Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case

Presently, there are essentially two different kinds or categories of criminal intent: subjective and objective. Intent or mens rea is the fault requirement of a crime. Without intent or the intention to do the prohibited act, there is no crime and the accused should be acquitted. Traditionally, the criminal law recognized only one category of intent: subjective mens rea as the basis for a criminal offence. Subjective intent requires the prosecutor to prove beyond a reasonable doubt that this accused intended his actions. This requires the trier of fact to contemplate on the thought processes of the accused as presented through the evidence. Subjective intent differs greatly from objective intent, which sets up as a model of behaviour the standard of the “reasonable man.” Thus, the trier of fact when considering an objective mens rea offence must consider what a reasonable man would have done in the circumstances. If the accused fails to act in accordance with this standard or model of behaviour, the accused is deemed guilty of the offence, even if the accused did not intend the consequences of his actions.

Objective intent can be a harsh standard as it can be argued that those individuals who are not “average” or have some deficiencies of character cannot possibly reach the standard of a reasonable man. On the other hand, the criminal law’s main thrust is to protect the public. In harsh terms then, the criminal law punishes those who are unsafe to protect the majority of people who are fully aware of what is a reasonable course of action in the circumstances.

I stop to reflect on the term “reasonable man.” This traditionally was the term and equally traditionally this was the standard: a reasonable and sober man. Not a woman, but a man. Obviously when society accepted the equality of the sexes, this phrase was changes to “reasonable person.” Of course there is no description of a “reasonable person.” One cannot simply look up the phrase in a dictionary and find a full description or even a picture of such a venerated individual. No, triers of fact are left to their own devices in conjuring up such an individual, presumably because the trier of fact is assumed to be a reasonable person. In almost a tautological argument, the presumed reasonable person assumes a reasonable person for the purposes of determining the guilt or innocence of an accused person.

As a result, the objective standard of intent is not favoured by the defence and yet, unsurprisingly is favoured by the prosecutor. It is much easier to rely on a concept of reasonableness, than it is to determine a particular person’s intention. As the bar is lowered, convictions occur more readily in an objective mens rea crime. Typically, however such crimes were reserved to unsafe licensed behaviour such as careless use of a firearm or dangerous driving. A licensed activity requires a certain licensing standard and thus if you fall below that standard while involved in a dangerous activity, then objective mens rea should apply: common sense dictates it must. And that is where we come to the new Supreme Court of Canada case of R. v. Walle, 2012 SCC 41.

Adrian Walle was charged and convicted of second-degree murder, when he shot at point blank range with a sawed-off .22 calibre rifle, Jeffery Shuckburgh, a Calgary bar owner who at the time was escorting Walle off the premises. Walle’s trial counsel argued that the rifle went off due to an unintentional movement made by the accused. In other words, Walle’s actions were not voluntary as he acted without awareness of his actions, in other words the shooting was purely accidental. A prohibited act or the actus reus of a crime must be a voluntary act. Without a voluntary prohibited act, there is no crime. This argument had little basis in the evidence and the trial judge, sitting without a jury as occurs when a case is complicated or based on legal argument, made the following finding in convicting the accused:

I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.

The trial judge also relied upon the “common sense inference,” which contemplates the reasonable person or that a “sane and sober person” intends the reasonable and probable consequences of his acts. On appeal, counsel for the defence argued that the trial judge was wrong to rely upon this “common sense inference” without recognizing that Adrian Walle was not only under the influence of alcohol at the time, but was also suffering from various psychiatric disorders including “Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder.”

The Supreme Court of Canada unanimously disposed of this appeal. In a judgment written by new appointment Mr. Justice Moldaver, who I have written on in previous posting, the court easily rejected this argument on the dual basis that this argument was not raised at the time of trial and that a trier of fact need not refer in the reasons to every piece of evidence proffered. As long as the decision appears to be based upon the relevant evidence, which it was in this case, the reasons are sound. The fact the issue was not raised at trial merely goes to trial tactics. Trial counsel views a case in a certain way and crafts a trial position as a result. Often, counsel will at trial pursue this theory solely and thus not raise very possible argument on the case as it would detract from the chosen position.

The secondary argument on appeal, raised by the intervenor’s in the case, the Criminal Lawyers’ Association of Ontario, cause the court more concern. The crux of that argument involved the propriety of using the “common sense inference” in circumstances where the accused is clearly not an individual who practices common sense due to his psychiatric issues. Such an inference essentially imports an objective mens rea standard into a crime which is considered one requiring subjective intent. To convict of murder, the prosecutor was obliged to prove beyond a reasonable doubt that Walle intended to kill or that he was reckless as to whether death would be a consequence of his actions. Murder is not based on what a reasonable person should have done at the time. However, manslaughter is an objective mens rea crime, which requires an accused to have an objective awareness that his actions will cause bodily harm. In murder, the accused must be subjectively aware that his actions will cause death.

Of course, in Walle’s case, the argument is a strong one. Certainly, Mr. Walle would definitely not be the poster-boy for a reasonable person nor would he be described as “sane and sober.” Despite this, Justice Moldaver rejected this argument but with a caveat. In his view, the “common sense inference” “provides a jury with a marker against which to measure the rather amorphous concept of intent.” The instruction also cautions the jury that such an inference may be made but is not required to be made in their deliberations on intent.

Leaving aside that the Walle case did not employ a jury, Justice Moldaver’s comments highlight the difficulty with the concept. To view the inference as “a marker against which to measure” in my mind clearly suggests the objective standard of mens rea is at work. Indeed, it is difficult not to view this inference as anything but applying an objective standard based upon the trier of facts conception of what a reasonable person would have done in the circumstances. Thus, the objective standard is not only alive and well in Canadian criminal law, it has crept into the very heart of criminal law precepts, which require those core crimes such as murder and theft, require subjective intention. This inevitably should leave us wondering if the categorizing of the intention required for a particular crime is history, in favour of what the Supreme Court of Canada likes to call the “principled approach” to legal decision-making.

In closing, I refer back to the finding of the trial judge mentioned earlier that “when the accused Walle deliberately pulled the trigger … he knew that the reasonable and probable consequence...” By the trial judge using that phrase “reasonable and probable,” he has blurred the lines between objective and subjective intention, ensuring that the concept of “reasonable person,” whoever that may be, is an integral part of the crime of murder.

The Supreme Court of Canada in a much earlier 1990 Charter case said, in the majority judgment written by Chief Justice Lamer, this about the importance of subjective mens rea in R. v. Martineau:

In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.

In the end, it is clear that there was ample evidence to uphold Walle’s conviction, but as they say, bad facts lead to bad laws. The question is whether this approach is a foreshadowing of what is to come in terms of the Court’s position on intention or whether it is merely a specific response to a particularly heinous crime.

The Canadian Spy, Bail Reviews, and Preliminary Inquiries

Jeffrey Delisle, the naval intelligence officer charges both under the Security of Information Act and the Criminal Code, will have a preliminary hearing on those charges starting on October 10, 2012. For a full review of his charges, a discussion of other infamous Canadian spies, as well as a primer on the Official Secrets Act and the legislation now enacted to replace that Act, the Security of Information Act, read my previous posting on the issue Spy vs. Spy. For a discussion of Mr. Delisle’s bail hearing see my posting Blog Update: The Spy and the Pamphleteer.

This date seems rather late considering Delisle was denied bail and has been in custody since his arrest in mid-January, 2012. By the time Delisle has his preliminary hearing, he would have been in pre-trial custody, which is much harder time than serving a sentence, for nine months. Considering this, it would not be surprising if Mr. Delisle’s counsel will launch a bail review under s. 520 of the Criminal Code.

Such a review is heard by a Superior Court Judge. In this instance as the matter is in Nova Scotia, a bail review would be before a Nova Scotia Supreme Court Justice. In such a bail review, the Judge considers any relevant evidence, both written and oral, the transcript of the previous bail hearing, any exhibits filled at the previous bail hearing, and such additional evidence as either the Crown or the defence may offer.

On a bail review, counsel may argue that the previous order denying bail was based on a legal/factual error. Such argument would be based on transcript evidence and legal argument. Or the defence might argue a material change in circumstance has occurred since the previous hearing. This argument would include affidavit evidence or even vive voce evidence, which would involve calling witnesses at the review hearings. When this occurs, the bail review becomes essentially a new bail hearing. The onus of proof on a bail review is on the party who brings the application; in this case it would be the defence. It is therefore the defence who must satisfy the reviewing Judge that judicial interim release is appropriate.

There is also a provision in the Criminal Code, under s.525 for an automatic bail review if an accused has been in custody, in Delisle’s case, for more than ninety days. Considering the length of time he has already been in custody, six months, one can assume such automatic reviews have occurred. Although, these reviews are automatic, in order to ensure an accused does not languish in jail unnecessarily and in order to preserve the presumption of innocence, defence counsel can waive or pass on the right to an automatic review. This would be done if the prospect of bail seems slim. However, in such an automatic review, the reviewing judge does consider the delay in the matter coming to trial and the reasons for the delay. The longer the accused sits in pre-trial custody, the more likely the accused will eventually be released. However, in those complicated cases, which require much effort to get ready for trial, the courts will tolerate longer delays.

In Delisle’s case, because of the severity of the allegations, a trial date was not set but a preliminary hearing date. Additionally, Delisle elected to be tried by judge and jury once the matter goes to trial. Such an election is typical as the defence can change that election to a Judge alone trial after the preliminary hearing. It is far simpler to elect down to a judge alone trial than it is to elect up to a judge and jury, hence the election is usually for judge and jury.

It is important to understand that a preliminary hearing is not a trial where guilt and innocence is at issue. Traditionally, the sole purpose of the preliminary hearing is to ensure there is enough evidence to put the accused to trial. It is another safeguard to ensure the accused is fairly tried. If there is insufficient evidence, the defence will ask for a discharge of the accused at the preliminary hearing. If this is granted, the charges are dismissed and the accused is released from custody and no longer is charged with a criminal offence. If there is sufficient evidence, the judge will order the accused to stand trial in the superior court.

A preliminary hearing is heard in the lower level or provincial court. In order for the judge to make a determination of sufficiency of evidence, the Crown, who has the burden to show why the charges should proceed, calls witnesses to give evidence. The defence then has a right to cross examine the witnesses, which brings us to the ulterior reason for a preliminary hearing: to act as a discovery of information on the case, which will assist in preparation for evidence and to “pin down” witnesses on their evidence. This “pinning down” or defining clearly under oath and the record a witness’s evidence is important for trial. If a witness later changes his evidence, the fact at on an earlier occasion, when the matters were more fresh in the witness’s mind, the witness gave different evidence, will go to the credibility or believability of the witness at trial. Also, should the witness abscond or disappear, the earlier evidence given under oath at the preliminary hearing may be read into evidence at trial.

Despite the importance of the preliminary hearing to the full answer and defence of an accused, there have been calls to abolish the practice both in Canada and in other Commonwealth jurisdictions such as Australia. Some Caribbean Commonwealth countries, such as Trinidad and Tobago, have abolished the hearings. Indeed, in the UK, where the concept originated, as of April 2012, preliminary hearings or, as the English call them, committal hearings have been abolished. The changes are being phased in, with some jurisdictions still following the old system. Instead, the Crown is obliged to ensure full disclosure of the case is given to the accused in a timely fashion. Obviously, this safeguard cannot possibly take the place of a cross examination at a preliminary inquiry. In the United States, which does not follow the English common law tradition, under certain circumstances, there are preliminary hearings.

What will this mean for Mr. Delisle? In October, Mr. Delisle should be able to test the government’s case and determine the sufficiency of the evidence against him. The public however will not be privy to that information. Typically, the court on a preliminary hearing will order a ban on publication of the evidence heard, in order to ensure that no potential jurors are pre-disposed by the committal evidence. Additionally, the Crown may shut down the preliminary hearing at anytime during the course of it or even not hold the hearing at all, choosing to directly indict the accused to superior court. This tactic is helpful if the case is complicated to present or if the investigation is ongoing. There is, therefore, a possibility that Mr. Delisle will not get his “day in court” until trial. Until October, the story of the Canadian Spy will continue. 

Assisted Suicide Appeal By Canadian Government Announced

No surprise that the Federal government will be appealing the assisted suicide decision recently rendered by the British Columbia Supreme Court in Carter v. Canada (Attorney General). As discussed in my previous postings on the issue, the Federal government, through the Minister of Justice Rob Nicholson, had thirty days from the handing down of the BC decision to appeal to the British Columbia Court of Appeal. The time deadline was today and true to form, the government squeezed within the time period by filing the Notice to Appeal today. The government will also seek a stay of the ruling of Madam Justice Lynn Smith, which permits Gloria Taylor, suffering from ALS, to seek an assisted suicide when she so chose to do so through a rarely used constitutional exemption.

In Rob Nicholson's statement announcing the appeal, he maintained that the laws surrounding assisted suicide "exist to protect all Canadians." This idea of safeguarding an individual's life, even if the individual wants to end that life, is very consistent with the Supreme Court of Canada ruling in the Rodriguez case from 1993. Whether or not this idea of "government-knows-best" is still consistent with present Canadian values will no doubtedly be at issue when the Taylor et al case is ultimately heard before the Supreme Court of Canada. Again, considering the make-up of the present day SCC, particularly with the presence of Chief Justice McLachlin, who disagreed with the Rodriguez majority ruling, this rather outmoded idea of government as ultimate protector may be an idea of the past. Stay tuned to this blog for more on this issue.

Taxi! The New Alberta "Drink But Don't Drive" Reality

As of July 1, 2012, Alberta became a safer place, or at least that is the impetus behind Premier Redford's new amendments to the Alberta Traffic Safety Act. As a reminder of the many pitfalls of the legislation and the impact the new regime will have on Albertans, I am republishing excerpts of my previous postings on the issue. It is worthwhile to be conversant with these changes now that Stampede and the never ending wash of "Beer and Beans" are upon us. 

Here is the list of blogs on the issue and the blogs follow:

October 27, 2011, A Lesson On How To Get Tough With Impaired Driving

October 28 Impaired Driving: A Little Diversion

November 24 The Optics of Tougher Impaired Driving Laws

November 27 The Social Costs of The New Alberta Regime

November 28 The Charter and The New Alberta Impaired Driving Laws

November 29 Administrative Tribunals and Duties of Fairness

December 1& 2 Alberta's Response To The Partial Unconstitutionality of the BC Impaired Driving Regime 

From October 27, 2011, A Lesson On How To Get Tough With Impaired Driving:

"Two weeks ago, I invited a guest lecturer to speak to my criminal procedure and evidence class about defending impaired/over 80 offences. The lecturer, a lawyer, did an exceptional job of walking the students pictorially through a typical impaired/over 80 case by using photographs of the Alert or roadside screening device, of the "Breath Bus" or Checkstop bus, and of the breathalyzer machine (actually, the experts insist on referring to them as"instruments" per the Criminal Code).

It became very clear to the class that impaired/over 80 cases are complex, highly technical cases involving difficult evidentiary and legal issues such as expert evidence from the breathalyzer technician, Charter challenges, and the use of the legal presumptions under s. 258 of the Criminal Code. 

Another message was equally clear: do not drink and drive. Although drinking and driving cases are technical in nature and open to a myriad of legal arguments, if the Crown and police have all the legal requirements properly in place, a conviction will result. This was "scared straight" in legalese.

Now two weeks later there is much political talk of making the impaired driving laws tougher in Alberta. How tough? Well, BC tough. In tomorrow's blog, I will expand on what "getting BC tough" really means and the possible repercussions. But, in the end, will "getting tough" deter impaired drivers? Will the carnage on the highways, which we sadly read about on a weekly basis, lessen? Will these new laws make our roads safer?

It is difficult to determine if tougher laws do, in fact, deter and change behavior, despite Premier Clark's insistence that statistics prove her tougher laws work. I, for one, prefer the old fashioned route - education. My son and, recently, my daughter attended the P.A.R.T.Y or Prevent Alcohol and Risk-Related Trauma in Youth Program offered across Canada through the local health services. At this workshop, the 14 to 15 year olds meet people who have made the wrong choice to drink and drive. Although some are in wheel-chairs and some are not, they all are scarred, either physically or emotionally, by their actions. The students listen to their stories, they hear the terrible consequences of poor choices, and they decide not to make the same decision. To me, this is the best form of prevention."

From October 28 Impaired Driving: A Little Diversion:

"Yesterday, I blogged about the importance of education as the ultimate deterrence of impaired drivers. Today, as foreshadowed by yesterday's editorial cartoon in the Calgary Herald, I will comment on Premier Redford's interest in changing the Alberta Traffic Safety Act to impose tougher consequences on impaired drivers.

These changes are to reflect the recent amendments of Part 4 of the British Columbia Motor Vehicle Act, which imposes, at the roadside, automatic driving prohibitions from 24 hours up to 90 days, depending on your BAC (blood alcohol concentration) as shown on an approved roadside screening device. But the repercussions do not stop there: the car may be impounded at the roadside, if the police officer feels it is "necessary" to prevent the offender from driving. Of course, why it would be deemed necessary, considering the police officer just took the offender's licence, is a different matter. Additionally, a monetary penalty will be assessed at the roadside and must be paid within thirty days.

In other words, a lot of quasi-judicial punishment is being meted out at the roadside on the basis of a police officer's opinion. The repercussions are even tougher should the driver receive a warn on the roadside screening device and even tougher still should the driver fail. All done at the roadside, without judicial intervention, without due process, and all mandated by provincial legislation. 

So what if it lacks due process, as long as it works and deters people from drinking and driving? Well, let's look at the actual affect this kind of legislation has on impaired driving.According to BC Premier Clark, the new legislation cut in half deaths caused by impaired drivers. Indeed, the legislation was first introduced by the BC Solicitor-General in April of 2010 on the basis that tougher measures were needed to combat the increasing numbers of impaired drivers. Although, I was unable to find any statistics or reports supporting Clark's bravado, I did find recent statistics debunking the Solicitor-General's comments. In the crime statistics released by Statistics Canada on July 21, 2011, the rate of impaired driving in Canada dropped 6% in 2010, consistent with a general decline of the offence since 1981. Furthermore, the rate decreased, from 2009 to 2010, by 8% in British Columbia and by a whopping 14% in Alberta.

The reality may be that tougher sanctions will not deter people and certainly will not stop innocent teenagers from dying in horrific circumstances. Instead, other ways, which have a proven track record at reducing the offence, such as the use of the ignition interlock program, should be considered. Additionally, enhanced funding and expansion of educational programs targeting the youthful driver should be employed.

Education does work to change attitudes. In the end, roadside justice is a mere diversion from the real issue and the real problem."

From November 24 The Optics of Tougher Impaired Driving Laws: 

"With the dual announcement this week from Alberta, where new legislation mirroring B.C.'s efforts in the area has been tabled in the Legislature, and from British Columbia, where impaired driving fatalities have decreased by 40% since the new legislation has been in force, a review is in order. I will discuss some of the legal difficulties with the legislation and some of the social difficulties of connecting the effects of the new legislation with an absolute decrease in impaired drivers.

Many of the legal criticisms focus on the lack of due process afforded individuals when they are stopped by police enforcing the new law. Sanctions may be imposed without recourse to the criminal justice system and the determination of penalty is not administered by a judicial authority but by the police. By giving the police the decision making power usually confined to judges, the procedure not only circumvents the justice system but circumvents the legal rights protections we all enjoy under the Charter, particularly the s. 11(d) right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." As discussed in a previous blog, There Is No Road To Redemption, this type of crime prevention adheres more closely to the arcane "crime-control model" of Herbert Packer.

Another area of concern involves legal issues with the breathalyzer devices themselves and the inaccuracies connected to the machines. Thus, the lack of due process is compounded by the unreliability of the basis for the out-of-court sanction.

Still other legal critics accuse the police in British Columbia of selective enforcement: police are not enforcing the impaired driving sections found in the Criminal Code, opting instead to enforce the provincial legislation only. The result of such policy not only diverts from the justice system those offenders who would not normally be before the Court, as their blood alcohol concentration or BAC is below the legal limit, but also diverts those offenders who have a BAC above the legal limit and should face a criminal charge. In those circumstances, the criminal law, as properly wielded by the Federal Government under the Constitution Actand under the Federally enacted Criminal Code, is not being enforced.

On the other hand, there are benefits to the accused by this diversion from the criminal justice system. The offender is not subject to the risk of a criminal record if convicted. A criminal record not only carries substantial societal stigma but can result in a loss of employment and difficulties travelling across borders. 

Effectively then, the new legislation "decriminalizes" impaired driving without federal government input and without public input. 

How did this happen? The persuasive, yet misleading, use of statistical evidence may provide the answer as to why this legislation has been so readily accepted by the public and by the government. Returning to the B.C. experience, that law was first introduced in April 2010 as, according to the government, tougher measures were needed to combat the increase in impaired driving cases. This reasoning was, in fact, at odds with Statistics Canada's July 2011 report, which found an overall decrease of the rate of impaired driving throughout Canada with an 8% decrease in the rate of impaired driving in B.C. from 2009 to 2010. In Alberta the 2009 to 2010 rate decrease was 14%.

Despite these seemingly contradictory statistics, the recent announcement from B.C. suggests that alcohol related fatalities have decreased by 40%. In absolute terms, the statistic is astounding and very persuasive. In reality, however, this kind of statistical "evidence" of success must be approached with caution. As Mark Twain purportedly stated "There are three ways not to tell the truth: lies, damned lies, and statistics."

Although such a blanket dismissal of statistics is not warranted, it does give one pause for thought: statistics, as numbers, do not lie, but it is the interpretation of statistics, as offering support or dismissal of a claim or cause, which can be manipulated. Certainly, in the criminal justice arena, such statistical evidence is admitted with caution, particularly in the area of DNA evidence. As stated by Justice Finlayson in the 1998 Ontario Court of Appeal case inTerceira:

At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence.

Ultimately, statistics cannot provide a definite or absolute connection between the new legislation and the decrease in alcohol-related fatalities. The decrease can be explained in many ways such as educational programs deterring people from drinking, increased law enforcement by police, a general declining trend as observed by Statistics Canada, or increased awareness/deterrence through those very government media announcements we have heard touting the new law and its benefits. A quick internet search reveals a long list of B.C. town news sites, big or small, and even a few MLA websites as well, reporting on the B.C. government's recent statistical news.

In the end, we need to be aware that what we see and hear may not be what we are actually getting. In this, as with so much public policy, perhaps only time will tell."

From November 27 The Social Costs of The New Alberta Regime:

"Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens."

From November 28 The Charter and The New Alberta Impaired Driving Laws:

"Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, aCharter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS Community, Gosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights."

November 29 Administrative Tribunals and Duties of Fairness:

"Another aspect of the new legislation is the ability to appeal the automatic and immediate licence suspension to the Alberta Transportation Safety Board. However, the only consideration on appeal is whether or not the appellant drove as alleged either impaired or with a BAC over 50 or 80. There is no discretion in the Board to quash the suspension or disqualification to drive other than proof the appellant did not drive impaired or over 50 or over 80. 

The Board is, of course, an administrative tribunal and not a criminal court.Therefore the same evidentiary and exclusionary rules do not apply per se. Furthermore, the Board, not being a court of competent jurisdiction cannot provide Charter remedies under s. 24(1) or s.24(2). However, the Board is subject to the rules of natural justice and is therefore bound by duties of fairness. As Madame Justice Paperny stated in the 2003 Thomson case:

In summary to comply with its duties of fairness, the Board must:

a) inform the appellant of the case against him or her,

b) permit the appellant a meaningful opportunity to answer the case against him or her,

c) give full and fair consideration to the issues,

d) consider the source of the evidence or information including whether it was gathered in a manner contrary to the Charter and Charter values,

e) consider relevant evidence and information, and as a corollary

f) not consider irrelevant or unreliable evidence or information, 

g) not act arbitrarily, for an improper purpose or with malice.

Where the Board fails to meet these duties, the decision will be subject to judicial review. 

Despite these duties, Justice Paperny acknowledges that it is possible for a Board to confirm a licence suspension after being satisfied the offence is made out and for a criminal court, at a later date, to acquit the accused of the crime. This result, according to Justice Paperny "is not incongruous, unreasonable or a legitimate basis for avoiding the Board...the loss of a driver's licence...is a civil consequence" distinct from criminal penalty.

The realities of the proscribed licence appeals mechanism may not be "incongruous" but will certainly add another dimension to an impaired driving case. Now an offender may be faced with two hearings on the same issue but because one hearing is in the civil context, there is no double jeopardy and no inconsistency.

There may be duties abounding in this regulatory scheme but no matter how presented, because the stakes are high, the duties will have to be fulfilled scrupulously and dutifully. If not, another hearing, in the form of a judicial review will add yet another dimension to what is already a dual procedure. The increased public cost of such a scheme may prove to be an additional burden on an already burdened justice system."

From December 1 Alberta's Response To The Partial Unconstitutionality of the BC Impaired Driving Regime and from the December 2 Follow Up Post:

"Yesterday, in Sivia v. British Columbia (Superintendent of Motor Vehicles), the British Columbia Supreme Court Justice Sigurdson struck down portions of the amendments to the B.C. Motor Vehicle Act. The amendments in question related to the "automatic roadside prohibition" or ARP, imposed when a B.C. driver was stopped by police under the suspicion of drinking and driving.

The legislation permitted ARP based on the "warn" or "fail" of a roadside testing device. A "warn," equivalent to a BAC (blood alcohol concentration) of between .05 and .08, would result in immediate suspension of the driver's licence, impoundment of the motor vehicle, and a fine. A "fail" would attract similar sanctions but also the criminal law regime under s.254 of the Criminal Code. 

Appeals of the ARP went to an administrative tribunal, under the auspices of the Ministry of Transportation. According to the legislation, the appeal process was limited to considering whether or not the appellant was the driver and whether or not he/she received a "warn" or "fail" on the roadside device. There was no ability to argue against the suspension outside of those very limited factual parameters.

Justice Sigurdson concluded that the legislation was not contrary to s.11(d), the presumption of innocence protection in the Charter, nor was it contrary to s.(10)b, right to counsel.Similarly, s. 7, right to liberty, arguments were dismissed in a very summarily fashion. However, Justice Sigurdson did find the ARP, as it related to roadside device "fails," to be an unreasonable search and seizure under s.8 of the Charter as the scheme authorizes a warrantless search without procedural legal safeguards, most notably, the lack of a meaningful appeal process at the administrative level. Justice Sigurdson acknowledged that the ARP was civil in nature and not criminal but even so required some level of due process when determining if an ARP was appropriate under the regime.

How does this case impact Alberta's proposed amendments to the Traffic Safety Act?  If youread the media articles, certainly the Alberta government is touting this decision as the "mother of all decisions," which effectively gives the Alberta regime the "seal of approval." Why the boast? Simply put, the Alberta amendments differ in the administrative appeal process and does have those safeguards which created the Charter difficulties in British Columbia. Do you think maybe the Alberta government was aware of this case before they created their amendments? 

Certainly, if the same arguments as in Sivia were brought in Alberta, there would, most likely, be no finding of unconstitutionality. However, that does not mean there are no arguments to be made. I refer to my previous posts on the issue, which suggest other arguments, not argued in Sivia, and which can be found here.

Indeed, Sivia may provide further support for some of the issues raised in previous posts. Although Justice Sigurdson found the ARP regime was regulatory and not criminal in prospect, such differences do not foreclose Charter scrutiny and possible unconstitutionality.

Further, as discussed in the Administrative Tribunals and Duties of Fairness posting, the transportation tribunals hearing the ARP appeals will be under the "fairness" microscope and will need to give each appeal full and fair consideration or be subject to judicial review. Such considerations would include whether or not the licence was suspended contrary to theCharter and/or Charter values, even though the tribunal itself has no true remedial powers under the Charter. This is a heavy burden indeed. Particularly as the members of the tribunal do not necessarily have any legal training. 

For further clarification, the proposed Alberta regime requires the administrative tribunal sitting on an appeal of an automatic roadside suspension, resulting from a "warn," to consider the certificate of annual maintenance of the approved screening device and the records of the last calibration of the device. On the basis of those documents, the police report, and any other relevant evidence, either sworn or unsworn, the tribunal must be satisfied that the driver consumed alcohol with a blood alcohol concentration equal to or over .05 at any time within 3 hours after having driven a motor vehicle, before confirming the licence suspension.

In the case of a "fail," where the BAC would be at or over .08, and would therefore trigger the Criminal Code process as well, the administrative appeal board would also consider any certificate of analysis pursuant to s.258 of the Criminal Code and any other relevant evidence. In other words, the appeal hearing would not be unlike trying the matter before the criminal courts except that the process is civil and the standard of proof is not beyond a reasonable doubt but a lower standard of balance of probabilities.

The B.C. regime differs significantly and there is no ability to argue that the approved roadside screening device is faulty. In B.C., there has been significant issues with the roadside devices used.

 In the end, the Alberta government's response appears to be slightly premature and overly confident. What is clear is this: the B.C. case will not end the legal concerns with this legislation."

Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada

Last posting, I gave some elementary definitions underpinning the controversy surrounding the right to die issue. I started and ended the posting with a reminder: that these issues might be political, philosophical, religious, and socio-economic, but they are also very personal issues as well. Sue Rodriguez is a reminder of this important factor in our discussions. She is also the moniker for the seminal right to die case heard in 1993 by the Supreme Court of Canada: Rodriguez v. British Columbia (Attorney General).

As most of us well know, the Supreme Court of Canada denied Sue the right to doctor-assisted suicide. Returning to the definitions given in my last posting, Sue’s case was not one of euthanasia, whereby a third party takes another’s life in order to ostensibly relieve the ill person’s suffering, but rather the right to legally take her own life, suicide, with the help of a physician. Recall that under section 241 of the Criminal Code of Canada, anyone who assists another person to commit suicide is guilty of an offence. Thus, Sue was seeking protection for the person, the doctor, who would be assisting her in ending her life at the time she appointed. She explained very poignantly why she so desperately wanted her case to be successful: She wanted her son, who was then nine years of age, to “respect the law and did not want her last act on earth to be illegal.” In her book, Uncommon Will, she explained further, "But if I can't obey the law in the end, I'll know at least I did all I could to change it. So will he [her son]." To Sue Rodriguez, her physicality was an integral part of her identity: "If I cannot move my own body I have no life."

As soon as Sue launched her legal battle, lines were drawn. Many right to life groups opposed her claim, likening her position to state approved euthanasia as practiced by the Nazi Germany regime. She also had her supporters, some who were with her until the very end and others who she could no longer trust. John Hofsess, an initial supporter, who was the organizer of the Right To Die Society, quickly became an insider and was heavily involved in Rodriguez’s bid until she learned he had, without her permission, penned a letter to the editor of the Vancouver Sun, under her signature, criticizing the ALS Society. In the end, it was Sue’s lawyer, Vancouver based human rights lawyer Chris Considine, and then NDP MP, Sven Robinson, who stayed the course. Indeed, Sven and an unnamed doctor were with Sue Rodriguez on February 12, 1994 when she passed away after she self-administered a fatal concoction through a straw.

Legally, the Rodriguez decision not permitting assisted suicides and finding section 241 constitutional, split the nine-member court with five justices upholding the section and four justices finding the section constitutionally flawed. The argument was primarily based on section 7 of the Charter of Rights and Freedoms, what is known as the right to life section, although the cruel and unusual punishment section pursuant to s. 12 of the Charter and equality section 15 were also invoked. In the end, the majority judgment, preferred the sanctity of life over the right to die and collective societal rights over an individual’s right to control his or her own life.

The four dissenting justices who sided with Rodriguez, which included then Chief Justice Antonio Lamer and present Chief Justice Beverley McLachlin, wrote in the minority judgment that "the right to die with dignity should be well protected as is any other aspect of the right to life." In their view the Criminal Code prevents people like Rodriguez from exercising autonomy over their bodies available to other people.

What does this case bode for the future? Presently, as I will discuss more thoroughly in a future posting, the British Columbia Supreme Court has recently once again considered the right to die issue through three very different plaintiffs: Lee Carter, Hollis Johnson, and Gloria Taylor. Lee Carter, together with her husband Hollis Johnson, raised the issue on behalf of Lee’s mother, who was forced to end her life overseas instead in her home in Vancouver due to the ban on assisted suicide. Gloria Taylor, like Sue Rodriguez, suffers from ALS and wishes, like Sue, to end her life legally. On June 15, 2012, Madam Justice Lynn Smith found for the plaintiffs and struck down section 241, giving the Federal government a year to amend the Criminal Code accordingly. In the meantime, Justice Smith allowed Gloria Taylor, through a constitutional exemption, the conditional right to commit suicide with a physician’s assistance. A constitutional exemption is a rare power under s. 24(1) of the Charter, used by the court to exempt individuals from the effects of legislation on the basis that the legislation, for this particular individual, is constitutionally oppressive.

Considering the justices who compose the majority are no longer sitting on the Court and Chief Justice McLachlan, a member of the minority in favour of striking down the legislation, is still sitting with a much different court composition, I might add, the arguments raised and accepted in the Carter case may survive Supreme Court of Canada scrutiny. There have also been many more cases of assisted suicide since the Rodriguez case; cases in which the courts have been extremely reluctant to find guilt under s. 241.

In the next posting on this issue, I will discuss some of those cases and the impact they might have on a future Supreme Court of Canada decision. Whether or not there will be such a future SCC decision is dependent on the federal government, particularly Rob Nicholson, the Minister of Justice, who must decide whether or not to appeal the Carter case to the BC Court of Appeal. Such decision must be made within thirty days of the decision, making the deadline the end of next week. In anticipation of this decision, there are a number of websites with petitions asking the Minister to appeal such as the Council of Canadians with Disabilities. Yet, some opinion polls suggest Canadians are in favour of some form of doctor-assisted suicide. The issue therefore remains unresolved.