The Road Taken by the Supreme Court of Canada

The Supreme Court of Canada, this Fall has already released a number of important judgments. The PHS Community Services Society decision on Ministerial discretion, or lack thereof, under s.56 of the CDSA for an exemption of a safe injection site in Vancouver is one such case. Another, is the Crookes v. Newton case in which the Court described a hyperlink in a website article as a reference and not a defamatory publication. 

The Court has also heard and reserved on some controversial cases such as the Whatcott case involving the constitutionality of the hate speech provisions in the Saskatchewan Human Rights Code. Whatcott is a good example of the difficult issues found in a Charter case involving conflicting fundamental freedoms as the freedom to express competes with freedom of religion. Not unusually with these conflicts, there is rarely a clear winner. As Ronald Dworkin, an American constitutional scholar, would say, one right does not "trump" another. For our rights in Canada, although guaranteed, are limited within the Charter itself. Ever reasonable, we Canadians prefer the balanced route, the road taken so to speak.

For tomorrow's blog we will be "taking rights seriously" as I speculate on the case the SCC has not yet heard, but should, and possibly, will. 

How To Celebrate "Persons" Day Next Year

October 18 was "Persons" Day in Canada. The moniker arises from the Edwards, et al case, decided 82 years ago, in which the British Judicial Committee of the Privy Council (JCPC), the then highest Appellate Court for Canada, defined women as "persons." This decision gave women the right to sit in the Senate. A right previously, and vigorously denied to women. The five women, who through their tenacity and will-power, appealed this case, are now known as the "Famous Five." In celebration of their achievements, equality rights for women is celebrated throughout Canada. Through their actions, they have inspired many.

There is no doubt the result of this achievement was a crucial and watershed moment for women's rights. There is no doubt the effect of this fight was also an important moment in Canadian law as Lord Sankey's decision brought the concept of our Constitution Act of 1867 into a modern and fruitful interpretation. One that is reflected today in our Charter. However, as with all "celebrities" there is another side to this story.

These women were politically powerful. Emily Murphy was a Magistrate, Nellie McClung was a Member of the Alberta legislature, and Louise McKinney was an active member of the Temperance movement. In short, they were important women who were personally affronted by gender inequality. Their fight did not include the concept of equality for all minorities or vulnerable groups. Indeed, their fight was for equal rights for women like them; politically powerful and of British descent. Indeed, Emily Murphy, held what we would categorize as, racist views, particularly towards Asian-Canadians and Afro-Canadians. Just read, if you can stand to, her book entitled Black Candle.

However, this does not mean we should not celebrate this moment or event. A quick glance at the celebratory events held throughout Canada show a remarkable array of events involving women of all nationalities and ethnicities. This is the true legacy of the Persons case.

Yes, women are people too but so are Aboriginal women, and Asian-Canadian women, and Afro-Canadian women, and thankfully and proudly the list goes on. So next year, I will celebrate this seminal moment by pausing for a moment and cheering for all women of all backgrounds in our country.

Wristbands Are In Effect: The "Keep A Breast" Campaign

My daughter is an engaged and informed teen. She reads the news and we discuss controversial issues as a family. She speaks out against injustice and lends her support to marginalized groups. Recently, she showed her support when she and a group of friends attended the gay pride parade. It was a positive experience from which she learned that tolerance and diversity are essential values to a healthy and vibrant community. In short, she is a good citizen.

The other day, after a trip to the nearby shopping mall, she came home flushed with excitement. She had "purchased," using her own money, three silicone "message" wristbands in support of breast cancer. As she proudly displayed the colourful wristbands, she read them out: "I Love Boobies," two of them said; "Check Yourself (Keep A Breast), the other said. To me this was clever messaging in a teen-friendly package. As they "say" Facebook, I "like" it and give it a "thumbs up."

On the weekend, I read, in the newspaper, about parents in British Columbia who don't like it. They find the wristbands offensive and distracting. So much so, the local school banned them. I did what any instructor of human rights would do, I cut out the article for my class.

Today in class, we discussed our fundamental freedoms guaranteed by the Charter, specifically the right under s.2(b) as:

the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

The discussion ran through many controversial examples of expression such as public nudity, burlesque dancing, t-shirts depicting violence against women, and even irreligious album covers. The discussion around these issues was often heated and divisive, but then we discussed the wristbands. In this discussion, everyone was in accord with each other: the wristbands are not offensive as they express an important public health message. The message was a cause to support, not to banish.

In a similar case, the United States District Court agreed. According to Madame Justice Mclaughlin, the school imposed ban of the wristbands was found to be an unconstitutional violation of the students' First Amendment rights.

What would happen here in Canada? Considering the Supreme Court of Canada's broad and expansive reading of freedom of expression, there is no doubt the wristbands would be protected expression. Whether or not the code of conduct limiting this expression, would survive s.1 reasonable limit scrutiny requires a more nuanced analysis. I am inclined to believe this prohibiton would not survive Charter scrutiny. A school code with such broadly based prohibitions would not minimally impair a student's right to express themselves. 

In the end, the choice is a personal one. To me, however, the choice is clear: I Love Boobies!

Update on Wednesday, October 19, 2011 at 10:59AM by Lisa A. Silver

Consider this: The Canadian Broadcast Standards Council okays Buchcherry's song entitled Crazy Bitch as it is "not abusive" but "I Love (heart symbol) Boobies" breast cancer wristbands are banned and branded offensive. Go figure?

When Does One Marijuana Plant Plus One Shared Joint Equal Nine Months Incarceration?

Yesterday, I read a number of twitters about the new Omnibus Crime Bill now making its fast and furious way through the Canadian Parliament. This particular set of tweets pointed out an absurdity: a person can be sentenced to a mandatory 9 months in jail for growing a marijuana plant, smoking a joint with friends, all while sitting in the comfort of his or her own rental apartment. My first reaction was one of disbelief. I shared this tweet with my criminal procedure class with interesting results.

Some of the students, not unlike my reaction, gasped and shook their heads. But there was one student who applauded the action. This student, as an owner of rental property, was glad to hear that property rights will be protected. Instead of that much bandied about acronym (lawyers love acronyms!), NIMBY, it was NITPILO – Not In The Property I Lease Out. The student had a good point.

So I decided to investigate this new amendment further. Upon reading the actual amendment, the following became clear:

1. This is a mandatory minimum sentence or MMS
2. Applies to less than 201 marijuana plants
3.  Must be convicted of production for the purpose of trafficking
4. One of a list of factors must apply
5. One of those factors is the accused “used real property that belongs to a third party”

What does this add up to? Well, an argument. My spouse, who is also a criminal lawyer, and I had a boisterous argument over the application of this new amendment. The issue was; who can be captured by this amendment?

The argument revolved around the offence of production for the purpose and the meaning of using property “belonging to” another. So, we did what all good lawyers do when we disagree, we ran to our respective computers and did some legal research.

What did we find? I found more questions than answers. Although an accused will be acquitted of possession for the purpose of trafficking if the marijuana is for personal use, not necessarily so for production for the purpose. Under the Controlled Drugs and Substances Act (CDSA is the acronym), production includes “cultivating, propagating, and harvesting.”

So yes, you a grow a plant or two and harvest it to make a joint, you are producing contrary to the Act. But it must be for the purpose of trafficking. Okay, so if you produce for yourself only, you are not within this new amendment. But, if you grow the plant, harvest the plant, roll a joint and give the joint to a friend– that is trafficking the produced drug.

But how about that last factor – in rental property? It says real property belonging to a third party. My husband and I really argued about this. Many drug forfeiture hearings revolve around ownership of the property. The ownership is sometimes obscured through numbered companies, which are actually owned by criminal organizations. His argument was; this would only apply to those nefarious cases. I disagreed; this factor refers to rental property. It is protecting my student and many others who rent out property.

Who is right? Just read the House of Commons publication explaining the new legislation. The factors are for “health and safety.” Remember Safe Communities Act. The aggravating factor is committing the offence in a rental property.

Bottom line? The math does add up if there is a situation of a grow-op in a rented home. Bad things happen to homes used as grow-ops and adding a further disincentive to do this can be a good thing. Whether or not a MMS (acronym for mandatory minimum sentence) is appropriate or constitutional is for another blog.

Where the math does not add up however, is in the situation of the lost soul who grows a couple of plants, makes some joints from them and invites friends over for a smoke in his rented apartment. Is that justice? You do the math.

My question to the lawyers out there: in light of yesterday’s SCC decision in Cote, in which the Court showed strong support for Charter values and rights in their 24(2) analysis, would this legislation pass Charter scrutiny under a s.1 reasonable limitation argument?

Poetic Justice?

Does poetry have a place in the courtroom? An Ottawa Crown thinks so. In an attempt to convince a judge to convict an accused of an impaired driving charge, the Crown set his submissions to rhyme. Although the judge convicted the accused, she did not mention the use of the unusual literary device. My advice to the Crown: don’t quit your day job.

Poetry and the law are no strangers. Many eminent poets have also been trained in the law such as the American, Wallace Stevens and the Spanish poet, Frederico Garcia Lorca. In Canada, F. R. Scott was a legal scholar who also waxed poetic. He held the position of the McGill Dean of Law in 1961 and was a well-respected constitutional/human rights litigator. Indeed, he was a vocal proponent against the Quebec anti-communist statutes known as the “Padlock Laws.” His poems are beautiful. They are insightful reflections of a proud Canadian and are well worth reading.

But does poetry, for it’s own sake, have a place in the legal arena? It depends on the use. In the Emkeit case, the Crown read an inadmissible and inflammatory poem to the jury on a murder trial. Although the majority of the SCC did not overturn the conviction, the strongly worded dissent by Hall, Spence, and Laskin JJ. suggest they were not amused by the “so-called poem.”

On the other hand, in light of the contextual approach used by the SCC in Charter cases, poetry and other literary material may have a place in elucidating and interpreting Charter rights and values.

For those interested in further reading, there are suggestions at the Law and Literature blog from April.

Update on Friday, October 14, 2011 at 1:03PM by Lisa A. Silver

I just did a very quick search of Supreme Court of Canada cases to see if any literary books and/or authors have been refrred to or quoted. In the 2003 Wu case, Binnie J., speaking for the majority, on the issue of the use of conditional sentences in lieu of fines, referred to the concept of debtor's prison and said:

The trial judge of course put his finger on a serious problem.  Debtors’ prison, a dreadful institution excoriated by Charles Dickens in Little Dorrit, is no longer with us.  But according to the most recent report from Statistics Canada, 17 percent of all people in custody in provincial or territorial institutions in 2000-2001 were jailed for default on unpaid fines...

By using the Dickens analogy, Binnie J. quickly transports us to the dank and dark world of 19th century England with great effect. Now, this is the way law and literature can really connect!