This Takes Precedence! How the Bedford Case Empowers Legal Precedent

The Bedford case is interesting on many levels. On the public level, it recognizes the modern realities of what historically has been considered a vice in our society. On the private level, it recognizes the harshness of the prostitution laws on those whom the laws were meant to protect. On the Charter level, it recognizes the breadth of the principles of fundamental justice in our society while giving shape and meaning to the phrase “life, liberty and security of the person.” Finally, on the legal jurisprudence level, the case recognizes the importance of a flexible concept of case precedent.

In a previous posting, I discussed a judge’s use of legal and factual analogy to come to a decision in a case. The concept of legal precedent, whereby a decision is made based on previous similar decisions typically from a superior level of court, not only provides a solid basis for a decision, it also gives the decision an aura of authority and power. Power, in the sense of persuasive power.Authority, as in the correctness or soundness of the decision. It is a remarkable tool, which serves a dual purpose: the power and authority arising from precedent maintains the rule of law in the legal sphere and in the public sphere. Precedent, used appropriately, empowers the words of the court and gives them the force of the law. For further discussion on the coercive power of judicial pronouncements, see my postings here on Robert Cover and his seminal essay on “Violence and The Word.”

In Bedford, the majority needed to deal with the issue of legal precedent to lend their decision an air of legitimacy. The prostitution laws at issue had already been the subject of previous constitutional arguments before the highest level of court: the Supreme Court of Canada. To make pronouncements again and by a lower court seemed officious and redundant. In the case of the prostitution laws, the stakes were even higher as the laws were the second-generation iteration of what were originally known as the “soliciting laws.”

In the 1980s, after the advent of the Charter, the government was forced to change the soliciting laws as a result of the Supreme Court of Canada’s interpretation of the word “solicit” as found in the section. The original section prohibited “everyone who solicits any person in a public place for purposes of prostitution."

In the 1978 Hutt case, the Supreme Court of Canada defined “solicit” as pressing and persistent conduct. Hutt, a 23 year-old prostitute working on the infamous Davie Street in Vancouver, British Columbia, had made eye contact with a potential client driving slowly by her. Hutt smiled and the client, an undercover police officer, smiled back and stopped his car. Hutt jumped into the car, agreed on the cost of her services, and was promptly arrested. The SCC, by defining “soliciting,” found that a mere nod of a head was not enough to fulfill the actus reus or prohibited act requirements under the section. Soliciting required something more than just agreeing to sex for money. It required the prostitute to accost and importune, not just smile.

The result of the decision was explosive: the police refused to lay charges under the section. This public pressure caused the government to finally change the section in 1985 to the present day offence of communication for the purpose of prostitution under s. 213 of the Criminal Code. The meaning of “communication” is much broader than “solicits.” One can communicate through word or gesture and would most certainly describe Hutt’s contact with the undercover officer.

But that was not the end to the narrative. The new section, created in the new Charter era, was further scrutinized; not on the basis of nomenclature but on the basis of constitutionality. This was done preemptively through a reference to the Supreme Court of Canada. As discussed in previous posting, a reference permits the court to pre-vet an issue and to make pronouncements on the efficacy of legislation before it is enacted and subject to legal attack. In the Reference on the prostitution sections, the Court found the new communication for the purpose of prostitution laws were inconsistent with freedom of expression under s. 2(b0 of the Charter but were justified in a free and democratic society and thus appropriate.

Fast forward to today and the similarities are apparent. One of the arguments in the Bedford case, attacked the constitutionality of the very same communication section as previously considered by the SCC. In that instance, the Bedford decision sits solidly behind legal precedent by dismissing the argument as already decided by another, more authoritative court. The more interesting issue is the constitutionality of the other prostitution related charges: keeping a common bawdy house under s.210 and living off the avails under s.212(1)(j). It is here the court relied on a more flexible and contextual approach to legal precedent, while still upholding the concept of court hierarchy.

Two scenarios were discussed. One scenario contemplated the ability of a trial court or lower level court, to permit counsel to build a record of evidence, which would then form the foundation of a future argument before a higher and thus more authoritative court. This higher level court would be in the position to revisit the issue to determine if the passage of time has changed the issue to require a new and different look at the issues involved. The other scenario, contemplates situations where the issues to be argued may be related but are framed differently enough that a decision on the matter is not tied by the rules of legal precedent. This flexibility permitted the court in Bedford to come to a decision on the case and to tackle, head-on, the modern paradox found in the overly broad prostitution sections.

Although the passages on precedent are not the crux of the Bedford case, the court’s view of the issue brings or shall we say, drags, traditional legal principles into the 21st century and beyond.

The Result In Canada (Attorney General) v. Bedford

The much awaited decision from the Court of Appeal for Ontario in the Bedford case on the constitutionality of various prostitution related sections of the Criminal Code has finally been released.

The majority of the court agreed with Justice Himel's lower court decision that s. 210 common bawdy house and s. 212(1)(j) living off the avails of prostitution are unconstitutional as being contrary to the principles of fundamental justice under s. 7 of the Charter.

In the matter of keeping a common bawdy house, the Court struck down the section but suspended the invalidity of the section for 12 months to give Parliament an opportunity to redraft the section in a Charter friendly manner.

The offence of living off the avails of prostitution under s. 212(1)(j) is unconstitutional in the limited circumstances of where the relationship between the prostitute and those living off the avails is not exploitive. For example, where a prostitute supports his or her family with the earnings of prostitution, the family would not be exploiting the prostitute and should not be charged under this section. This exemption would not preclude "pimps," who put prostitutes on the streets for their own economic benefit would still be subject to this subsection. 

Where the court did not agree with Justice Himel was on the issue of the constitutionality of s.213 communication for the purpose of prostitution. The court upheld this section on the basis of a previous decision from the Supreme Court of Canada (SCC) on the same issue. In that previous 1990 case, Reference re ss. 193 and 195.1(1) (c) of the Criminal Code, the Government of Manitoba referred the then new and untested communication sections to the SCC to determine if the sections would withstand a possible Charter challenge. For further discussion of references to the SCC, please read my previous posting here. The SCC found section 195.1(1)(c), the same section at issue in Bedford but numbered as s. 213(1)(c), to be contrary to fundamental freedom of expression under s. 2(b) of the Charter but saved under s. 1 of the Charter as a reasonable limit in a free and democratic society. I have discussed s.1 in relation to freedom of expression in some previous postings and most particularly here and here.

The decision is of interest in terms of the findings of the Court on the s.7 issue. However, the decision also makes some important comments on the principle of precedent and the restrictions on a Court when revisiting a decision, which has already been a subject of consideration by a higher level Court. This fascinating discussion, which I suggest impacted the decision in Bedford and provides guidelines for future cases, will be the subject of my next post. 

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.

Blogs As Graffiti? Using Analogy and Metaphor in Case Law

Legal reasoning requires the decision-maker to use both factual and legal analogies and precedents. Legal precedent provides a solid foundation for a decision as it is based upon an earlier decision, typically from a superior level of court, made in the same circumstances to the one being decided. Analogy is a much subtler concept, involving similarities between the two situations. Analogy, therefore, requires an analytical dissection of the two circumstances to find comparables. The beauty of analogy is not only in the similarities, but in the dissimilarities as well: oftentimes it is the distinctions between the cases that matter. Although there are a set of principles and rules to assist in the appropriate use of precedent and analogies, courts have also used metaphoric language to come to legal conclusions.

A metaphor “expresses the unfamiliar in terms of the familiar.” A connection is therefore made between seemingly unconnected objects with the happy result of revealing the objects true and very real similarities. Metaphors are rich and varied and a very compelling way of defining an object or concept. Advertising uses metaphors the best: for example, the “life is a journey” concept “flies” well when considering travel options. As a subset of metaphor is the language technique of “simile,” whereby the comparison between the two objects is proffered more directly by suggesting one object is like another. A simile such as “this fog is like pea soup” conjures up an immediate physical description of the fog, which transcends describing the fog as merely “dense.” But how useful is the use of figures of speech in case law? Is it a  “good fit” (using a tailor metaphor) with the legal principles of precedent and analogy?

Let’s look at a recent example. On March 2, 2012 the UK High Court in considering the issue of defamatory blog comments in Tamiz v Google Inc Google UK Ltd, found Google Inc., the provider of the blog platform, not responsible for the clearly defamatory comments. Justice Eddy came to the conclusion using a “wall covered in graffiti” analogy: Google is like the owner of a building and the defamatory comments are like graffiti placed on the external wall of the building. Just as the owner of the wall is not responsible for the content of the graffiti, Google, as the mere provider of the “space” in which the comments were made, is not responsible for the content of the blogs. Justice Eddy recognized that the owner of the wall or “internet space” may, once the graffiti or comments are made, remove or “whitewash” (do I sense another metaphor here? Whitewash as in censorship perhaps?) the comments. As stated by Eddy J., “That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher.”

This colourful and powerful analogy, although not truly a legal analogy, becomes the defining moment of this case. Google Inc. is then “cut” (sorry another tailor metaphor) from the case. But as compelling as this analogy is, the question still remains whether this is sound reasoning; sound enough to extricate Google from a lawsuit?

Let’s delve deeper into this analogy: Google provides the wall. Using the analogy to its fullest, Google doesn’t just provide the wall; Google owns the wall - as in the owner of the building with the graffiti sprayed on it. Taking this analogy further, Google owns the wall, which is then provided to others, bloggers, for their use. But the owner of the building does not “provide” the graffiti makers with a wall to spray. In fact, the graffiti on the wall is there without the consent of the owner.

Furthermore, the owner of the wall does have responsibilities to, as Justice Eddy so eloquently put it, “whitewash” or remove the offending marks. Not to do so, is usually in contravention of a City by-law, making the provider of the wall responsible for removal of the comments. Is that not the issue really in this defamation case? Removal of the comments is what is at the core of the lawsuit. Removal, which if it is not done in a timely fashion, does implicitly suggest the owner “likes” (as in Facebook “likes” if you need a metaphor) the comments.

The recent, Supreme Court of Canada case, Crookes v. Newton, is another slight twist on the provider as publisher conundrum. Newton, as the owner and operator of a website, provided hyperlinks to other Internet material, one such link contained defamatory comments regarding Crookes. The majority of the SCC, was careful to “contain” (yes, another building metaphor) the argument to the issue of hyperlinks as a form of expression and not as a form of publication. To hyperlink is not to “like” or approve of the linked material – it is merely to extend the research to another document and provide the reader with another source of information, which the reader can then access or not, and agree with or not.

To come to this conclusion the majority used good old fashion legal precedent and legal analogy based on case law. However, the generous use of metaphor assisted in creating a more compelling argument. In dismissing the Crookes publication argument, Justice Abella used the space or size metaphor to visually describe the spatially immense implications of “broadening” the meaning of publication in the circumstances of the case. Movement metaphor was also used to discuss the “innocent dissemination” exception as passive – almost robotic, without thought or action. The most powerful metaphor by far was the crux of the case as “hyperlinking is referencing”; a print metaphor, using visions of University research papers and academic writing. Then, to give the argument further weight (metaphor), Charter values are brought into the discussion with the caution against restricting the “flow” of information – a movement metaphor and a water metaphor.

The above illustrates an excellent use of legal principles and figures of speech to arrive (journey metaphor) at a cogent argument that has “legs.” This is another movement metaphor that implies the argument is not only a successful one but also a decision that will “achieve strong audience acceptance or interest.”

Which brings me back to the analogy in Tamiz and the dual difficulties found in that decision. The case highlights the difficulty in using analogy or figure of speech to enhance the already cogent legal analogy or precedent. It also shows the care which must be used in using figures of speech to make a point: if so used, the analogy or metaphor must logically connect the two objects as any fallacy arising from the connection will most certainly detract from the argument or finding.

We use metaphor constantly in making sense of the world around us. I highly recommend the book “Metaphors We Live By” written by the linguist George Lakoff and philosopher Mark Johnson for further reading on this fascinating subject. As a result of this seminal book, there is now a whole area of legal jurisprudence on the use of metaphor in legal reasoning (see also publications by professor Steven Winter). Being aware of this human penchant for metaphor and connection does provide another analytical tool (a device or work metaphor using the mind as physically embodied in the hands using a tool) to enhance our reading of legal text. It also provides us with a different view of legal argument and how that argument is communicated through case law.

The Omnibus Crime Bill Passed By the House of Commons

After a few minor adjustments, the Omnibus Crime Bill C-10, also know formally as An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, or informally by the short title Safe Streets and Communities Act, was passed by the House of Commons today in a final vote of 154 for the legislation and 129 against the Bill. Although the Act merely awaits Royal Assent to become law, it is still worthwhile to critically revisit the myriad of problems arising from the enactment of the new law. With that in mind, I have recommend reading the following:

1. The Canadian Bar Association - 10 reasons for opposing Bill C-10

2. The Canadian Council of Criminal Defence Lawyers on the negative impact of the new legislation on those offenders suffering from mental illness

3. First Nations concerns that Bill C-10 fails to address the issue of "over-incarceration" of Aboriginals. See also the submissions to parliament on behalf of the Assembly of First Nations and see the petition to the Senate to oppose the Bill on the Nishnawbe-Aski Legal Services website.

4. The Canadian Civil Liberties Association 

5. My previous blog on the issue from October 15, 2011: When Does One Marijuana Plant Plus One Shared Joint Equal Nine Months  Incarceration?

Update on Tuesday, March 13, 2012 at 2:47PM by Lisa A. Silver

Two more interesting reads on the issue are:

1. "Why the Canadian business community should be concerned about the the crime bill passed on Monday" on the globe and mail website  

2. Quebec refuses to implement Harper's crime bill also on the globe and mail website

3. Louse Arbour, former Supreme Court of Canada Justice and now member of the Global Commission on Drug policy, speaks out against Bill C-10 and mandatory minimum sentences.