Ideablawg’s Weekly Connections: International Women’s Day and Legal Inspiration From Abella, Arbour and Smith

Today is International Women’s Day, a day to celebrate how far women we have come in terms of gender equality but also a day of hope as we reflect on what still needs to be done. We are not quite there yet and certainly in many countries across the globe not there at all. There are so many inspiring women of all ages but I devote this week’s connections to three jurists women who give me legal inspiration.

1. There are of course numerous Canadian women in the law profession who provide inspiration to us all. Check out the page at U of T Law School dedicated to some of these legally minded trailblazers. Out of the list, I find inspiration from Madame Justice Rosalie Abella, now sitting on the Supreme Court of Canada. Not only she is an exceptional jurist and dedicated human rights advocate (see the blog I wrote on her dissent in the Court of Appeal on Crown misconduct) but her life story is also an inspiration. A child of the Holocaust, she was born in a Displaced Persons’ Camp in Stuttgart, Germany where her father, a lawyer, helped advocate for the other displaced persons’ in the camp. I have had the opportunity to appear in front of Justice Abella when she was first appointed to the Ontario Court of Appeal and argued a sentence appeal before her in the first week she was sitting on an Appeal panel. Although it was a straightforward appeal, Justice Abella showed her mettle and her mind by dissenting in the case. This was not a controversial case at all and indeed the dissent, legally, did not matter but what did matter was the humanity and compassion she showed by doing it.
2. Another Justice of the Supreme Court of Canada, albeit a former Justice, is Louise Arbour. Most people recognize her as the Justice who stepped down from the SCC to become the Chief Prosecutor for the International Criminal Tribunals investigating the war crimes of the former Yugoslavia and Rwanda. She then became High Commissioner for Human Rights in 2004 and retired from that position in 2008. Although her tenure in the international scene was not without controversy, she is an inspiration for her tenacity and her deeply held beliefs in international human rights. She now heads the International Crisis Group where she speaks out against any oppressive regime and even western powers like Canada, who, in her view, are not doing enough to advance human rights internationally. Again, I had the pleasure of appearing before Justice Arbour many times when she sat in the Ontario Court of Appeal. Her expansive knowledge of criminal law made it a pleasure to argue a criminal appeal before her. However, I believe it was when she took on the unenviable task of inquiring into the Prison for Women at the Kingston Penitentiary in 1995 that I truly found her most inspiring. Her report is a shocking read but an important one for prisoner rights and women rights. She truly made a difference. After her report, P for W was disbanded.
3. For more inspiration, I look no further than the trial court. Day in and day out trial judges sift through the nuts and bolts of legalese and listen to the narratives placed before them. Sure they determine cases by applying legal principles but the very best trial judges do so by hearing the stories of the people affected. This is an important part of access to justice – to listen and to give those before them a fair and just hearing.  When I was a law student at Osgoode Hall Law School, I was lucky enough to win the lottery for the incomparable Criminal Law Intensive Program run by the then criminal law professor Alan Grant. It was an amazing program where we students were seconded with lawyers and judges to shadow their daily work lives and to take in their unique perspective on the criminal justice system. I was seconded with the then District Court Judges and among the group I had the honour to work with was the then the Honourable Judge Heather Smith. Of course now she is Chief Justice of the Ontario Superior Court of Justice and the first woman to hold that position. There are no words to express how impressed I was with her abilities and her commitment to the criminal justice system.  As a woman and as a soon to be articling student, she inspired me to treat the law and those individuals in the law, be it lawyers or clients, with respect. In my mind she was the epitome of a trial judge – competent, thoughtful, compassionate and learned in the law - and an inspiration for a young female barrister ready to take on the world.

The “Passive- Aggressive” Nature Of Sections 6(2) and 7 – Committing Crimes Outside of Canada: Episode Ten of the Ideablawg Podcast on the Criminal Code of Canada – Text Version

Up to now, the sections in the Criminal Code have been fairly benign – either informational, as in the section 2 definitions, or procedural like the section 5 exemption for the Canadian Forces. Although sections 6(2) and 7 are also procedural in aspect, they are, what I would call, “passive-aggressive” sections.

What do I mean by “passive-aggressive?” These sections, instead of providing information to help us apply the Code, are in some sense giving us a “mini-Code” regarding offences committed outside of Canada. In one breath these sections take away a category of offences and in another they seem to create them.

Let’s look at the passive side of this equation or the section, which takes away offences – section 6(2). I will remind you, and invite you to read or listen to my previous podcast on section 6(1), which discusses why the heading for section 6 is Presumption Of Innocence. I argued, in my section 6(1) podcast, that the section does not actually focus on innocence but on punishment. I will now further suggest that this argument is supported by section 6(2), which does not read as a presumption of innocence section but as a prohibition. Section 6(2) reads as follows:

Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside of Canada.

So this section is prohibiting, in quite a terse manner, our criminal justice system from trying a person for an offence committed in another country. But it is not an absolute prohibition as it has those limiting words “subject to this Act or any other Act of Parliament,” meaning that other sections in the Code can supersede this prohibition as well as other sections in other federal Acts. Indeed, the first exception that comes to mind is the Crimes Against Humanity and War Crimes Act, which is a federal piece of legislation that takes jurisdiction of any person who “commits outside of Canada genocide, a crime against humanity, or a war crime.” The second exception, which comes to mind, is found within the Code itself and is section 7.

Now, let’s look at this “aggressive” section 7, which seems to create offences. It is a lengthy section and although it is entitled Offences Committed On Aircraft, I would suggest it is a section covering much more than simple airspace and does make certain illegal activities committed outside of Canada an offence inside Canada. For the sake of brevity I will not be quoting this whole section. It covers eight and a half pages in my Martin’s Criminal Code, not including the newest amendment of the section on nuclear terrorism. Instead, I will make general comments on the section to give you a sense of its breadth, its weight, and just how broad an exception this section is to section 6(2).

Where section 6(2) is passive, section 7 is on the move, and where it is going is anywhere outside of Canada where an aircraft flies, where navigation is concerned, where ships go, where an oil platform may be drilling, where a space craft may blast off to, where a Canadian astronaut may be sleeping while in space, where nuclear material may be found, where cultural property may be transported, anywhere a public service employee may be committing offences, and where any Canadian commits a crime in accordance with various sections under the Code. The Criminal Code truly has global reach despite its seemingly passive section 6(2).

Of course, section 7 has been amended many times over the years to include all these various scenarios and is therefore a much newer section than section 6(2). Our world has become smaller through ease of travel and this section reflects that reality. But it also reflects a real desire of the federal government to keep jurisdiction over Canadian citizens and the illegal acts they may commit and the further desire of the government to keep tabs on individuals who may be plotting against Canada while outside of Canada. So why the misleading title for the section – Offences Committed On Aircraft? Well, there are many references in this section to aircraft, particularly relating to acts of sabotage or hijacking of a Canadian aircraft outside of Canada. Originally, before the “war on terror,” the section was mostly about aircraft, in response to the high profile hijacking cases of the late 1960s to early 1970s. Then, as the ways and means of committing offences outside of Canada became more varied and as our international obligations to combat these crimes became more pressing, the section was re-shaped and amended as it appears now.

The concept of Canada’s international obligations driving change to the section is seen in the references to these obligations within section 7, such as the Convention for the Protection of Cultural Property in the Event of Armed Conflict. Thus, this section is not just about domestic Canadian criminal law but also about international criminal law. The interplay between Canadian criminal law and international criminal law is complicated. It raises issues of jurisdiction over the offence and over the person, which is what section 7 is all about – ensuring that Canada has the jurisdiction or authority to prosecute certain crimes found in the Criminal Code, which may relate to other federal acts, which have an international aspect to them, such as the Aeronautics Act or, as previously mentioned, the Crimes Against Humanity and War Crimes Act.

Although the section may give Canada the authority to prosecute certain crimes committed outside of Canada, in some cases there may a dual authority, where there are crimes against humanity, to try the case at the International Criminal Court or ICC at The Hague. The International Criminal Court was established pursuant to the Rome Statute, which was adopted by 120 countries in 1998, in response to the seemingly endless international atrocities, which sadly did not stop at the International Military Tribunal at Nuremberg but continued into Rwanda and the former Yugoslavia. Before 1998, these crimes against humanity were prosecuted internationally by an ad hoc court such as the International Criminal Tribunal for Rwanda. As an aside, I had the honour of hearing Senator Romeo Dallaire speak of his role and Canada’s role in the Rwanda disaster. His speech was truly inspirational and a reminder that we do have true “Canadian Heroes.” As another aside, we should be equally proud of Canada’s role in the prosecution of those individuals responsible for the genocide as former Supreme Court of Canada Justice, Louise Arbour, was the Chief Prosecutor in the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

However, these specially constituted tribunals were not seen as enough of a response and hence the Rome Statute and the establishment of the ICC. The ICC has not been without controversy. The international community is not a homogeneous one and the perspectives run wide and deep. For instance, the recent prosecution of the President of Kenya, Uhuru Muigai Kenyatta, has been ongoing since 2010 and has still not advanced to the point of trial, partly due to the devastating terrorist mall attack in Kenya and partly through the efforts of Kenyatta himself. The trial is scheduled to commence February 5, 2014 but his prosecution has brought calls of bias against the ICC. A quick review of the active cases at the ICC reveals why: all 8 situations involve African countries. Thus the critics suggest there is an obvious country bias. The ICC has taken this suggestion so seriously that the court even has an online ICC Forum debating the issue.

Canada, according to a federal government website, contributed to the development of the ICC and is a signatory of the Rome Statute. Canada was the 18^th country to sign the treaty and soon thereafter, in accordance with their obligations under the statute, Canada enacted in 2000 the Crimes Against Humanity and War Crimes Act. On behalf of the WEOG or the Western European and others Group of States, Canadian Judge Philippe Kirsch, who was heavily involved in the creation and implementation of the court, sat on the ICC from 2003 to 2009. There is presently no Judge from Canada on the Court. There is however a Canadian presence on the prosecutorial team with James Stewart as the Deputy Prosecutor. I have been on the opposing side to James Stewart when he was an appellate Crown in the Ontario Crown Law office and found him to be a formidable yet honourable adversary.

There is of course more to section 7 than I have time to discuss in a podcast/blog but I hope I left you curious enough to explore some of these issues. The bottom-line is that far from the isolationist bent of section 6, the Criminal Code is truly reflective of Canada’s international interests and obligations. In this way, therefore, the Criminal Code truly becomes a mirror of our “plugged-in” society as the global perspective becomes more and more important to all of us. 

War Crimes: Canadian and International Milestones

With the announcement on March 14, 2012 of the first verdict by the UN sponsored International Criminal Court (ICC), it seems fitting to look back at the first prosecution in 1989, R.v. Imre Finta, in Canada under the then new federal Crimes Against Humanity and War Crimes Act. Imre Finta, originally from Hungary and, as a Hungarian police captain, deported thousands of Jews to the death camp Auschwitz in World War II, was the first individual charged under the Act in 1988. Finta, at the time of his arrest, was a retired restaurant owner living in Toronto. 

The Act was conceived as a result of the Deschenes Commission, which was struck in 1985 to inquire into the presence of war criminals in Canada and to provide recommendations on how Canadian laws should respond. At the time of the Commission, Canada’s immigration laws and policies were not stringent enough to keep war criminals from immigrating to Canada. Indeed in 1962, Josef Mengele, or as infamously known as the “Angel of Death,” had applied to immigrate to Canada even though his identity was well known to government officials. Although, Mengele did not in fact enter Canada, it was clear such entrance would have been possible considering the laxity of Canadian laws. It was equally clear at the time of the Commission, there were in Canada at the time of the Commission alleged war criminals from the World War II era.

The final Commission report was tabled before parliament by then Justice Minister, Ray Hnatyshyn, after examining over 800 cases of alleged war criminals in Canada. Although the Commissioner, Justice Jules Deschenes of the Quebec Court of Appeal and formally the Chief Justice of the Quebec Superior Court, recommended some individuals be deported from Canada, he also recommended ways in which the alleged war criminals could be prosecuted in Canada for their crimes. His proposed recommendations, including changes to the Criminal Code to permit such prosecution, culminated in the Crimes Against Humanity and War Crimes Act in 1987.

Interestingly, Justice Deschenes was appointed in 1993 as one of the first Judges elected by the United Nations General Assembly to serve at the United Nations International Criminal Tribunal for the former Yugoslavia, the precursor to the present day International Criminal Court, mentioned at the beginning of this posting.

With the arrest of Imre Finta on various Criminal Code charges such as robbery, manslaughter, and kidnapping the Commission’s recommendations appeared to be finally showing results. The trial commenced before Mr. Justice Campbell and a jury with evidence of Holocaust victims from all over the world. Ultimately, Finta was acquitted after six months of trial. The Crown appealed to the Court of Appeal for Ontario, with five Justices hearing the case, including Chief Justice Charles Dubin.

Typically only three Justices sit on an appeal case but five justices are assigned when it is a matter of great national importance such as when the constitutionality of a piece of federal legislation is at issue. For example, five Justices of the Court of Appeal for Ontario heard the Bedford appeal on the constitutionality of some of Canada’s prostitution laws. The judgment is to be released on March 26, 2012. A five member panel may also be required when new legislation needs judicial interpretation or in the case of a legislative reference (see my prior posting on References) or when the appeal involves issues decided by a previous Court with a request to review that prior decision. An example from outside of the criminal law is the recent five panel Ontario appeal decision on summary judgment motions.

In the case of Finta, the Court struggled with two issues of national importance involving both Charter rights and substantive issues. The Charter arguments were dismissed. In terms of substantive issues, the Court needed to determine the appropriate implementation and use of the new war crime legislation, particularly how a trial judge must instruct himself or a jury on the correct legal requirements of such a charge in the context of criminal law principles. Finta was charged with easily identifiable Criminal Code charges, but was so charged in the context of war crimes committed years earlier in another country. It was this further layer of complexity, which required a panel of five Justices to consider the issues involved.

The Court of Appeal for Ontario came to a split decision on the application of the Act. The majority decision written by Justices Doherty, Osborne, and Arbour dismissed the Crown appeal against acquittal, finding no substantial wrong or miscarriage of justice at trial. The dissent, written by Chief Justice Dubin and concurred in by Justice Tarnopolsky. The dissent was chiefly concerned with the requisite elements of war crimes and their opinion that the trial judge erred in instructing the jury on the legal aspects of those essentials. Thus, the acquittal was upheld, as there was no palpable error of law and without resort to the constitutionality of the legislation.

As an aside, here too we have some interesting connections to international criminal law and human rights. Justice Walter Tarnopolsky had a strong background in human rights and civil liberties as an academic and law professor. Just prior to his appointment to the Court of Appeal, he was a member of the United Nations Human Rights committee. Justice Doherty as a previous Crown Attorney in the appeals division was very well versed in criminal prosecutions. I have spoken of Justice Doherty in a previous posting. Of course, Madame Justice Arbour went on to become Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia, the very same organization to which Justice Deschenes was connected. She sat on the Supreme Court of Canada as well but after the SCC Finta decision. Most notably, she later served as the United Nations High Commissioner for Human Rights. I have written about Justice Arbour in a previous posting.

The case was further appealed to the Supreme Court of Canada, with similar results. Only seven justices heard the matter, rather than the full quorum of nine. The majority decision written by Justice Cory, upheld the acquittals and dismissed the appeal and the constitutional questions. The majority (a slim majority as 4 justices dismissed the appeal, while three justices would have allowed it) confirmed the substantive charges under the Criminal Code must be proven in conjunction with the additional proof of the essential elements of a crime against humanity as defined by the Act. Thus, as both the substantive offence and the war crime must be proven beyond a reasonable doubt, Finta was properly acquitted as the Crown failed to prove the requisite elements of both offences.

This decision raised the bar in terms of the ability to prove such offences, making such prosecutions extremely difficult for the Crown. The result was fewer prosecutions (many of which were unsuccessful), more extraditions, and even more deportations under the much easier to use immigration legislation. Therefore, the first verdict under the auspices of the ICC is a welcome and much needed addition to the global fight against international crimes. It is hoped Canada will support the efforts of the ICC, while still remaining vigilant in its own efforts to prosecute war criminals.

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.