Would You Like Some Coffee With That Mug-Shot?

In the morning, I like to pour myself a hot steaming mug of coffee. The coffee helps me clear my mind and start the day. But what if, groggy and disoriented, I reach into the cupboard and blindly choose a mug? And, not only is it not my 100-reasons-why-lawyer's-are-essential mug, but it is a mug with a mug-shot on it! What? How is this possible?

Well, it is possible. Recently, the Art and Artifice blog, on art and law, commented on old mugshots being placed on coffee mugs for commercial sale. There is an excellent discussion on the blog concerning the legalities of this. Privacy and reputation is an issue as well as the philosophical question of when have criminals paid their debt to society? Is the legal punishment enough or do we, as a society, require something more than that? And, do we have a right to require more? 

How would these mugs go over in Canada? Certainly, a fundamental Charter value is individual dignity and self-worth. Privacy is one of the most personal and therefore strongly held Charter rights we enjoy. Usually privacy rights give away to security and protection of society - just leaf through the Criminal Code and the Anti-Terrorism Act for examples of that. Reputation is also a right protected through the Charter. In the SCC case of Hill, Justice Cory said this about reputation:

 Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights.  It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.

So it appears these mugs could potentially damage one's reputation as well as possibly become an unsanctioned form of punishment.

Does the source of these photos matter? In Canada, this too may be an issue. On a reading of s. 2(3) of the Identification of Criminals Act (R.S.C., 1985, c. I-1), identification/arrest photographs can only be used for the purpose of

affording information to officers and others engaged in the execution or administration of the law.

So it appears the photos can be used for a photographic identification line-up but can’t be used for commercial purposes. If so used, is there an illegal search and seizure argument? Is there a civil suit for the harm caused by an illegal search and seizure and the resultant damage to a reputation?

I will leave that to you to ponder.

Is "Innocent Nudity" Expression?

When is a nude a nude and when is being nude, contrary to the Criminal Code? When you walk through a local park sans clothing or when you go through a Tim Horton's drive-through with nothing but your charms to recommend you.

Today, in my human rights class, we talked about just that. Is nudity expression? And if so, does s. 174 of the Criminal Code, which prohibits public nudity, violate s.2(b) of the Charter? 

It appears Ontarians, Mr. Coldin and Mr. Cropper, would answer yes to both. Both men are charged with public nudity under s.174  of the Criminal Code and their counsel have argued a Charter violation. According to these avowed naturists, their nudity is an expression of a oneness with nature, in other words going au natural for nature. This "innocent nudity," they argue has expressive content and should not attract criminal penalties. 

First, the class tackled the issue of expression: is nudity expression? Well, it turns out the answer is not so clear. What is the expressive content of nudity? Is wearing nothing able to express anything? Let's just ask the Emperor who thought he wore new clothes. Was he "expressing" something when he waltzed down main street in his natural born state? Perhaps. And Coldin and Cropper, are they saying something through their nudity? I say yes. An expression of "getting back to nature" and an expression of "let's get back to the basics in this overly material world." Could this be a call to arms (uncovered of course) for an Occupy Nature movement? 

Now we have determined expression. How about the restriction? See anything wrong with the Criminal Code section? The class did.

s.174(1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

As Arnold Horshack would say, hand raised, "Ooh-ooh-ooooh."  How about this. It harkens back to the basic principles of criminal law, which require a minimum mens rea requirement.This offence may not be a true crime and attract a subjective liability requirement but does this section even permit an objective liability standard? Section reads more like an absolute liability offence: you are nude, you are guilty.

Aha, you say. How about that lawful excuse? What kind of "lawful" excuse could there be for being nude? Okay, you sleep in the nude, fire alarm goes off in the middle of the night and you jump out of bed and run outside stark naked. So the lawful excuse seems to be: I did not intend to be publically nude. A lack of mens rea, which is a required element of an offence, as a lawful excuse?

I could go on, but I will stop here.

What kind of offence is this anyway? Is it Charter bad or Charter good? What do you think?

Update on Wednesday, October 12, 2011 at 6:27PM by Lisa A. Silver

A student in my human rights class reminded me of the 1991 Guelph, Ontario woman who took her shirt off on a warm day. She was charged with an idecent act contrary to s.173 of the Criminal Code. CBC recently did a follow-up story of the case. The Ontario Court of Appeal acquitted Gwen Jacob on the basis that her actions did not amount to an indecent act, which required a sexual context. The Charter was not invoked. This decision did open the way for breast feeding in public, however it did not start a female shirtless movement, either on a hot day or otherwise. You will have to go to Europe for that.

Bodily Substance Warrants Under s. 487.05

Some criminal law fun!

In my criminal procedure and evidence class at MRU, we discussed warrants to take bodily substances for DNA analysis under s. 487.05 of the Criminal Code. Such samples must be taken in accordance with the investigative procedures as set out in s. 487.06, which include taking samples by the plucking hairs, by the taking of buccal swabs, or by the taking of blood by "pricking the skin surface with a sterile lancet." A peace officer, who "by virtue of training or experience" may be authorized under the warrant to take these samples.

Okay. I was a little concerned with this. Potentially a non-medical person can be authorized to take a sample of blood based on "experience" only? In the words of my teenage daughter: OMG. Calm down you say - under s. 487.06 this procedure is done by "pricking the skin surface with a sterile lancet." Sounds easy doesn't it? Well, take a look at the WHO Guidelines for Drawing Blood and it doesn't look so easy or, quite frankly, so safe. This is a medical procedure and there are possible medical outcomes.

In contrast, take a look at the blood sample warrant authorization for imparied/over 80 offences involving death or bodily harm under s. 256. Such samples must be taken by a qualified medical practitioner "who is satisfied that taking the samples would not endanger the person's life or health." This is what we want! We want medical procedures to be done by qualified people. We want samples to be taken only if the benfits outweigh the harm. Why are we not providing the same protection for taking bodily samples for DNA purposes?

Yes, s. 256 authorizes the taking of blood samples, which is more invasive than a skin prick by lancet. Agreed. But there are still potential health risks whenever blood is taken. Particularly when the person taking the sample may be doing it "by virtue" of experience and not necessarily training. 

Answer? We need some safeguards albeit not the high level of safety mandated by s.256. Otherwise, such authorization may be contrary to Charter rights and values. But I will leave that discussion to you.