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.

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.

Julian Barnes, Sherlock Holmes, and A Miscarriage of Justice

Yesterday, the British writer, Julian Barnes, won the 2011 prestigious Man Booker Prize. I have read many of his books, some of which are particularly clever, such as The History of the World in 10 and A Half Chapters, with one chapter dedicated to a discussion of Theodore Gericault's 1819 painting of the aftermath of a shipwreck in The Raft of the Medusa.

Barnes also recently wrote a book simply entitled Arthur & George. This book fictionalizes the real-life relationship between Sir Arthur Conan Doyle, the creator of Sherlock Holmes, and a unassuming solicitor named George Edalji. This semi-fictional account juxtaposes the lives of these two men in the backdrop of one of England's infamous cases of injustice. Edalji, of Indian ethnicity, was wrongly accused and convicted of mutilating cattle and sending poisonous letters in support of the crime. He was sentenced to seven years of hard labour and disbarred until Conan Doyle "took up his case" in a purely Holmesian manner, and managed to clear Edalji's name and restore his law society membership.

This case reminds us that one miscarriage of justice is one too many. In Canada, where such miscarriages have been revealed, not by celebrity writers, but by hard-working individuals, committed lawyers, and dedicated associations, we must be watchful and protective of justice and the repercussions of injustice. 

On September 15, 2011, the Canadian Federal/Provincial/Territorial (FPT) Heads of Prosecutions Committee on the Prevention of Miscarriages of Justice released an update to their 2005 Report. The original Report is large in scope and contains many recommendations. It tackles a broad range of issues, including systemic injustices caused by Crown/Police tunnel vision. This update, entitled The Path to Justice: Preventing Wrongful Convictions, reviews prosecutorial practices and makes further recommendations. Interestingly, the update starts with a quote from another British writer of justice, Charles Dickens, in his book The Mystery of Edwin Drood:

Circumstances may accumulate so strongly even against an innocent man, that directed, sharpened, and pointed, they may slay him.

Barnes, Conan Doyle, and Dickens reminds us, in a literary and engaging way, of the importance of justice in our legal system. It is up to us, however, to translate these works into reality.This requires, as stated in the FPT Update, "continued vigilance."

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?