Let’s Talk About: Diplomatic Immunity

In a previous posting, I discussed spying in Canada with reference to the newest case involving Jeffery Delisle; a Canadian Naval officer charged with both Criminal Code and Security of Information Act offences for allegedly disclosing state secrets to a foreign entity. Mr. Delisle is in custody awaiting a bail hearing, which is now scheduled for February 28, 2012. In the wake of the scandal, is the increasingly number of Russian diplomats leaving the country, as two more have left, bringing the total to six embassy workers whose “contracts” have not been “renewed.”

These hasty departures bring to mind the issue of diplomatic immunity, a generic term used to describe the governmental policy of extending legal immunity to foreign diplomats residing in the host country. Such protection ensures that diplomats do not face criminal prosecution or civil liability under the host state’s legal system. Instead, the host country can “expel” the rule-breaking diplomat from the country.

This special form of immunity comes from the Vienna Convention on Diplomatic Relations (1961), which Canada ratified in 1966 and implements through the Foreign Missions and International Organizations Act. The purpose behind diplomatic immunity, which initially arose hundreds of years ago through custom and practice, is to ensure diplomats can freely and independently execute their duties to their country without undue influence from the host nation. The key to such a policy is reciprocity and certainly Canadian diplomats in foreign countries enjoy the privileges and benefits of diplomatic immunity.

The result is less than salutary for the host country, as diplomats are people and, as such, break rules, as people are wont to do. The difficulty is when the rule breaking amounts to a criminal offence. If the crime is deemed serious enough, the diplomat’s home country may waive immunity and the culprit can be brought to justice in the visiting state. Typically, this happens when the incident is outside of the diplomatic duties. Thus, in the Delisle case, if any diplomats in Canada were involved in the breaches of security, they would be protected by diplomatic immunity. The only recourse would be expulsion or, perhaps, a non-renewal of their “contracts.”

There is another point to keep in mind: a waiver of diplomatic immunity can only be done by the country and not by the individual involved. The diplomat has no authority or decision-making power on the issue of waiver. If the home country, for whatever reason, determines the diplomat must face the music, so to speak, in the foreign country, then the diplomat will face prosecution there. Alternately, the home country can recall the diplomat and prosecute the diplomat at home.

This was the case with Andrey Knyazev, the first secretary of the Russian Embassy in Canada, who in 2001 drove onto a sidewalk in Ottawa, killing prominent lawyer Catherine MacLean. According to the police reports, Knyazev was so drunk at the time; he could barely walk or speak. The then Russian ambassador to Canada, Vitaly Churkin, refused to waive diplomatic immunity in the case, opting instead to try the offender in Russia. Churkin is presently the Russian envoy to the United Nations.

In 2002, Knyazev was tried in Russia for involuntary manslaughter while impaired. The maximum sentence for the offence was five years imprisonment as opposed to a maximum sentence of life imprisonment in Canada. The outcome of the case was uncertain as Knyazev, citing his diplomatic immunity, refused to provide a Breathalyzer sample. Although an Ottawa police officer, who first arrived on the scene, testified, witnesses to the actual incident were lacking.

According to Knyazev’s evidence at trial, he was not drunk, he feared entrapment by the police, the driving conditions were poor, and MacLean was walking on the street. However, the Russian prosecutor presented Canadian police records that showed Knyazev had been involved in a total of four traffic accidents over a two-year period and was intoxicated in two of the incidents. Due to diplomatic immunity, Knyazev had not been charged for those previous events.

Knyazev was ultimately convicted and was sentenced to four years imprisonment. Knyazev appealed sentence and pleaded for a suspended sentence. The appeals court rejected the argument and Knyazev was sent to a Siberian Penal Colony to serve his sentence.

In the aftermath of the case, Canada implemented in 2001 a zero tolerance toward diplomatic impaired driving. According to the Foreign Affairs website, the revised policy is as follows:

The policy provides that diplomats will lose their driving privileges for a first instance of impaired driving. The loss of privilege will occur on the basis of a police report substantiating that a diplomat was driving while impaired. The Department encourages police forces to lay charges for impaired driving, but will take action regardless of whether charges are laid. In most cases, the driving privileges will be suspended for one year. 

In the case of a second instance of impaired driving, or a first offence involving death or injury, the policy provides for the diplomat to be recalled or expelled. … Since Canada cannot directly sanction diplomats under these international rules, the loss of driving privileges will be effected following a waiver of immunity by the diplomat's state or, alternatively, through a written undertaking by the Head of Mission pledging that the diplomat will not drive. Should a state refuse to exercise either of these options, the Department will request that the diplomat be recalled or will expel him or her.

Consistent with this policy, in 2005, three diplomats in Ottawa were investigated for impaired driving and received driving suspensions. The diplomats’ names were not released.

Despite the nomenclature attached to this revised policy, one of zero tolerance, diplomats do not face the full force of Canadian law and are subject only to driving suspensions. Certainly, this “punishment” is minimal compared to the stigma and deterrence of a criminal trial, conviction, and sentence.

It appears the government’s “let’s get tough with diplomats” stance is superficial at best. Even with the revised policy, diplomats commit offences in Canada and simply leave the country, never to return or face justice. Although the policy reasons behind such immunity are reasonable, one wonders if there is a better way to ensure diplomatic independence without sacrificing public safety. Considering our core values, which require acceptance of responsibility and consequences to those who choose to breach criminal laws, diplomatic immunity should be re-visited and revised to bring this ancient custom into the 21st century.  

Can Criminal Law Keep Up With The Digital World?

A mere ten years ago, we did not “google” or “friend” or “wiki.” Twenty years ago, we did not listen to music on an iPod or talk on a Blackberry. Back then we bought Kodak film and waited to view our photos. The next decade should prove to be even more progressive as we start to use “bio interfaces” to directly connect to the Internet, thereby cutting out the “middle-man” or, to be more accurate, the “middle-machine.” With the direct ability to connect with technology, we will also see more data interfaces with which to interpret data, such as Wolfram Alpha. The advances and changes in technology have indeed been incredible.

With these new technologies, there will be challenges. Not in terms of how well we will adapt to the new advances: history has shown humans to be great adapters to new environments. Our challenge will be how well our institutions will be able to adapt and respond to the rapid changes. It is this challenge of how the criminal law responds to the new digital age, which was the subject of the panel presentation at the recent Alberta Law Conference.

To discuss this pressing issue, the panel consisted of two prosecutors with an expertise in presenting digital evidence in criminal cases: Daniel Scanlan, a B.C. Crown Attorney and author of Digital Evidence In Criminal Law and Marc Cigana, presently prosecuting the Quebec Hell’s Angels case. The discussion was first framed in the privacy context through the realities of society’s paradigm shift away from a full and robust privacy protection network, where personal information is jealously guarded and access to it is restricted, to a society of informed by social media, where intimate details are publically revealed and dynamically transferred world wide in seconds.

It is this new paradigm, which has kept the courts, the lawmakers, and the advocates behind the “eight-ball” and has created a legal disconnect. Decisions are rendered on technology, which by the time of the decision is no longer in use, thereby making the decision useless. Similarly, any legislative response is outdated by the time of the enactment date. The result is a patchwork of case law, too specific to be of much use as a precedent and lacking the informational basis to become legal principle.

The solution was a call by the panel for a more principled approach to technology. Instead of approaching digital evidence on a case-by-case basis, the participants in the criminal justice system must look beyond the facts and provide the evidentiary basis needed for a meta-decision on the use of digital technology. Such a decision or principle would produce a more measured response by our criminal justice system to new technological advances, thus promoting just results congruent with our digital age.

As it stands, the Courts struggle to conceptualize the new technology’s place in the legal literature. A neat example is the determination of the validity of a warrantless search of a cell phone based on the presence or absence of a reasonable expectation of privacy. Instead of viewing cell phones, as cell phones, and thus as a new entity requiring a unique reasonable expectation of privacy determination, the Courts struggle to pigeonhole cell phones into known categories. Thus the Court asks: Is a cell phone like a notebook? Or is a cell phone like a purse? Or is a cell phone like a computer? Unsurprisingly, the answer differs from case-case and from province to Province, leaving the case law in flux.

What is the Supreme Court of Canada’s position in this conundrum? So far, they have not made any cohesive determination on the issue but there is hope they will enter the fray with the Telus case, which recently received leave to appeal to the Supreme Court of Canada pursuant to s.40 as an issue of national importance, without being heard at the Court of Appeal level. In Telus, the police used a general warrant under s.487 of the Criminal Code to seize Telus records of text messages from the accused’s cell phone. The difficulty was the warrant gave authority not only for the seizure of historical messages, already sent, but also for the seizure of messages as they were being generated. Telus took the position such a seizure was akin to an interception of electronic communication under Part VI of the Criminal Code, which required a wiretap authorization.

Unfortunately, the framing of the case appears to be inviting the pigeonhole approach: Are the text messages merely letters in transit or are they more like a private conversation over the telephone? Instead of focusing on the characterization, the Court should be focusing on crafting a judgment, which will set down the general legal principles to be followed when faced with digital technology in the criminal law.

How they will in fact approach the issue will determine whether the digital future can easily live within our traditional precepts or whether our criminal justice system is just too outdated to face the challenges of tomorrow.    

The Goudge Report And Expert Evidence

I had the pleasure of attending a top-notch legal seminar at the Alberta Law Conference organized by the Canadian Bar Association on Evidence and Advocacy. Madam Justice SheilahMartin moderated the main panel discussion, presented as a joint session for all practitioners in family, criminal, and civil law including members of the judiciary, with Mr. Justice Goudge of the Ontario Court of Appeal and Toronto criminal lawyer, Mark Sandler as keynote speakers. The presentation was excellent and was about excellence as the title of the panel suggested: Recommitting to Excellent Expert Evidence.

The basis of the discussion was the 2008 Goudge Report on the Inquiry Into Pediatric Forensic Pathology in Ontario and the recommendations contained therein for the just and appropriate use of expert evidence in the criminal justice system. The Inquiry was struck after systemic frailties surfaced in pediatric forensic pathology in Ontario, which was marked by the flawed and inadequate methodology used by the primary pathologist in the field: Dr. Charles Smith. These flaws were exacerbated by a system, which unquestionably supported and approved of Dr. Smith’s role as an expert. The result was devastating as loving parents and devoted caregivers were wrongly convicted of killing the children they loved.

In one such case, called Amber’s Case after the child who died, the young neighbourhood babysitter was accused of shaking Amber to death. The teen insisted the child fell down a set of stairs but Dr. Smith, in his “expert” opinion, adamantly maintained the teen’s scenario was impossible. The teenager was ultimately acquitted after the Trial Judge found serious flaws in the expert evidence. Flaws, which remained uncorrected in future cases. Amazingly, the exonerated teen went on to become a Crown Attorney. This is a perfect example of the human ability to triumphantly overcome even the greatest adversity.

There were a number of factors contributing to these “unassailable” convictions. For one, Dr. Smith considered himself a Crown witness who was committed to the ultimate goal of conviction. Oftentimes, he was permitted to give evidence in areas outside of his knowledge and expertise. Much of his opinion was not based on scientific evidence but was merely anecdotal. Furthermore, his reputation was so fixed that even defence lawyers were reticent to challenge his position.

All of these factors came together in a system, which favoured the admissibility of forensic evidence from accepted experts without inquiring into the actual foundation of the opinion. There was no question of how Smith came to his opinion. There was no inquiry into the absence of quality control or peer review of his conclusions. Reliability and accuracy were presumed once the Crown established his expertise. Such expertise was easily established based upon Smith’s position as Director of the Ontario Pediatric Forensic Pathology Unit at the prestigious Hospital For Sick Kids in Toronto. The admissibility of his evidence was guaranteed based upon the innumerable times he was accepted as an expert at trial. As a result, conviction was also virtually guaranteed.

There are many lessons to be learned both systemically, in terms of the role of the criminal justice system, and individually, in terms of the specific functions of the participants in that system. Justice Goudge counseled increased vigilance from all participants: be it the “gatekeepers” function of the Trial Judge or the vital role of defence counsel in understanding and applying the evidentiary rules. Cases such as the Supreme Court of Canada decision in Mohan and the Ontario Court of Appeal (leave to SCC refused) in Abbey, which set out the test to be applied in accepting expert evidence, must be required reading when dealing with any kind of expert evidence. There must be no fear in dealing with experts and no broad based acceptance of their expertise when a life is in jeopardy. Where an expert’s evidence is concerned, only evidence-based opinion should be admitted if an accused is truly to be tried in accordance with our fundamental values of fairness, impartiality, and justice.

Sadly, even with the knowledge of the past, the system is still open to failure. Yesterday, the Texas Court of Criminal Appeals set aside a murder conviction, which was based on faulty forensic opinion evidence. The frailties of the evidence had been uncovered by investigative reporting. The accused had been serving a 60-year prison sentence.

Hopefully, the implementation of the safeguards as outlined in this posting, and in the other recommendations found in the Goudge Report, will prevent any recurrence of these injustices and will provide, instead, a mechanism for a fair trial.

Whatcott In The Courts Again

Last Fall, I discussed the cases of William Whatcott in previous blog postings. I say cases, as William Whatcott is before the Courts in two different, yet related matters.

On October 12, 2011, the Supreme Court of Canada reserved decision on the Whatcott case, which raised the issue of the constitutionality of the hate speech section of the Saskatchewan Human Rights Code. Whatcott, a prolific pamphleteer, was found in violation of the Saskatchewan provisions for delivering his pamphlets at various homes in Regina and Saskatchewan. People complained about the pamphlets some of which were entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and "Sodomites In Our Public Schools." As a result, Whatcott was fined for violating s. 14(1)(b) of the Code on the basis the pamphlets “promotes hatred against individuals because of their sexual orientation.”

The Saskatchewan Court of Appeal overturned the Tribunal finding, but not on the basis of Whatcott's Charter claim. Justice Hunter, after analyzing the pamphlets and the freedom of expression protections found within the Saskatchewan Human Rights Code, namely s. 5 and s. 14(2), found the pamphlets were not hate speech under the Code. Although Justice Smith agreed with the analysis, she but did so mainly on the basis of the relationship between the hate speech provisions and the constitutional values of freedom of expression as entrenched in the Charter. The Saskatchewan Human Rights Tribunal appealed the decision to the Supreme Court of Canada.

The other case, presently in the news, relates to Whatcott's pamphleteering efforts in Alberta on the University of Calgary campus in 2008. At the time, Whatcott was banned from the property and was served with a trespass notice for being in violation. Alberta Provincial Court Judge Bascom stayed the proceedings on the rationale the notice violated s.2(b) of the Charter. The Crown has now appealed this decision, which will be heard on March 30, 2012 at the Alberta Court of Queen's Bench. 

Read my previous postings on the issue here:

The Road Taken By The Supreme Court of Canada

A Message of Tolerance

Blog Update: The Limits Of Expression

Law, Literature, And Inherit The Wind

Why Is This Still A Crime? Crime Comics and the Criminal Code

Today, in my criminal law class, we discussed what is a “crime.” We defined “crime” as any form of human behaviour designated by lawmakers as criminal and subject to penal sanctions.” This definition of crime is both narrow and broad: broad as any form of behaviour can be considered a crime, yet narrow as it is only those behaviours so designated by the law makers, which are considered crimes.

Let’s look at that premise more closely. Any behaviour, so designated, can be a crime. For example, opium was legal until the turn of the century when the 1908 Opium Act was enacted. On the other hand, coffee is legally consumed in Canada but was historically subject to bans and restrictions in many countries such as Turkey and pre-Revolutionary France.

Furthermore, no matter how morally repugnant certain behaviour may be, the conduct is only criminal if so designated. In other words, it is not a crime unless our government says so. Clearly then, criminal law is fluid: it changes over time in accordance with  society’s fundamental values.

And yet, there are crimes still found in our Criminal Code, which do not resonate with today’s values and leave us to wonder why the behaviour is still designated as criminal. Section 163(1)(b), which makes it illegal for anyone to make, print, publish, distribute, or sell a “crime comic,” is a case in point.

A crime comic, as defined under s.163(7), is a “magazine, periodical, or book that exclusively or substantially comprises matter depicting pictorially” the commission of crimes, either real or fictitious, or any events leading to the commission of a real or fictitious crime. Thus a crime comic, deemed illegal under the Criminal Code, can easily be that super hero comic book purchased at the corner store or that cool graphic novel on Louis Riel.

Where did this crime come from? In this instance, we can blame the United States. In the 1940s a genre of comic books known as “crime comics” appeared. In truth, some of the comics were in “bad taste” depicting gory scenes of violence, however, the bulk of the comics were inevitably the triumph of good over evil. Either way, the books did not, as suggested by the Senate Subcommittee on Juvenile Delinquency, promote or contribute to the commission of crimes by juveniles.

In fact, despite the very public contention of American psychologist Dr. Fredric Wertham that the crime comic books were connected to the increase in juvenile crimes, there was no scientific basis for this position. Unfortunately, by the time the true facts were exposed, the issue had become so political the government was moved to regulate the comic book industry. In Canada, the result was even more significant as the Criminal Code was amended in 1949 to add crime comics as an offence “tending to corrupt morals.”

In the 1950s, the offence was tested by a group of comic book vendors in Manitoba. Mr. Roher, the chosen offender, was convicted of selling a crime comic, specifically “No. 62, April, Dick Tracy.” The cover of the comic book is particularly gruesome as it depicts Dick Tracy floating in the water, near death, while a once masked villain shoots at him. Definitely a crime is being committed but we all know, Dick Tracy, the crime fighter will prevail. He even says so in the corner of the cover as he studies his radio watch, which cries out: "calling all crime stoppers." This fact, however, was meaningless in the eyes of the law as Mr. Roher was convicted of selling this crime comic.

In upholding the conviction in 1953, Chief Justice McPherson describes, in detail, the “bloodthirsty” events illustrated in the comic. According to McPherson C. J., “the legislature wished to enact laws to protect the children of this country from the evil effects of being subjected to publications dealing with crime.”

The Chief Justice also considered the defence available under the section, which is still preserved in the present day offence, known as the defence of the “public good” whereby:

No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

In dismissing comics as serving the public good, the Chief Justice commented on the defence as follows:

The only defence under this section I have ever heard suggested is that by reading these publications the child acquires a desire to read. To me it is a strange basis upon which to start child education and, logically considered, could be quite easily adapted to other phases of training; for instance, by starting children on "home-brew" they might become connoisseurs of fine liquors and whisky and eventually experiment with a drink of milk!

Clearly, the Chief Justice was not a fan of the funnies! Or was he really just a man of his times, immersed in the hysteria of the moment and in tune with the public fear caused by the increase in juvenile crimes? This may explain why the conviction was upheld and why the crime found its way into the Criminal Code, but it does not explain why this crime is still part of our criminal law.

Perhaps we could imagine an inappropriate comic, aimed at children, which we would not want published and sold but do we need the criminal law to regulate that scenario? Furthermore, as the section now reads, appropriate material could be subject to the offence, despite the defence of public good, such as the graphic novel by Chester Brown on Louis Riel or the Fantastic Four.

So, why this is still a crime is a valid question to ask and a valid question to keep asking as society changes and our laws do not. By questioning and asking “why,” we are ensuring that our laws reflect who we are as a society and if they do not, then it is incumbent upon our law makers to provide an acceptable answer.