The Pridgen Case: An University Is Not A Charter-free Zone

As predicted, the Alberta Court of Appeal unanimously upheld the lower Court’s decision in the Pridgen case, agreeing the University’s Academic Council was unreasonable when they disciplined the Pridgen brothers for the less than polite remarks made about their University professor on their Facebook page. For details of the Alberta Queens Bench decision see my earlier posting of the issue here.

Although the result is not surprising, what is a disappointment is the lack of unanimity on the issue of the application of the Charter. Only Madame Justice Paperny tackled the issue of the Charter, the other two concurring Justices preferred to decide the issue on administrative law alone. Even so, Justice Paperny’s excellent analysis, should give the University some pause for thought as she emphasized the absurdity of the University’s position, which would make the University, a bastion of learning and free thought, a “Charter-free zone.” Clearly, the University’s reluctance to allow the Charter into the hallowed halls of learning irked Madame Paperny and so it should us all: a place that teaches the precepts of the Charter should be ruled by it.

In any event, the question of the Charter applying involves an argument over the breadth of the authority of the Charter. Under section 32 of the Charter, the statute governs the relationship between the government and the individual only and does not cover private relationships. Thus, the University, tried to distance itself from Charter requirements by characterizing the student/University relationship as a contractual one between two private parties. Of course, as pointed out by Justice Paperny, the University’s relationship with students is not a mere contractual one. Additionally, the University is far from a private institution as it receives government funds and fulfills government policy. Indeed, there would be no need for the Minister of Advanced Education if the government were not truly a partner in post-secondary education.

Once a determination is made that the Charter does apply, it then becomes difficult to suggest the Pridgen twins did not have a right to express themselves under s. 2(b) on the issue of professor performance or, shall we say, the lack of performance. Granted their comments were not “nice” but they fell well short of defamation and were in the realm of fair comment and fair complaint.

One wonders how the Pridgen scenario differs from the kind of student evaluations done under the auspices of the University. Feedback forms include an area for comments on the teacher. The only difference is the ability for the comments to be viewed by others who have access to the Facebook page. However, can that factor alone attract such harsh consequences? Thankfully, the Court of Appeal said “no” but unfortunately, the full court did not go the extra step and embrace the Charter, and the values for which the Charter stands, by finding the University is not a Charter-free zone.

The Cabbie and the Glider: A Tale of Two Bail Hearings

Two stories surfaced in Canadian legal news this week: the Montreal cab driver, charged after running down a man after he attacked his cab and the British Columbia hang glider operator charged after a woman he was flying with fell to her death.

The Montreal story went viral after a video was posted showing part of the altercation. It is shocking to see the cab driver bombarded by the mob but equally shocking to see his cab turn into the crowd and run down the victim. As heated as the incident was, the bail hearing appearance on May 2 was more so as an outraged group of cab drivers descended on the Montreal courthouse to lend support for the driver. The media picked up story after story from the crowd of cabbies, many of whom were immigrants, of humiliating and violent incidences of passenger misconduct involving racially motivated comments.

According to media reports, the 47 year-old cab driver of Haitian origins, Guercy Edmond, was released on a “promissory note”, with conditions, in the amount of $3,000.00. He was released on bail after a tongue lashing by Quebec Judge Jean-Pierre Boyer over the length of time the cabbie sat in custody (four days) and the crown attorney’s failure to review the video-tape, posted on YouTube of the altercation. He faces charges of aggravated assault under section 266 of the Criminal Code, assault with a weapon (presumably the cab) under s. 267, failing to stop at the scene of an accident under section 252, and dangerous driving causing bodily harm pursuant to s. 249(3).

By way of explanation, our criminal law system, based upon the English common law tradition, presumes an accused will be released from custody without conditions. This bail presumption is very much connected to our cherished presumption of innocence: upon arrest, the accused is presumed innocent until proven otherwise by the crown prosecutor in a court of law before an impartial and independent judiciary. The bail presumption is also consistent with our Charter rights: section 11(d), which constitutionally protects the presumption of innocence, section 11(e), which gives the accused the right not to be denied reasonable bail without just cause, and particularly the s. 7 right to liberty, which cannot be deprived except in accordance with our principles of fundamental justice. On this basis, the bail procedures in the Criminal Code require unconditional release. For example, section 515(1) of the Criminal Code states that:

Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions…

Any decision contrary to this fundamental principle of release can only be done in very restrictive circumstances. However, there are exceptions to the general rule, where the presumption is not for release (also known as a “reverse onus” situation where the accused must “show cause” why detention in not required), for more serious offences such as murder (section 469 offences) or for those accused already on a prior form of release.

Consistent with our desire to protect the innocent, section 503 of the Criminal Code requires an accused, who is not released upon arrest, to be brought before a justice of the peace or provincial court judge for a bail hearing within 24 hours of arrest without unreasonable delay or as soon as practicable. In Alberta, due to a “promise” made by Ralph Klein when he was Premier, there are 24-hour bail hearings available. In any event, once brought before a judge, the Code does permit a bail hearing to be adjourned for a maximum of three days without the consent of the accused. Thus, Mr. Edmond, who was arrested on Sunday, April 29, appeared before a judge, within twenty-four hours of his arrest, on Monday, April 30. At that time, the hearing was adjourned within the three-day time limit, without requiring consent of the accused, to Wednesday, May 2.

In Mr. Edmond’s case, the crown was objecting to his release from custody. Our criminal law requires an accused to be released from custody unless there are cogent reasons not to release the accused. If, as in the case of Mr. Edmond, the Crown objects to release, the Crown must “show cause” or justify why the accused should not be released. In fact, even if the accused is released, the crown must also “show cause” why conditions to that release would be required.

There are three grounds for detention under s. 515 (10) of the Criminal Code. Section 515(10)(a) requires the justice to order detention where it is necessary in order to ensure the accused’s attendance in court. Section 5151(10)(b) requires a detention order where it is necessary for the “protection or safety of the public” including a substantial likelihood the accused would commit further offences or interfere with the administration of justice. The last ground deems detention is necessary to “maintain confidence in the administration of justice.” This last ground requires the justice to consider evidence relating to the strength of the crown’s case, the seriousness of the offence, the circumstances surrounding the offence, and the potential sentence to be imposed upon conviction.

On this basis, clearly, Mr. Edmond, who had no prior criminal record, enjoyed the support of his family and peers, was the financial support for his wife and two teenagers, and who allegedly committed the offences in extreme circumstances, would be an excellent candidate for release. In other words, the crown would be hard pressed to justify his detention. This is the reason why the judge was less than impressed with the prosecutor at the time of the bail hearing: there was no justifiable legal reason why the crown should not have consented to the release of Mr. Edmond. Although the police, in certain circumstances, also have the authority to release an accused from the police station, the charges laid against Mr. Edmond were serious enough to require his attendance before a judge. Mr. Edmond is to appear in court, to set a date for trial, on June 20.

Just a note here on the form of Mr. Edmond’s release. According to the media reports, Mr. Edmond was released on a “promissory note,” which is not one of the authorized forms of release under the Criminal Code. Again, due to the presumption in favour of release without conditions, the forms of release available run from the least restrictive to the most restrictive. The least restrictive form of release is known as an “undertaking,” with or without conditions. This release, also known as a Form 12 release, is a document signed by the accused wherein the accused “undertakes” to attend court on a particular date and time. If there are conditions, such as reporting to a police officer or remaining in a particular jurisdiction, they are listed on the signed form as well. The next form of release, more restrictive than an undertaking, is a recognizance. A recognizance requires the accused to acknowledge a debt to the Crown, which is forfeited if the accused fails to appear in court. The amount is specified in the document and may or may not require the amount to actually be deposited with the court. A recognizance may also require a surety, who is a third party willing to ensure the accused appears in court and follows any release conditions. A surety may also be required to acknowledge a debt to the crown, which may be forfeited if the accused breaches bail. Considering Mr. Edmond was released with a monetary amount ($3000) attached, most likely the form of release was a recognizance with no sureties and no deposit.

One of the conditions of Mr. Edmond’s release requires him to not pick up fares on St. Laurent Blvd. between Sherbrooke and St. Joseph Sts. between 9 p.m. and 6 a.m., which is within the same area in which the incident occurred. According to the evidence read into court, before the events before the video recorded the altercation, started in the cab after Edmond picked up “very drunk” passengers, one of who was the victim, Benoit Kapelli. While in the cab, Edmond was subjected to racially motivated comments and was assaulted by Kapelli, who ultimately left the cab while kicking at the vehicle. Edmond confronted Kapelli, but the other passengers joined in the attack of the cab. Edmond was able to drive away but was still tracking the passengers as they walked. At this point, the explanation for the events become vague as Edmond’s cab either deliberately or accidently swerved into a lamppost close to Kapelli, resulting in the cab’s front fender falling off. Later, as seen in the video, a pedestrian throws the bumper at the cab. Again, watch the video here to see the final moments of the incident.

The hang glider’s fate was not so certain as the Judge adjourned his bail hearing to Friday, May 4 in anticipation of gathering more evidence. The evidence, of course, is actually inside the accused, William Jonathon Orders, who swallowed the crucial memory card capturing a video of the fatal flight. As they say “this too will pass” and with the passing it is likely Mr. Orders will then be released on bail. Mr. Orders is charged with willfully attempting to obstruct the course of justice pursuant to s. 139 of the Code for his attempt to hide the evidence from police investigation. No doubt further charges, such as criminal negligence or even manslaughter, will ultimately be laid, when the physical swallowed evidence is finally retrieved.

Let’s Talk About: Property Rights & The Canadian Charter of Rights and Freedoms

The Alberta election is heating up and is soon to be decided as Albertans go to the polls on Monday, April 23, 2012. One of the many controversial issues raised by the Wildrose leader, Danielle Smith, is on property rights and the absence of such rights guaranteed in the Charter. Smith, on her Wildrose website, suggests the “fundamental role” of government is the “protection and preservation of property rights.” As part of her platform on this “fundamental” issue is the promise her government would “entrench property rights.” She would do this by implementing an Alberta Property Rights Preservation Act, entrenching “basic property rights in the Alberta Bill of Rights” and spearheading “a national initiative to add property rights to the Canadian Charter of Rights and Freedoms.” 

Really? Are we really to believe that this “pressing” issue of property rights should be shoulder to shoulder in our Charter along with our fundamental freedoms such as freedom of expression, freedom of conscious, and equality rights. Should our preoccupation with individual, political, and democratic rights take a back seat to issues of ownership and possession? What will this mean for our criminal law and the ability of the government to reasonably search and seize property for a criminal investigation? Does the corporeal trump the spirit? Is property, which not everyone has the ability to own, require the special attention and protection of our most Supreme laws? Why should property rights, which were specifically and deliberately left out of the Charter, now be placed back in?

Not that we would ever see the unanimous agreement to do so that is required before the Charter could be amended. Do we need the kind of property rights litigation, which occurs in the United States, where property rights were specifically enshrined in their Constitution and viewed as sacred as life itself? And if we feel we do want this protection, are we prepared for the result. For a good discussion on the history of American Constitution property rights, read the SCC decision in Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.).

Danielle Smith may have taken a page from her namesake, Adam Smith’s, Wealth of Nations, with a call to protect life, liberty and property but fails to recognize the positive obligation protecting property would place on the government. Thus, we would need a robust and interventionist government, willing to step into the property rights fray. Entrenching property rights would mean not less government but more government, as the Courts would be busy reviewing the government’s ability to regulate and protect the national interest in the name of the economy. Take for instance the issue of natural resources and the role ownership of such resources would play under a property Charter rights scenario.

Canada does in fact have some experience with protection of property rights as section 1(a) of the Canadian Bill of Rights, 1960, the statutory, quasi-constitutional precursor to the Charter, protects “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.” While this still enacted statute can still be used to “protect” property rights, the legal interpretation of this right has not provided the protection the Wildrose maintains they can provide if elected. 

But would such entrenchment of property rights really “protect and preserve” an individual’s right to their property as touted by the Wildrose? It is instructive perhaps to look at the case law on property rights in the Bill of Rights. This passage of the Bill of Rights was considered by the Supreme Court of Canada rather recently in the 2003 Authorson case, in which disabled veterans attempted to require the federal government to pay past interest on pension funds despite legislation minimizing Crown liability. The end result of the decision, dismissing the veterans’ claim, was to uphold Parliament’s right to expropriate property without compensation.

Legally, an “entrenchment” of property rights does not in and of itself suggest an individual’s right to property would be absolutely guaranteed. Indeed, considering all of our rights under the Charter are not absolutely protected, any “new” Charter rights would be treated similarly. According to s. 1, all of the Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  In addition, both Parliament and each provincial legislature, including Alberta, have the authority to enact legislation contrary to the rights guaranteed in the Charter through the Charter notwithstanding provision contained in s. 33.

Therefore, the Wildrose is promising, in a very heated election, something they cannot themselves guarantee. Undoubtedly these are the best promises to make: no one can take them to task for merely promising to try. Interestingly, the Authorson case was written by the then Alberta appointment to the SCC, Justice Major, who is now trying to sort out the MLA compensation debacle. Of course, the proponents of property rights would suggest it is the poor wording of the Bill of Rights, offering property protection in accordance with due process, which is the problem and which can be easily fixed.

But even if the Charter was amended and property rights were absolutely protected as desired by the Wildrose, the question still remains whether or not protecting property rights is in the best interests of Canadians. If we say “yes” to property rights, then we must be prepared for all kinds of litigation overrunning our justice system such as: litigation on the right of the government to tax individuals; litigation on the government’s right to make decisions on natural resources; litigation on intellectual property rights including copyright and access to information; and litigation regarding criminal law and search warrants as discussed in the SCC case of Quebec (Attorney General) v. Laroche. We could even see spill-over litigation in the area of economic rights, which traditionally has been unprotected by the Charter as discussed in the SCC Gosselin case, which could put Canada’s economic health at risk by promoting the financial sovereignty of the individual at the expense of a strong economy and healthy society.

Thus, in the end, we must decide if property rights are worth protecting in our country knowing the possible legal pitfalls, which may ensue. Let’s ensure the next thirty years of Charter litigation promotes our fundamental freedoms as individuals of choice and free will, entitled to respect and dignity, instead of a document weighed down by possessory rights and self-interest.

Blog Update: The Spy and the Pamphleteer

In previous postings, I have discussed two very different cases now before Canadian courts. The first case concerns William Whatcott, a persistent anti-gay pamphleteer, who is before two different courts connected to his pamphleteering activities. The second case is of Jeffery Delisle, the first person charged with spying under the newly enacted Security of Information Act. Although the two cases are completely unrelated, court decisions in both of these cases were handed down on March 30, 2012.

The first Whatcott case, which is still on reserve before the Supreme Court of Canada, involves the Saskatchewan Human Rights Tribunal’s finding that Whatcott’s anti-gay pamphlets amounted to hate speech. The other Whatcott case, decided on March 30, 2012, is an appeal of the quashing of Whatcott’s trespass charge when he was on University of Calgary lands to hand out his anti-gay literature. The original decision to quash the charge by Provincial Court Judge Bascom can be accessed here.

Just as a refresher, the Supreme Court of Canada Whatcott case is a vitally important decision for the ability of human rights tribunals to uphold the tenants of human rights legislation. It also raises the difficult issue of conflicting Charter rights: in this case the freedom of expression under s.2(b) and freedom of religion under s.2(a) in the context of competing Charter values as found under s.15, which promote respect and tolerance of others in our community.

Although the SCC Whatcott case concerns the constitutionality of the hate speech provision in the Saskatchewan Human Rights Code, the ultimate issue in the case will decide whether or not provincial laws on hate speech must conform with the more stringent hate speech section in the Criminal Code. If so, provincial human rights codes could be essentially redundant, leaving the more difficult to prove Criminal Code sections to safeguard society from the harmful effects of hate speech. Some of the factums filed in support of the SCC argument can be found here.

This SCC decision is of particular interest in Alberta, where provincial election campaigning has touched on the controversy surrounding the Alberta Human Rights Commission and its enforcement of provincial hate speech legislation. The Boisson v. Lund case, also discussed in a previous posting, shares similar issues with the SCC Whatcott. The Alberta Court of Appeal has not as yet released a decision on this case. The controversy in Alberta over this case and the high profile Alberta Human Rights case against journalist Ezra Levant for re-publishing the infamous Dutch “Muslim Cartoon,” has brought repeated calls for abolishing the Alberta Human Rights Commission. The Wildrose Party is campaigning on a platform, which includes abolishing the Commission, instead creating a new Human Rights Division in the Provincial Court of Alberta.

In the other Whatcott case of trespassing on University lands, the case has been so far decided in favour of protecting freedom of expression. In a previous posting, I discussed Alberta Provincial Court Judge Bascom’s stay of trespassing charges against Whatcott on the basis of s.2(b) expression rights under the Charter. On March 30, 2012, the appeal of the decision was heard before Alberta Queen’s Bench Justice Paul Jeffery, who summarily dismissed the Crown appeal and upheld Judge Bascom’s decision. The written reasons for the decision have not, as yet, been released.

Unlike Mr. Whatcott, Jeffery Delisle did not receive a favourable decision on March 30, 2012. Mr. Delisle was refused bail by Nova Scotia Provincial Court Judge Beach and ordered to stay in custody pending his trial. A ban on publication was imposed at the bail hearing and therefore the reasons for dismissing the bail application is unknown. Although Mr. Delisle’s lawyer stated he was “disappointed” albeit not surprised with the decision, there is no word whether or not he will be reviewing the decision in superior court. In the meantime, Mr. Delisle will return to court on May 8, presumably to set a date for trial. Delisle’s lawyer has commented on the case, indicating Delisle is not accused of endangering military troops as a result of his alleged espionage. There is some suggestion Delisle, at the time of the commission of the offence, was heavily into online gaming and had a “computer addiction,” which may have lead to monetary difficulties. For further discussion, read my Spy vs. Spy blog and my blog entitled Let’s Talk About: Diplomatic Immunity. For further reading on the Whatcott cases, read my blogs Law, Literature, and Inherit The Wind, The Road Taken By The Supreme Court of Canada, A Message of Tolerance, Limits of Expression, and Whatcott in The Courts Again.

Don't Pre-Judge! Jury Vetting and the Supreme Court of Canada

Next Wednesday and Thursday, the Supreme Court of Canada will be hearing the appeals of Tung Chi Duong, Vinicio Cardoso, and Ibrahim Yumnu, which raise the issue of jury vetting: a process where the prosecution does a pre-court check of potential jurors. The three Ontario co-accused were convicted of first-degree murder and conspiracy to commit murder involving a contract killing. The Crown’s office, upon receipt of the jury panel lists containing the names of potential jurors, requested police enforcement authorities to do criminal record checks of the listed individuals and to make any comments “concerning any disreputable persons we would not want as a juror.” The Crown did not disclose the information received through this pre-vetting process to the defence, although there was some evidence trial counsel was aware of this practice. The information was used by the trial Crown in selecting the jury for the trial.

In terms of the legislative authority to perform such a check, neither the Criminal Code rules relating to the jury selection process in court nor the pre-trial rules found in the provincial Juries Act, as enacted at the time of the trial, permitted the procedure. It should be noted that the Ontario Juries Act has since been amended, under s.18.2, to provide a procedure for police to pre-check a potential juror for the presence or absence of a criminal record. Such a check is required under s. 4(b) to determine if a potential juror is ineligible to serve as a juror due to a prior conviction for “an offence that may be prosecuted on indictment.” The phrase “may be prosecuted on indictment” refers to the mode of trying the accused’s case in the criminal courts.  An indictable offence is considered to be a more serious crime and carries a higher penalty than a less serious summary conviction offence. Certain indictable offences give the accused the right to have the trial in the Superior Court as opposed to Provincial Court. Some indictable offences, such as murder, also give the accused the right to a jury trial.

Generally, pre-vetting of jurors is not an acceptable practice in Canada. Such a pre-trial process is contrary to the fundamental principles of justice, which require the offender to be tried before an independent and impartial jury. Since the advent of the Charter, this fundamental principle has been constitutionally protected under s. 11 (d) and is inexorably bound up with another core criminal law principle: the presumption of innocence. I have written at length on the historical significance of the presumption in earlier postings. More generally, this procedural right to a fair trial is also protected under section 7 of the Charter as the principle lies at the very heart of the administration of justice.

The issue is one of impartiality under the Charter. Section 11(d) protects an offender’s right to a fair trial before an independent and impartial jury. Permitting pre-vetting of jurors has the potential effect of selecting biased juries, which are neither independent nor impartial, but based on selected criterion. The resultant effect is a pre-packaged or pre-determined jury, which would therefore favour the party using the pre-selection process. In other words such a jury would “pre-judge” the issues.

Even the potential for bias is contrary to our concept of trial fairness. As discussed by Justice Cory in the Bain case, apprehension of jury bias is to be avoided as the mere appearance of impartiality would be contrary to Charter principles. Although the concept holds the administration of justice to a high standard of impartiality, the apprehension of bias must be reasonably held. Thus, the question to be determined on the issue of bias is as follows: would reasonable and right-minded persons find there a reasonable apprehension of bias in the circumstances.

This question brings us back to the Duong, Cardoso, and Yumnu case. On appeal to the Court of Appeal for Ontario, appellate counsel did not refer to the arguments as outlined above but focused instead upon the Crown’s lack of disclosure of the vetting process. In the appellant’s view, this lack or delay of disclosure compromised the defence’s ability to make full answer and defence under s. 7 of the Charter. This position was easily dismissed by Justice Watt, speaking on behalf of the Court, as there was no evidence of any actual or perceived unfairness of the selection of the jury based on this non-disclosure. Unfortunately it appears the defence will be making the same arguments before the Supreme Court of Canada as revealed by a perusal of the appellant Yumnu’s factum.

However, a large number of Intervenors have filed material and will be making submissions on the issue such as the Criminal Lawyers’ Association, the Ontario Crown Attorneys’ Association, David Asper Centre for Constitutional Rights, Information and Privacy Commissioner of Ontario, Canadian Civil Liberties Association, and the British Columbia Civil Liberties Association. It remains to be seen what arguments will be finally presented on this issue and it will be of great interest to see how the Supreme Court of Canada ultimately deals with the issue of pre-vetting a jury.

In the next posting, I will continue the discussion through the international perspective on the efficacy and issues surrounding jury vetting.