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.

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

Freedom of Expression: Poems, Posters, And Billboards As A Form of Complaint

In previous postings, I discussed the Occupy movement's "Tent Cities" as a form of political protest with expressive content and therefore protected expression under s.2 of the Charter. Once Charter protected, the analysis then shifts to the s.1 limitation analysis to determine whether or not a restriction of that expression is justified in a free and democratic society.

Political protest, as expression, is readily accepted as worthy of protection. The difficulty, however, is when we look to more obscure kinds of expressive protest, such as a personal complaint. This was the case in a recent decision by the Ontario Court of Appeal in R. v. Jeffers.

Mr. Jeffers was convicted of mischief and counselling murder as a result of distributing and plastering posters across Toronto, which referred to his dire financial situation caused by the bank's re-possession of his home. In one poster, the basis for his convictions, Jeffers reproduced a photograph of a city councillor with the councillor's name and the word "murder" as seen below:

Murder Help

Councillor Thompson Jeffers

Help Black 647-xxx-4476
We Black

Mr. Jeffers, who was not originally from Canada, had a grade 5 education. According to Mr. Jeffers, the posters were a cry for help and were not intended to harm the city councillor, who had helped Mr. Jeffers in the past. The councillor did not testify at trial.

In quashing the convictions and substituting acquittals, the Court of Appeal, applying the legal principles required to prove the offences, referred to postering as "an effective and inexpensive means of communicative expression" and therefore "criminalizing this kind of conduct is not in society's best interest." The posters, albeit crude and childish, were a public airing of an individual's frustration with a plea for help from the City and were, in light of all of the circumstances, not criminal.

The Jeffers case made reference to another earlier Ontario Court of Appeal case, R. v. Batista, wherein the accused wrote poems and posted the verses throughout a Mississauga neighbourhood. The poems were about the accused's city councillor, and as with Jeffers's posters, not the most erudite literature, but were found not criminal in nature. A sample of the impugned section of the poem is reproduced below:

Now this bad driver that

WE only know as Pat Saito

who run away from thataccident

site is going to think twice

before backing up and looking at

pot holes instead of doing

Her job

We are going to dig a pot hole

about six feet long and 3 feet wide

and five feet deep to hide

her body and God will take care

of Her Soul, but We can not

forgive her for doing nothing

She can keep running

at a good pace but

We will make sure

that She is in HEAVEN

and out of the Race.

In this case, the Court considered the elements of the offence of threaten death in the context of freedom of expression under s. 2 (b) of the Charter and the vital role political satire, albeit "amateurish, foolish, and offensive," plays in a democracy. Indeed, the Court found:

The poem’s purpose of denigrating the elected councillor’s level of job commitment or competence provides important context for a consideration of whether the impugned stanzas of the poem constitute a threat. All citizens are entitled to freedom of expression in the political forum, including those whose language skills are limited. While it was unnecessary for the trial judge to engage in the in-depth s. 2(b) analysis urged upon him by trial counsel, it was necessary to consider the poem as political commentary before determining whether it constituted a threat at law.

Of course, freedom of expression is no stranger to signage as a form of complaint and grievance. In the 2002 Supreme Court of Canada Guignard case, a billboard erected on Guignard's building showing dissatisfaction with an insurance company, was protected expression under the Charter and the municipal by-law restricting that right was found to be unconstitutional.

The sign, as a form of commercial expression, was also a form of "counter-advertising" wherein a consumer exercised his or her right to show dissatisfaction with a product with the additional benefit of forewarning other consumers. This expression of complaint or dissatisfaction, not unlike the complaints found in Jeffers and Batista, "is a form of expression of opinion that has an important effect on the social and economic life of a society."

The Jeffers and Batista cases are yet another example of the Courts using Charter values to interpret their findings. Thus, the Charter colours decisions with broad strokes without the rigidity of a direct Charter analysis. This subtle use of the Charter is the future of constitutional law as Charter values incrementally change our laws to make them more robust and relevant to society.

The Sixty Day Review: Occupy Canada and Impaired Driving Alberta

Slightly more than sixty blog days have passed and it is time to review. I have chosen two of my most popular posting areas to review: the Occupy movement and the new Alberta impaired driving laws. 

As discussed previously, although the courts have recognized violations of freedom of expression resulting from the City's bylaws prohibiting the erecting of shelters in public spaces, these laws have been saved under s.1 of the Charter. This means the legislated restrictions on freedom of expression is justifiable in a free and democratic society. These decisions from across Canada have resulted in the removal of the various "Tent Cities," which were the outward manifestation of the movement's "occupy" philosophy. 

The media coverage of the court cases to remove the protesters seemed to overshadow the true nature and meaning of the protest. I recently read an excellent blog posting by the Dean of Osgoode Hall Law School, Lorne Sussin, who reminds us of the important "teachable moments" presented by the protest. In particular, Dean Sussin speaks of poverty and the inequalities arising from it, as the true issue to be resolved. 

This reminder lead me back to the letters written by the CCLA (Canadian Civil Liberties Association) to the various Canadian Mayors to remind the municipalities of their obligation to respect the protestors' human rights through "constitutionally-required tolerance towards peaceful, democratic activities."

As discussed in my previous posting, these reminders from the Dean and the CCLA provides the lessons we can learn from Charter values.

The second area of review is the contentious amendments to the Alberta Traffic Safety Act, which was passed late Tuesday, December 6 by the Tory dominated Alberta Legislature. After the Bill was passed, Premier Redford "softened the blow" by announcing the incremental implementation of the law.

The first phase, to begin in January 2012, will see the extraordinary penalties assessed against those whose BAC is over 80 and face criminal code charges as well. The second phase, involving increased penalties for those driving with BAC between 50 and 80, has no implementation date stamp as yet. According to Premier Redford, this second phase will be "accompanied by lengthy public education."

Already, there has been charts, graphs, and other such various multimedia presentations on what the new legislation "means." The difficulty is that these explanations are merely a general guideline and should not be used as a definitive guide to drinking and driving in Alberta. The calculations are estimates at best which rely on certain assumptions, which may or may not be the same for every person. As a result, the education may lead to more confusion.

In British Columbia, the harsh impaired driving laws, on which Alberta fashioned their new law, received a legal set back as discussed in my previous blog here. The BC government has still not announced their response, other than to recognize the need to change their legislation in order to make it constitutionally worthy. The growing issue is the response to all of the affected drivers, who were penalized under the old regime, and whether they will receive some recourse from the government.

The Alberta saw a real time example of impaired driving when Conservative MP Peter Goldring was stopped, after his constituency Christmas party, for drinking and driving. Goldring is now sitting outside of his caucus as a result of the charges: refuse to provide a breath sample contrary to the Criminal Code.

The only truly accurate educative message is: do not drink alcohol and drive. To that end, December, according to the Alberta Traffic Safety Plan Calendar, is Impaired Driving Awareness Month. As said in previous blogs, awareness education may be the best message to stop the dire consequences of drinking and driving. 

In the past sixty days we have discussed many interesting and important connections between ideas and the law. I invite you to read or even re-read these blogs, by visiting the "home" page, to make your own connections.

The Occupy Movement & The Charter of Rights And Freedoms

Read all the postings on the  Occupy Movement and the Charter:  Freedom of Expression and Occupying Public Space Part One  & Part Two: Occupying Public Space & Creating A Positive Out of A Negative & The Occupy Movement and The Government's Right to Allocate Public Space