Whatcott In The Courts Again

Last Fall, I discussed the cases of William Whatcott in previous blog postings. I say cases, as William Whatcott is before the Courts in two different, yet related matters.

On October 12, 2011, the Supreme Court of Canada reserved decision on the Whatcott case, which raised the issue of the constitutionality of the hate speech section of the Saskatchewan Human Rights Code. Whatcott, a prolific pamphleteer, was found in violation of the Saskatchewan provisions for delivering his pamphlets at various homes in Regina and Saskatchewan. People complained about the pamphlets some of which were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and "Sodomites In Our Public Schools." As a result, Whatcott was fined for violating s. 14(1)(b) of the Code on the basis the pamphlets “promotes hatred against individuals because of their sexual orientation.”

The Saskatchewan Court of Appeal overturned the Tribunal finding, but not on the basis of Whatcott's Charter claim. Justice Hunter, after analyzing the pamphlets and the freedom of expression protections found within the Saskatchewan Human Rights Code, namely s. 5 and s. 14(2), found the pamphlets were not hate speech under the Code. Although Justice Smith agreed with the analysis, she but did so mainly on the basis of the relationship between the hate speech provisions and the constitutional values of freedom of expression as entrenched in the Charter. The Saskatchewan Human Rights Tribunal appealed the decision to the Supreme Court of Canada.

The other case, presently in the news, relates to Whatcott's pamphleteering efforts in Alberta on the University of Calgary campus in 2008. At the time, Whatcott was banned from the property and was served with a trespass notice for being in violation. Alberta Provincial Court Judge Bascom stayed the proceedings on the rationale the notice violated s.2(b) of the Charter. The Crown has now appealed this decision, which will be heard on March 30, 2012 at the Alberta Court of Queen's Bench. 

Read my previous postings on the issue here:

The Road Taken By The Supreme Court of Canada

A Message of Tolerance

Blog Update: The Limits Of Expression

Law, Literature, And Inherit The Wind

Shakespeare's Courts And The Promise To Marry

Today let's travel back some three hundred years from Dickens to Shakespeare. Shakespeare would undoubtedly be familiar with the Prerogative Court and the Consistory Court of the 1500s. Prerogative Court was a Church Court in which the powers and privileges of the sovereign were exercised. The Prerogative Court of Canterbury handled the probate of Wills for the south of England and Wales. This court was eventually subsumed into the Court of Probate in 1858. You can find some of these Wills at the National Archive website such as Jane Austen’s Will from 1817.

The Consistory Court of London was another Church Court involved in marital issues including disagreements over estates. In "The Lodger Shakespeare" by Charles Nicholl, Shakespeare's life is illuminated not through his plays but through his personal relationships while he lived in London. Nicholl examines those around Shakespeare: his landlord and landlady as well as those he interacted with on a daily basis. Nicholl describes Shakespeare witnessing or actually presiding over his landlady's daughter's plight ceremony or betrothing. According to Nicholl, such a ceremony was a recognized form of marriage occurring before the religious ceremony. This betrothing had the force and effect of a signed contract and an aggrieved party could sue on the basis of a breach of this plight troth.

These contracts were the precursor to the common law marriages recognized by the courts even today. Nicholl discussed the difference between the de futuro marriage (a future agreement) contract and the de praesenti (a present marriage contract). The de futuro contract is only binding upon consummation of the marriage, while the de praesenti is binding immediately. Indeed, Shakespeare’s play Measure for Measure revolves around such a ceremony and contract with a delightful “play” on the sexual requirements to make such a contract enforceable.

In Canada there is no right to sue on a breach of a promise to marry. However, there may be an action to return an engagement ring if an engagement is broken. In D’Andrea v. Schmidt, a 2005 Saskatchewan Court of Queen’s Bench case, the defendant Kim Schmidt, who was the wearer of the ring, argued that such a lawsuit was based on an “anachronistic law” which discriminated against women and perpetuated stereotypes contrary to s.15 of the Charter. Such a cause of action, she argued, treated women like chattels and was not within the spirit of societal values. Needless to say, this argument did not have the “ring” of truth as the Court found a lawsuit for the return of gifts given in promise of marriage could be brought by either sex.

In McManus v. McCarthy there was a valid marriage but the husband wanted the return of the engagement ring after the marital breakdown. Madame Justice Kenny ordered the return of the ring as it was found to be a conditional gift only. No surprise as this marriage lasted 9 days and occurred after 4 prior engagements!

Betrothals do matter, however, when it comes to immigration. Refugee applications in Canada can be based upon the coercive effects of arranged marriages in foreign countries such as Ghana. See this link for a case on point. Such “marriages” can start at a very early age with a betrothal and thus an expectation of marriage at a much later date. This situation is a contract de futuro where the woman, when old enough to appreciate the situation, does not consent. It appears these claimants are not typically granted refugee status.

Shakespeare was therefore very much aware of the necessity for the rule of law as in his famous line from Henry VI suggests:"The first thing we do, let's kill all the lawyers." This line was not written to incite against the law or rail against lawyers, but was written to underscore the need society has for the rule of law, without which, anarchy reigns.

Testifying Behind The Veil: The Facts In The N.S. Case

On September 10, 2008, M---D.S. and M.---L. S. appeared before His Honour Judge Weisman for their preliminary hearing on charges arising out of historical sexual assault allegations. The victim, N. S., was a child at the time, when, according to her allegation, her uncle and her cousin sexually assaulted her. Although she complained of the assaults at the time, her father did not want the matter to be further investigated.

It was only as a mature adult, married and with children of her own, did N. S. reinstate the allegation and charges were subsequently laid. The allegations were such that the primary evidence against the two accused was from the alleged victim, making credibility the main determining factor in the case.

Unfortunately, this kind of situation, involving historical sexual assault allegations involving family members, is not unusual. What did make this case unusual was the manner in which the witness N. S. was dressed when she attended court to give evidence. As a practicing Moslem, N. S. was wearing a full body covering, known as an hijab, with a face covering veil, called a niqab, which showed only her eyes.

Defence counsel objected to her garb and requested the judge order the removal of the veil in order to conduct face-to-face cross examination. Judge Weisman, in open court, without conducting a formal hearing in which N.S. would have testified under oath and be subject to cross examination, questioned N. S. on her reason for wearing the veil. N. S. confirmed wearing the veil for religious reasons of modesty and only disrobing for family members. Another reason she did not wish to unveil herself was that:

--- the accuseds in this case are from the same community, they all go to the same place of worship as my husband as well and I have had this veil on for about five years now and it is --my face does not make any special, you know, like I know that--you know, there's body language, there's eye contact. I mean, I can look directly at the defence counsel, that is not a problem...it is a part of me and showing my face to--and it is also about--the religious reason is not to show your face to men that you are able to marry. It is to conceal the beauty of a woman, and you know, we are in a courtroom full of men and one of the accused is not a direct family member. The other accused is a direct family member and I, you know, I would feel a lot more comfortable if I didn't have to, you know, reveal my face. You know, just considering the nature of the case and the nature of the allegations and I think, you know, my face is not going to show any signs of--it is not going to help, it really won't.

N. S. was, however, unveiled for a driver's licence photograph, but a female photographer took the image while N. S. was behind a screen.

Judge Weisman ordered N. S. to remove her veil for her testimony. The decision was quashed upon judicial review by Justice Morrocco, but an application to permit N. S. to wear her veil during testimony was refused. This decision was appealed to the Ontario Court of Appeal, where, in a well written and reasoned decision, Justice Doherty, speaking for the panel, upheld Justice Morrocco's decision and remitted the matter to the preliminary hearing Judge to make the final determination on whether or not N. S. could testify behind the veil.

In another posting, I will discuss the reasoning for these decisions, but today I would like to point out the significance of the information given by N. S. at the time she was questioned by the Court, albeit in a less than procedurally satisfactory situation.

It appears, there are, in actuality, two issues to determine: the wearing of the veil for religious reasons and the wearing of the veil in order to provide comfort and privacy.

One issue, the wearing of the veil in accordance with Moslem modesty laws and tradition, is an issue of religious freedom under s.2(a) of the Charter. In this instance, this right comes into direct conflict with the accused's right to face his or her accuser for full answer and defence of the charges and is a protected principle of fundamental justice under s.7 of the Charter. 

The other issue, of comfort and privacy, engages N.S.'s right to protect her personal integrity and self-identity during the criminal process. Thus, society's interest in protecting trial fairness and in encouraging reporting by victim's of abuse is engaged as well. 

This delineation of the two issues is important as the final determination must take both concerns into account. Indeed, there are already provisions in our laws, specifically in the Criminal Code, to provide a more comfortable experience for a witness. One way this can be done is by permitting the witness to testify behind a privacy screen according to s.486.2(2), if "necessary to obtain a full and candid account from the witness." If so ordered, only the Judge and the lawyer conducting the examination can view the witness. Such an order strikes the right balance: as witness privacy rights are preserved and the trier of fact is able to assess demeanour and credibility. The constitutionality of this procedure was upheld by the Supreme Court of Canada in the Levogiannis case.

The other issue at stake, involving the freedom of religion and the competing interest of an accused's fair trial rights, must be assessed on a different basis. It is this clash of ideals which is at the heart of the N. S. appeal recently heard before the Supreme Court of Canada, and which will be further discussed in another posting. But here too, I suggest, there is an opportunity to strike a balance and come to an accommodation which preserves the rights of all.

Testifying Behind The Veil: A Study In Conflicting Charter Rights

Last week, the Supreme Court of Canada (SCC) reserved judgment after hearing argument on the N.S. case involving a witness's religious right to wear a naqib or a face covering veil while testifying. This Charter right comes into direct conflict with the right of an accused, under s. 7 of the Charter, to full answer and defence, a principle of fundamental justice and "one of the pillars of criminal justice on which we heavily depend to ensure the innocent are not convicted." 

As discussed in previous blogs, Charter rights are not absolute and may be restricted by the government if justified in a free and democratic society. Charter rights may also be limited when rights conflict. In those instances, the Court is required to determine the parameters of the competing claims in a just and appropriate manner consistent with Charter values. Just how the Court must approach this decision is the subject of this blog as a primer to the specific rights at issue in the N.S. case, which I will fully discuss in a future posting.

How to balance competing Charter rights? In the Dagenais case, Chief Justice Lamer considered the competing rights where a publication ban is ordered in a criminal trial. According to Lamer, "a hierarchical approach to rights, which places some over others, must be avoided" in favour of a balanced decision which "fully respects the importance of both sets of rights." As a result, the publication ban prohibiting CBC from showing the fictional account of abuse in The Boys of St. Vincent was overturned, despite the fair trial interests of the accused Christian Brothers, but on the basis the ban was overly broad and too protective.

The correct approach is, therefore, to balance the conflicting interests instead of choosing one right as more important, and thereby, more worthy of protection. This balancing must take into account all interests at stake, including the societal interest in promoting and protecting both sets of rights.

In the N.S. case, freedom of religion and the right of an individual to privacy conflicts with the principles of fundamental justice, which lay at the core of our criminal justice system. Add to that, the societal interest in promoting multiculturalism and tolerance and in protecting the presumption of innocence and fair trials, and the issues become even more complicated. 

It is these hard cases, where all interests are valid and Charter worthy, which make for interesting law. And it is the Court's subsequent response, which can change society.

Connecting With International Human Rights Day

Today is International Human Rights Day, a celebration of the establishment of the Universal Declaration of Human Rights in 1948. The document was the natural progression of the newly formed United Nations in 1945, which was created in response to the atrocities of World War II. Below is a photograph of then Minister of Justice and Attorney General of Canada, Louis St. Laurent, signing the UN Charter in San Francisco:

This act in 1945, appeared to solidify Canada's presence at the UN as a peacekeeping nation and stolid protector of human rights.

In actuality, although John Peters Humphrey, a Canadian law professor, was the original drafter of the Declaration, Canada was not initially supportive of its implementation. William Schabas, presently a professor of international law and Director of the Irish Centre for Human Rights, in his excellent journal article entitled Canada and the Adoption of the Universal Declaration of Human Rights, explains Canada's initial refusal to support the Declaration when Lester Pearson, the then External Affairs Minister to the UN, abstained in an earlier vote.  It was only after pressure from Canada's allies, the UK and the USA, that Canada's final vote was changed in favour of implementation.

Schabas, through a detailed review of archival documents uncovered the real reason for this reluctance, bordering on "hostility," shown by the Canadian delegation. Pearson and others in the Canadian Government were concerned with the entrenchment of the broad human rights, which would become available under the Declaration, and could be used by "suspect" groups in Canada. In particular, the government feared the rights of freedom of religion and freedom of association would protect the Communists and Jehovah Witnesses, two groups identified by the government as "subversive" groups. Indeed at the time, the infamous Padlock Laws, enacted by then Quebec Premier Duplessis, which empowered authorities to "padlock" any building which held any "communist" literature or permitted the gathering of anyone associated with communism, was still in force.

It is, therefore, important to recall this dark side to Canada's history when rejoicing in our global commitment to freedom and choice through protections of human rights. Our successes in the area seem to be that much more impressive when we embrace the missteps of the past and move toward a more inclusive tomorrow.

This cannot be more so when we recall Canada's recent contribution to international human rights through Louise Arbour, an exceptional legal jurist who served as the High Commissioner for Human Rights and as Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda. Admittedly, her tenure did not go without controversy, however, she is a prime example of the dedication Canadians have shown to our international covenants.

More importantly, what makes today a cause for Canadian celebration and pride, is our commitment to human rights nationally. Our Charter of Rights and Freedoms has changed the fabric of Canadian society and has given life and meaning to fundamental freedoms and protections. It is this duality of commitment, which is epitomized by Louise Arbour as a former Supreme Court of Canada Justice, who wrote strongly in favour of the protection of rights, and, as the author of the Arbour Report, uncovered abuses at the Prison for Women at Kingston Penitentiary.

This truly is the legacy of the Declaration.