FYI: Three Updates For A Sunday

Below are three updates of issues discussed over the past thirty days:

1. October 11: Is "Innocent Nudity" Expression? My follow-up blog referred to the case of Gwen Jacobs, who was charged with an indecent act under s.173 of the Criminal Code for appearing topless in downtown Guelph on a hot summer day. She was later acquitted by the Ontario Court of Appeal on the basis that her act was not committed in a sexual context, which was a required element of the offence. At the time, she was hailed as a fearless advocate for the rights movement. Today Gwen is still an activist and on Friday she appeared with her daughter at Occupy Toronto to lend her support. For those wondering, yes, she did have her shirt on - it was cold out! However, thanks to Gwen, breastfeeding at that public event or really anywhere now is acceptable.

2. October 18: Wristbands Are In Effect: The "Keep A Breast" Campaign. Doing a quick Google search reveals this story has received a lot of attention. Commentators on websites, journalists, and bloggers alike all seem to be against the ban. Some comments even set the campaign side by side with Movember, the prostate cancer "grow a moustache" fundraiser. One online article is particularly moving as it reveals some girls wear the wristbands in honour of a loved one who had breast cancer. This becomes particularly meaningful considering, on average, 64 Canadian women a day are diagnosed with breast cancer and 14 women are dying daily of the disease. If you are unable to find the wristbands for purchase, you can go here to post a virtual wristband on your Facebook page or Twitter account.

3. October 21: Where The Wild Things Are. In this post on animal rights issues, I mention Lucy the Elephant in the Edmonton Zoo and the fight for her release. The matter is currently before the Supreme Court of Canada. But what of Lucy and her plight? Recently, the City of Edmonton has decided to take steps to winterize Lucy's enclosure at the zoo. Why now after Lucy has already spent umpteen winters in the Northern Alberta City? The move is after recommendations from a "third party specialist" who examined her. Although the renovation is welcomed by animal rights groups such as PETA, who are involved in advocating for Lucy's release, the gesture does not go far enough over fears she will not survive the harsh winter. As of November 7, both parties to the SCC action have filed their arguments at the Court. It is now a race against time but there is surprising evidence that Elephants can, in fact, run. Go Lucy go!

The Art and Science of Connections

While reviewing my posts, I began thinking of connections and how seemingly unconnected events can provide meaningful and sometimes surprising connections, which can then further enhance our understanding of the subject. Every Friday, I read Simon Fodden's Friday Fillip blog and yesterday he too was discussing connections in his Degrees Of Connections posting. As opposed to Steven Johnson's concept of mentally connecting ideas for innovation, Fodden offered a mechanical option through Wikipedia's Xefer site. This search engine, using Wikipedia articles, can connect any three words to come up with a search list of articles connecting those concepts through a visual "tree of knowledge."

I plugged in three concepts from my previous blogs, not obviously connected: inherit the wind, redemption, discrimination. The results are fascinating as Art and Science truly come together. 

Of course, this mechanical connecting encouraged a mental one and I started making connections between my blogs. Here is my first "six degrees of connections": October 12 Law, Literature, And Inherit The Wind to November 9 Freedom Of Expression In The Classroom to November 8 The Pridgen Case and Freedom Of Expression On Campus to October 18 Wristbands Are In Effect: The Keep A Breast Campaign to October 25 On The Road To The Supreme Court Of Canada to October 22 The Road Taken By The Supreme Court Of Canada which leads back to the October 12 blog. Whew.

How did they connect? I went from Inherit The Wind, the play involving the prosecution of Mr. Scopes, a teacher who taught evolution in the classroom which connects to freedom of speech in the classroom and the PEI case of Mr. Morin showing a controversial documentary in his grade 9 class which connects to freedom of expression by students on campus involving the Prigden case just heard before the Alberta Court of Appeal which connects to freedom of expression of students wearing breast cancer wristbands which connects to what cases have been heard before the Supreme Court of Canada and the Whatcott case involving freedom of expression issues intersecting with freedom of religion issues which connects to the case the SCC should hear on freedom to be free of religion in the classrooms as a result of Morinville, Alberta school and the Lord's Prayer which connects back to Inherit The Wind and the freedom to be free of religion.

How was that for a weekend brain twister? Try it and make either mechanical or mental connections. Who know where they might lead? 

Another Blog Interruption: It's Halloween, Are You Scared?

It is Halloween. The street is dark but the activity level is immense. Clutches of kids in costumes of all sorts are walking through the neighbourhood in search of sweet treats, scary houses, and fun.

But in some communities there is no fun. Two schools in Calgary, tweaked Halloween from a scary adventure to a caring one: children were not permitted to wear scary costumes (zombies immediately come to mind) but were only allowed to wear "caring" costumes involving fuzzy animals, fairies, police man and the like. It was caring with a capital "C," as the children attended caring assemblies and even built healthy food models to promote a healthy caring lifestyle. No sticky sugar-coated eyeballs here please! 

In other communities, instead of Halloween being transformed into the "care bears gone wild," Halloween is stripped down to its bare bones (excuse the pun). In the Town of Bonneyville, Alberta for instance, a Halloween curfew is in place: trick or treating can only take place between 4:00 pm and 7:00 pm and only by those under 15 years of age. 

In Charlottetown, PEI, the Nuisance Bylaw penalizes those teenagers who are out Halloween eve, after 8:00 pm, without an adult in contravention of the "Halloween Curfew."

In still other communities, an age restriction limits the fun. Teenagers are are expressly prohibited from taking part and if they do decide to take the trick instead of the treat, they are subject to fine. 

Setting aside what these restrictions, changes, and penalties say about our society, there may be some Charter rights at risk here. I can think of a few, can you?

Today, I was reading the 2004 Supreme Court of Canada Mann case in anticipation of my lecture on Legal Rights in the Charter. Although the issue in that case was the ambit of a protective search, which resulted in a police officer finding marijuana in Mann's pocket, the Court made some profound comments on the difficulties of balancing individual rights with societal interests. As Justice Iacobucci stated:

The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.

 This comment can apply equally here: how wisely are we navigating through the seemingly endless restrictions on individual liberty and are we losing some of our democratic "vibrancy" as a result. Now that's a scary thought.

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. 

Where the Wild Things Are

The escape of wild animals in Ohio is a story which has caught my attention. It is a sad story. The suicidal exotic zoo owner released some 50 wild animals, including tigers and lions, before shooting himself in the head. Tragically, the animals were shot and killed by authorities in an effort to protect the public. In the aftermath, animal rights activists push for legislative reform in a State, which, shockingly, has no regulation for the keeping of exotic animals. 

Here, in Alberta, we do have provincial legislation to regulate and protect wildlife, exotic animals, and domesticated animals as found in the Wildlife Act and the Animal Protection Act. We also have cruelty to animal sections in the Criminal Code, found in sections 444 to 445 and 446 to 447.  

Oddly enough all of these Criminal Code sections are found under Part XI of the Code entitled "Wilful and Forbidden Acts in respect of Certain Property." True, animals are owned but to conceive animals as property conveys the wrong message. The focus is off. Instead of protecting animals because they are living things, our society protects animals because, like a book, they are owned. It is, therefore, this ownership quality of an animal, the concept of damaged goods, which we have decided to protect through our criminal law. 

But the world is changing and our raison d'etre for protection of animals must change too. Peter Singer, a Professor of Bio-Ethics at Princeton, has been a long-time proponent of animal rights after the publication of his book Animal Liberation in the mid '80s.  Since then, animal rights has become a movement with increasing number of supporters. A recent Slaw blog on "Animal Law and Animal Welfare Groups" caught my eye. Additionally, the Supreme Court of Canada will be deciding on a leave application filed by Zoocheck Canada and others on the release of Lucy the Elephant from the Edmonton Zoo.

It is clear animal rights as an emerging issue will require a more thoughtful approach to the protection of animals and, perhaps, a much needed review of Criminal Code sections.