure of the information was not contrary to the Charter.

This brings me to the second point arising from this short second paragraph written by Justice Fish. The finding in Cole not only “fills in” the term “reasonable expectation of privacy” but also “fills in” or further defines the Supreme Court of Canada’s interpretation of the Charter; the concept that the Charter reflects the underlying fundamental values of our society. The Cole decision merely continues the line of cases, which embrace the idea that Charter values, not necessarily concrete or corporeal Charter terms, lend meaning to Charter rights. Thus, it is the concept of “meaningful, intimate, and touching on the user’s biographical core,” coming from Charter values, which delineates the line of reasonableness.

Now back to the Cole case and the further expansion of personal information, as protected by Charter values, to personal information contained on a computer hard drive. Now, the private world of an individual’s has shrunk from the home as the container of our most intimate and meaningful thoughts to the nano-world of computers. Like a diary, the computer captures a timeline of who we are and who we want to be: our desires, our dreams, and our inner most thoughts. Recognizing this decision is truly a further “filling in” of Charter values helps us understand this decision more thoroughly and causes us to consider what will be next. Perhaps the intimacy of details on Facebook and other such sites will prove to attract more protection than initially thought. In any event, it is clear that the sanctity of the home has become the sanctity of the hard drive.

Taxi! The New Alberta "Drink But Don't Drive" Reality

As of July 1, 2012, Alberta became a safer place, or at least that is the impetus behind Premier Redford's new amendments to the Alberta Traffic Safety Act. As a reminder of the many pitfalls of the legislation and the impact the new regime will have on Albertans, I am republishing excerpts of my previous postings on the issue. It is worthwhile to be conversant with these changes now that Stampede and the never ending wash of "Beer and Beans" are upon us. 

Here is the list of blogs on the issue and the blogs follow:

October 27, 2011, A Lesson On How To Get Tough With Impaired Driving

October 28 Impaired Driving: A Little Diversion

November 24 The Optics of Tougher Impaired Driving Laws

November 27 The Social Costs of The New Alberta Regime

November 28 The Charter and The New Alberta Impaired Driving Laws

November 29 Administrative Tribunals and Duties of Fairness

December 1& 2 Alberta's Response To The Partial Unconstitutionality of the BC Impaired Driving Regime 

From October 27, 2011, A Lesson On How To Get Tough With Impaired Driving:

"Two weeks ago, I invited a guest lecturer to speak to my criminal procedure and evidence class about defending impaired/over 80 offences. The lecturer, a lawyer, did an exceptional job of walking the students pictorially through a typical impaired/over 80 case by using photographs of the Alert or roadside screening device, of the "Breath Bus" or Checkstop bus, and of the breathalyzer machine (actually, the experts insist on referring to them as"instruments" per the Criminal Code).

It became very clear to the class that impaired/over 80 cases are complex, highly technical cases involving difficult evidentiary and legal issues such as expert evidence from the breathalyzer technician, Charter challenges, and the use of the legal presumptions under s. 258 of the Criminal Code. 

Another message was equally clear: do not drink and drive. Although drinking and driving cases are technical in nature and open to a myriad of legal arguments, if the Crown and police have all the legal requirements properly in place, a conviction will result. This was "scared straight" in legalese.

Now two weeks later there is much political talk of making the impaired driving laws tougher in Alberta. How tough? Well, BC tough. In tomorrow's blog, I will expand on what "getting BC tough" really means and the possible repercussions. But, in the end, will "getting tough" deter impaired drivers? Will the carnage on the highways, which we sadly read about on a weekly basis, lessen? Will these new laws make our roads safer?

It is difficult to determine if tougher laws do, in fact, deter and change behavior, despite Premier Clark's insistence that statistics prove her tougher laws work. I, for one, prefer the old fashioned route - education. My son and, recently, my daughter attended the P.A.R.T.Y or Prevent Alcohol and Risk-Related Trauma in Youth Program offered across Canada through the local health services. At this workshop, the 14 to 15 year olds meet people who have made the wrong choice to drink and drive. Although some are in wheel-chairs and some are not, they all are scarred, either physically or emotionally, by their actions. The students listen to their stories, they hear the terrible consequences of poor choices, and they decide not to make the same decision. To me, this is the best form of prevention."

From October 28 Impaired Driving: A Little Diversion:

"Yesterday, I blogged about the importance of education as the ultimate deterrence of impaired drivers. Today, as foreshadowed by yesterday's editorial cartoon in the Calgary Herald, I will comment on Premier Redford's interest in changing the Alberta Traffic Safety Act to impose tougher consequences on impaired drivers.

These changes are to reflect the recent amendments of Part 4 of the British Columbia Motor Vehicle Act, which imposes, at the roadside, automatic driving prohibitions from 24 hours up to 90 days, depending on your BAC (blood alcohol concentration) as shown on an approved roadside screening device. But the repercussions do not stop there: the car may be impounded at the roadside, if the police officer feels it is "necessary" to prevent the offender from driving. Of course, why it would be deemed necessary, considering the police officer just took the offender's licence, is a different matter. Additionally, a monetary penalty will be assessed at the roadside and must be paid within thirty days.

In other words, a lot of quasi-judicial punishment is being meted out at the roadside on the basis of a police officer's opinion. The repercussions are even tougher should the driver receive a warn on the roadside screening device and even tougher still should the driver fail. All done at the roadside, without judicial intervention, without due process, and all mandated by provincial legislation. 

So what if it lacks due process, as long as it works and deters people from drinking and driving? Well, let's look at the actual affect this kind of legislation has on impaired driving.According to BC Premier Clark, the new legislation cut in half deaths caused by impaired drivers. Indeed, the legislation was first introduced by the BC Solicitor-General in April of 2010 on the basis that tougher measures were needed to combat the increasing numbers of impaired drivers. Although, I was unable to find any statistics or reports supporting Clark's bravado, I did find recent statistics debunking the Solicitor-General's comments. In the crime statistics released by Statistics Canada on July 21, 2011, the rate of impaired driving in Canada dropped 6% in 2010, consistent with a general decline of the offence since 1981. Furthermore, the rate decreased, from 2009 to 2010, by 8% in British Columbia and by a whopping 14% in Alberta.

The reality may be that tougher sanctions will not deter people and certainly will not stop innocent teenagers from dying in horrific circumstances. Instead, other ways, which have a proven track record at reducing the offence, such as the use of the ignition interlock program, should be considered. Additionally, enhanced funding and expansion of educational programs targeting the youthful driver should be employed.

Education does work to change attitudes. In the end, roadside justice is a mere diversion from the real issue and the real problem."

From November 24 The Optics of Tougher Impaired Driving Laws: 

"With the dual announcement this week from Alberta, where new legislation mirroring B.C.'s efforts in the area has been tabled in the Legislature, and from British Columbia, where impaired driving fatalities have decreased by 40% since the new legislation has been in force, a review is in order. I will discuss some of the legal difficulties with the legislation and some of the social difficulties of connecting the effects of the new legislation with an absolute decrease in impaired drivers.

Many of the legal criticisms focus on the lack of due process afforded individuals when they are stopped by police enforcing the new law. Sanctions may be imposed without recourse to the criminal justice system and the determination of penalty is not administered by a judicial authority but by the police. By giving the police the decision making power usually confined to judges, the procedure not only circumvents the justice system but circumvents the legal rights protections we all enjoy under the Charter, particularly the s. 11(d) right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." As discussed in a previous blog, There Is No Road To Redemption, this type of crime prevention adheres more closely to the arcane "crime-control model" of Herbert Packer.

Another area of concern involves legal issues with the breathalyzer devices themselves and the inaccuracies connected to the machines. Thus, the lack of due process is compounded by the unreliability of the basis for the out-of-court sanction.

Still other legal critics accuse the police in British Columbia of selective enforcement: police are not enforcing the impaired driving sections found in the Criminal Code, opting instead to enforce the provincial legislation only. The result of such policy not only diverts from the justice system those offenders who would not normally be before the Court, as their blood alcohol concentration or BAC is below the legal limit, but also diverts those offenders who have a BAC above the legal limit and should face a criminal charge. In those circumstances, the criminal law, as properly wielded by the Federal Government under the Constitution Actand under the Federally enacted Criminal Code, is not being enforced.

On the other hand, there are benefits to the accused by this diversion from the criminal justice system. The offender is not subject to the risk of a criminal record if convicted. A criminal record not only carries substantial societal stigma but can result in a loss of employment and difficulties travelling across borders. 

Effectively then, the new legislation "decriminalizes" impaired driving without federal government input and without public input. 

How did this happen? The persuasive, yet misleading, use of statistical evidence may provide the answer as to why this legislation has been so readily accepted by the public and by the government. Returning to the B.C. experience, that law was first introduced in April 2010 as, according to the government, tougher measures were needed to combat the increase in impaired driving cases. This reasoning was, in fact, at odds with Statistics Canada's July 2011 report, which found an overall decrease of the rate of impaired driving throughout Canada with an 8% decrease in the rate of impaired driving in B.C. from 2009 to 2010. In Alberta the 2009 to 2010 rate decrease was 14%.

Despite these seemingly contradictory statistics, the recent announcement from B.C. suggests that alcohol related fatalities have decreased by 40%. In absolute terms, the statistic is astounding and very persuasive. In reality, however, this kind of statistical "evidence" of success must be approached with caution. As Mark Twain purportedly stated "There are three ways not to tell the truth: lies, damned lies, and statistics."

Although such a blanket dismissal of statistics is not warranted, it does give one pause for thought: statistics, as numbers, do not lie, but it is the interpretation of statistics, as offering support or dismissal of a claim or cause, which can be manipulated. Certainly, in the criminal justice arena, such statistical evidence is admitted with caution, particularly in the area of DNA evidence. As stated by Justice Finlayson in the 1998 Ontario Court of Appeal case inTerceira:

At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence.

Ultimately, statistics cannot provide a definite or absolute connection between the new legislation and the decrease in alcohol-related fatalities. The decrease can be explained in many ways such as educational programs deterring people from drinking, increased law enforcement by police, a general declining trend as observed by Statistics Canada, or increased awareness/deterrence through those very government media announcements we have heard touting the new law and its benefits. A quick internet search reveals a long list of B.C. town news sites, big or small, and even a few MLA websites as well, reporting on the B.C. government's recent statistical news.

In the end, we need to be aware that what we see and hear may not be what we are actually getting. In this, as with so much public policy, perhaps only time will tell."

From November 27 The Social Costs of The New Alberta Regime:

"Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens."

From November 28 The Charter and The New Alberta Impaired Driving Laws:

"Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, aCharter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS Community, Gosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights."

November 29 Administrative Tribunals and Duties of Fairness:

"Another aspect of the new legislation is the ability to appeal the automatic and immediate licence suspension to the Alberta Transportation Safety Board. However, the only consideration on appeal is whether or not the appellant drove as alleged either impaired or with a BAC over 50 or 80. There is no discretion in the Board to quash the suspension or disqualification to drive other than proof the appellant did not drive impaired or over 50 or over 80. 

The Board is, of course, an administrative tribunal and not a criminal court.Therefore the same evidentiary and exclusionary rules do not apply per se. Furthermore, the Board, not being a court of competent jurisdiction cannot provide Charter remedies under s. 24(1) or s.24(2). However, the Board is subject to the rules of natural justice and is therefore bound by duties of fairness. As Madame Justice Paperny stated in the 2003 Thomson case:

In summary to comply with its duties of fairness, the Board must:

a) inform the appellant of the case against him or her,

b) permit the appellant a meaningful opportunity to answer the case against him or her,

c) give full and fair consideration to the issues,

d) consider the source of the evidence or information including whether it was gathered in a manner contrary to the Charter and Charter values,

e) consider relevant evidence and information, and as a corollary

f) not consider irrelevant or unreliable evidence or information, 

g) not act arbitrarily, for an improper purpose or with malice.

Where the Board fails to meet these duties, the decision will be subject to judicial review. 

Despite these duties, Justice Paperny acknowledges that it is possible for a Board to confirm a licence suspension after being satisfied the offence is made out and for a criminal court, at a later date, to acquit the accused of the crime. This result, according to Justice Paperny "is not incongruous, unreasonable or a legitimate basis for avoiding the Board...the loss of a driver's licence...is a civil consequence" distinct from criminal penalty.

The realities of the proscribed licence appeals mechanism may not be "incongruous" but will certainly add another dimension to an impaired driving case. Now an offender may be faced with two hearings on the same issue but because one hearing is in the civil context, there is no double jeopardy and no inconsistency.

There may be duties abounding in this regulatory scheme but no matter how presented, because the stakes are high, the duties will have to be fulfilled scrupulously and dutifully. If not, another hearing, in the form of a judicial review will add yet another dimension to what is already a dual procedure. The increased public cost of such a scheme may prove to be an additional burden on an already burdened justice system."

From December 1 Alberta's Response To The Partial Unconstitutionality of the BC Impaired Driving Regime and from the December 2 Follow Up Post:

"Yesterday, in Sivia v. British Columbia (Superintendent of Motor Vehicles), the British Columbia Supreme Court Justice Sigurdson struck down portions of the amendments to the B.C. Motor Vehicle Act. The amendments in question related to the "automatic roadside prohibition" or ARP, imposed when a B.C. driver was stopped by police under the suspicion of drinking and driving.

The legislation permitted ARP based on the "warn" or "fail" of a roadside testing device. A "warn," equivalent to a BAC (blood alcohol concentration) of between .05 and .08, would result in immediate suspension of the driver's licence, impoundment of the motor vehicle, and a fine. A "fail" would attract similar sanctions but also the criminal law regime under s.254 of the Criminal Code. 

Appeals of the ARP went to an administrative tribunal, under the auspices of the Ministry of Transportation. According to the legislation, the appeal process was limited to considering whether or not the appellant was the driver and whether or not he/she received a "warn" or "fail" on the roadside device. There was no ability to argue against the suspension outside of those very limited factual parameters.

Justice Sigurdson concluded that the legislation was not contrary to s.11(d), the presumption of innocence protection in the Charter, nor was it contrary to s.(10)b, right to counsel.Similarly, s. 7, right to liberty, arguments were dismissed in a very summarily fashion. However, Justice Sigurdson did find the ARP, as it related to roadside device "fails," to be an unreasonable search and seizure under s.8 of the Charter as the scheme authorizes a warrantless search without procedural legal safeguards, most notably, the lack of a meaningful appeal process at the administrative level. Justice Sigurdson acknowledged that the ARP was civil in nature and not criminal but even so required some level of due process when determining if an ARP was appropriate under the regime.

How does this case impact Alberta's proposed amendments to the Traffic Safety Act?  If youread the media articles, certainly the Alberta government is touting this decision as the "mother of all decisions," which effectively gives the Alberta regime the "seal of approval." Why the boast? Simply put, the Alberta amendments differ in the administrative appeal process and does have those safeguards which created the Charter difficulties in British Columbia. Do you think maybe the Alberta government was aware of this case before they created their amendments? 

Certainly, if the same arguments as in Sivia were brought in Alberta, there would, most likely, be no finding of unconstitutionality. However, that does not mean there are no arguments to be made. I refer to my previous posts on the issue, which suggest other arguments, not argued in Sivia, and which can be found here.

Indeed, Sivia may provide further support for some of the issues raised in previous posts. Although Justice Sigurdson found the ARP regime was regulatory and not criminal in prospect, such differences do not foreclose Charter scrutiny and possible unconstitutionality.

Further, as discussed in the Administrative Tribunals and Duties of Fairness posting, the transportation tribunals hearing the ARP appeals will be under the "fairness" microscope and will need to give each appeal full and fair consideration or be subject to judicial review. Such considerations would include whether or not the licence was suspended contrary to theCharter and/or Charter values, even though the tribunal itself has no true remedial powers under the Charter. This is a heavy burden indeed. Particularly as the members of the tribunal do not necessarily have any legal training. 

For further clarification, the proposed Alberta regime requires the administrative tribunal sitting on an appeal of an automatic roadside suspension, resulting from a "warn," to consider the certificate of annual maintenance of the approved screening device and the records of the last calibration of the device. On the basis of those documents, the police report, and any other relevant evidence, either sworn or unsworn, the tribunal must be satisfied that the driver consumed alcohol with a blood alcohol concentration equal to or over .05 at any time within 3 hours after having driven a motor vehicle, before confirming the licence suspension.

In the case of a "fail," where the BAC would be at or over .08, and would therefore trigger the Criminal Code process as well, the administrative appeal board would also consider any certificate of analysis pursuant to s.258 of the Criminal Code and any other relevant evidence. In other words, the appeal hearing would not be unlike trying the matter before the criminal courts except that the process is civil and the standard of proof is not beyond a reasonable doubt but a lower standard of balance of probabilities.

The B.C. regime differs significantly and there is no ability to argue that the approved roadside screening device is faulty. In B.C., there has been significant issues with the roadside devices used.

 In the end, the Alberta government's response appears to be slightly premature and overly confident. What is clear is this: the B.C. case will not end the legal concerns with this legislation."

In Defence of Civil Disobedience: Part Two

In my previous posting, I outlined the historical significance of civil disobedience, tracing the creation of the phrase from Thoreau, who turned an innocuous poll tax into a deeply personal articulation of one’s beliefs, to the present iteration of collective disobedience against government policy. Today’s posting will take these concepts a step further into the legal realm.

The definition of “civil disobedience’ as found in Merriam-Webster’s dictionary, suggests the act is a “non-violent” form of group protest. This definition conjures up a vision of peaceful sign-bearing protesters, shouting slogans, and holding hands in solidarity before dispersing for a musical interlude and barbecue. This peaceful concept of civil disobedience no longer seems to fit the bill as today’s more complicated issues require a much higher shock quotient to get the attention of the media and then ultimately the government. Hand in hand with this more virulent form of disobedience is the more intransigent reaction by the government: as crowds shout “hell no, we wont go,” the government lawyers are busily drafting court applications for injunctive relief.

Injunctions, as I thoroughly discussed in my previous posting on the Occupy Movement, are a favoured response by the government as, if successful, results in a court imposed order for the disobedience to stop and then turns the protest into legally recognized unlawful conduct. This can have enormous repercussions as an injunction can not only effectively shut down any future protests, but can also provide legal precedent on the ultimate issue at stake: the fundamental freedoms protected under s. 2 of the Charter of Rights and Freedoms involving s.2 (b) freedom of expression rights, s. 2(c) freedom of peaceful assembly, and s. 2(d) freedom of association. As discussed in previous postings, the Charter is not absolute and the Courts try to balance societal rights with the individual freedoms found under section 2. As a result, although the Courts may find a violation of s. 2 rights by the government seeking an injunction, where societal harm or violence is caused, the Courts tend to find such injunctions a reasonable limit in a free and democratic society under s.1.

The government may also respond to civil disobedience through the criminal justice system. Typically, such response is reserved for the clearest examples of law breaking such as the destructive effects of a rioting crowd. In those cases, the law is most severe, imposing harsh sentences on those who destroy property and harm others under the flimsy disguise of a "cause".

Criminal contempt charges may also be laid when injunctions are not obeyed. This scenario is subtler as it does not involve harmful action but involves inaction: a failure to obey a law, which has been declared valid by the courts. The justice system deals with this form of disobedience slightly differently. Here again Charter violations may not provide a valid defence, but may be taken into account as a mitigating factor on sentence.

To raise a valid defence on a criminal charge arising out of civil disobedience is a challenge as any moral or ethical arguments for committing the prohibited acts do not change the essence of the crime committed. The best way to explain this is through the Robin Hood scenario. Robin Hood and his Merry Men stole from the rich to give to the poor. When we hear this story we usually give Robin the “thumbs up” for fighting against tyranny and greed. We also cheer as he takes the gold from evil King John, knowing that the good King Richard will absolve Robin of any guilt. But, in terms of criminal law, a bandit is a bandit no matter how you slice it. Although Robin Hood may have a valid moral argument for his actions and therefore an excellent motive for breaking the law, the law is clear: the guilt act and the guilty mind are present and therefore Robin Hood is guilty of highway robbery. He may receive a suspended sentence from a sympathetic court but he is still a convicted felon.

There is, however, a possible defence available. In Perka v. the Queen, the Supreme Court of Canada, when considering the common law defence of necessity, suggested such a defence may be a valid defence to acts of civil disobedience. In the necessity defence both the prohibited act or actus reus and the fault requirement or mens rea is complete. Therefore, all essential elements of the crime have been fulfilled and the defence merely excuses the blameworthy conduct.

Essentially, the accused acknowledges the wrongfulness of the action but in the circumstances the accused should not be punished for the crime. Excuses are typically limited to emergency situations wherein the accused had no choice but to break the law. As our criminal law punishes only those who choose to act criminally, an excuse can exonerate an accused of a crime. In the necessity scenario, the accused must choose between two evils.

However, such exoneration comes with a price: the defence of necessity is only accepted in certain, very limited circumstances. There are three elements to the necessity defence. Firstly, the accused must be facing imminent peril or danger. Secondly, there must be no reasonable legal alternative but for the accused to break the law. Thirdly, the harm inflicted by committing the crime must be proportional to the harm, which would have been caused if the accused followed the law and not committed the crime. As a result, necessity is rarely advanced and even rarely accepted as a valid defence. When it is accepted, the Court views the behaviour as a form of moral involuntariness.

How does the necessity defence work in practice where there are acts of civil disobedience? The best case examples are not from usually staid Canada, but in the protest fuelled United States. In the 1969 case of United States v. Moylan, the appellants were charged with the destruction of government records, records they seized from a government office and burned with napalm in protest of the Vietnam War. Counsel for the defence, the “radical lawyer” and activist William Kunstler, argued that the jury should have been instructed that they “had the power to acquit even if appellants were clearly guilty of the charged offenses.” This “right’ was based in moral arguments as the appellants were protesting a war “outrageous to their individual standards of humanity.” Furthermore, the war itself was illegal and therefore citizens had an obligation, in the name of justice, to break the law in order to enforce the law.

The United States Court of Appeals Fourth Circuit Judge Sobeloff, took a page from the Robin Hood myth and found no matter how sincere the appellants were in their actions, and no matter how strong their moral arguments were, they still committed crimes for which they must be accountable. In upholding the law Justice Sobeloff remarked:

To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law, which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.

The best known case of a jury being invited by defence to eschew the law and decide a case on their own moral conscious, was in R. v. Morgentaler, when Morris Manning, Q.C. invited the jury to acquit Dr. Morgentaler of violating the "bad" abortion law. The Supreme Court of Canada chastised Manning for his emotional appeal, finding that such an invitation would “undermine and place at risk” the jury system. In support of this position, Chief Justice Dickson referred to the British 1784 criminal libel case of R. v. Shipley and quoted Lord Mansfield as follows:

So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.

To be free is to live under a government by law . . . . Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.  ...

In opposition to this, what is contended for? -- That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.

Certainly, it is valid to be fearful of a capricious jury who are guided by their own prejudices and sensibilities but there is an attraction to the ability of a jury to “do the right thing” and acquit in circumstances where the law is unjust, not just unfavourable, but unjust. When I was a student at Osgoode Law School in 1983, Morris Manning came to the school and reenacted his Morgnetaler jury address, an address which did result in an acquittal for the doctor. It was a moving piece of advocacy, which did stir the moral conscious. In the end, I was questioning the moral and legal basis for a law, which could send Dr. Morgentaler to jail. Ultimately the court system did work for Dr. Morgentaler, due to our Charter, the best defence against tyranny and injustice.

What does all of this mean for the ongoing student protests in Quebec? It is unclear where the Quebec government will go. Certainly the new laws they have introduced to stop further protest has only fueled more acts of civil disobedience. As with the occupy movement, these acts have gone viral and the issue has become one of students’ rights and the moral obligation to speak out against seemingly “bad” laws. However, to speak out against laws is much different than acting out criminally. It will ultimately be up to the Courts to draw the line between the two.