Public Policy Reasons to Limit the Law

There is little reason to think that the criminal law plays any significant role in reducing the spread of HIV.  Despite claims to the contrary, applying criminal law to HIV risk behaviour has not been shown to reduce the spread of HIV by incapacitating or rehabilitating particular offenders, or by deterring others.  Indeed, what little evidence there is suggests the absence of any deterrent impact.  (Notwithstanding this, it appears to have been easily assumed by Cory J. in Cuerrier that the law plays such a role.)  Furthermore, the function of the criminal law as an HIV prevention tool is largely non-existent when applied to those whose use of condoms or whose low or undetectable viral load means they already pose little risk of transmission.

In contrast, there is a substantial body of research demonstrating the beneficial impact of HIV testing and other public health initiatives in modifying behaviour that risks transmitting HIV, making testing a centrepiece of national and international HIV strategies.  Promoting regular HIV testing, and hence earlier detection of infection and interventions to modify risk behaviour, is particularly important, given that it is in the early weeks following initial HIV infection that a person’s viral load tends to be highest and hence she or he is most infectious.  The more people engage in high-risk activity while unaware of their own HIV infection, the greater the damage to public health.  The Public Health Agency of Canada estimates that, as of the end of 2008, an estimated 26% of those living with HIV in Canada were unaware of their infection.

Therefore, to the extent that overly broad criminalization creates an additional disincentive to HIV testing — either directly because knowledge of HIV-positive status exposes a person to a greater risk of criminal prosecution for subsequent non-disclosure, or indirectly by creating further stigma surrounding HIV and people with HIV — it hinders HIV prevention.  At the time Cuerrier was decided in 1998, there was little evidence available in the literature on this point.

Now, however, there is some emerging data — including  research in Ontario — suggesting that there is indeed some such adverse impact, at least among some populations that are likely to be at higher risk of HIV infection.  A broad use of the criminal law also hinders open discussion with health professionals and counsellors of sexual practices and of challenges to disclosure, as such information could later be used in criminal investigations.  This undermines both HIV prevention efforts and care for people living with HIV.

Invasions of privacy and the stigmatizing effect of criminalization are other legitimate public policy considerations in circumscribing the use of the criminal law. Cases involving criminal charges against persons living with HIV garner considerable media attention, disproportionate given the small number of such cases overall (130 prosecutions to date) compared to the estimated 65,000 people living with HIV in Canada.  Long before any resolution at trial, police media advisories and media reports may reveal publicly an accused’s identity (including photograph) and HIV status, as well as the criminal allegations and details about his or her personal and sexual life.

Stigma also has adverse effects on the effective diagnosis and treatment of HIV among people living with it and on the further spread of HIV, including impeding testing, disclosure (including to sexual partners) and the adoption of protective measures.  As observed by the Crown’s medical expert at trial in Mabior: “The stigma has not gone, that’s for sure.  There remain disclosure issues.  I think it’s very hard for us sometimes to realize how difficult it is for people to tell other people that they have HIV.”  It may be instructive for the reader, or for a judge, to consider for a moment what would be involved in walking down the street wearing a t-shirt declaring that one is “HIV-positive,” or to contemplate revealing this fact to an intimate partner.

Consent and Its Retroactive Vitiation

If, as we argue, there are good reasons — based on science, existing jurisprudence, and broader public policy concerns — to limit the law as we have argued, what argument remains for extending the criminalization of people living with HIV as far as the Crown is proposing before the Supreme Court of Canada?

At the heart of these appeals lies the fundamental question — what constitutes  (aggravated) (sexual) assault?  Because the legal test articulated in Cuerrier is grounded in section 265(3)(c) of the Criminal Code — fraud vitiating consent — what the Court is in fact grappling with is how best to protect personal autonomy and physical integrity, in light of the complex and diverse real-world factors at play in human sexual relationships.

Violence against women generally, and sexual assault in particular, remains a persistent and deplorable reality in Canada.  And despite the 1983 revisions to the rape provisions of the Criminal Code — which were intended to provide greater justice for assaulted women by improving the rate of reporting, reducing the rates of attrition for these offences, and reduce prejudicial attitudes towards women that impaired the ability of the criminal justice system to respond effectively to violence against women — little improvement has been seen.

Assault laws and their enforcement therefore remain a critical concern of women’s rights and anti-violence advocates throughout Canada.  Furthermore, given the link between sexual violence and vulnerability to HIV, legal responses to sexual violence are also of critical importance to HIV prevention, care treatment, and support.

In light of this reality one must ask: why should the remote possibility of exposure to HIV be classified as the most serious of assaults?  The law is supposed to account for different degrees of severity.  It flies in the face of logic that a remote possibility of exposure to HIV during otherwise consensual intercourse would constitute an aggravated sexual assault while a rape would be treated as sexual assault simpliciter, if prosecuted at all.  This is demonstrative of the failure of the criminal justice system’s inability to deal with sexual violence.

In the cases at bar, the ability of the complaints to give genuine consent to sexual intercourse is being challenged.  As explained in R v Ewanchuk, [1999] 1 SCR 330, consent in Canadian law is purely subjective; consent is the state-of-mind of the complainant at the time of the sexual activity.  To be legally effective, consent must be freely given.  The law respects and protects sexual autonomy by making the actual subjective consent of a complainant determinative.  In light of the persistent inequalities and violence still facing women (and sexual minorities), preserving a strict standard of subjective consent is considered essential.

However, Parliament has defined a list of circumstances where even if the complainant did genuinely consent at the time of the sexual activity, or there is some doubt as to whether or not he or she consented, consent will be vitiated (Criminal Code, section 265.3).  The law’s willingness to vitiate consent on policy grounds has been described as “significantly limited” (R v Jobidon, [1991] 2 SCR 714), and rightly so.  Overriding a person’s freely given consent is not a step that should be taken lightly.  Judging the reasonableness of his or her decision to consent to sexual activity represents a momentous intrusion into his or her personal decision-making and invites the imposition of outside values.

It also undermines the ability the sexual partner (the accused) to rely on that consent.  Transforming a consensual sexual encounter into a sexual assault, a sexual partner into a sex offender, is certainly appropriate in certain circumstances but, as the majority of the Court pointed in Cuerrier (per Cory J.), it should not be undertaken too readily in light of the gravity of the consequences.  Not just any “if I had known” or “sober second thought” should suffice.

To be clear, HIV non-disclosure cases are not equivalent to other sexual assaults.  In HIV non-disclosure cases, both partners have consented to the sexual activity.  (If they have not, then HIV non-disclosure is not the crux of the issue — instead, whether there was actual subjective consent to the sexual encounter is at issue, which has nothing to do with HIV-positive status.)  Most HIV non-disclosure cases are not about a perpetrator asserting power over a complainant or objectifying the complainant for the perpetrator’s own sexual gratification.

Most of these cases are more appropriately seen as cases of “informational asymmetry” and the harm is not sexual in nature.  It should be remembered that the non-disclosure may result from a lack of power as opposed to an exercise of power, given the stigma surrounding HIV infection and the marginalized position of many people living with HIV — and in some cases (disproportionately women), the HIV-positive partner may also be in a position of dependence or vulnerability vis-à-vis the (ostensibly) HIV-negative partner.

In HIV non-disclosure cases, care must be taken to avoid slippage between the subjective standard of whether there was consent to the act in the first place, and the objective standard of determining whether the consent that was given at the time should be retroactively vitiated because of fraud.  Different policy concerns are at play.  Moreover, protecting the Ewanchuk standard and keeping sexual assault trials free of rape myths and gender stereotypes demands no less than such caution.

As Cory J. noted in Cuerrier (para 135), limitations on the concept of fraud as it applies to section 265(3)(c) are necessary or courts would be overwhelmed and convictions under the section would defy common sense.  Consent given without the benefit of “significant relevant factors” may be invalid, but how to delineate which factors are truly significant to consent has yet to be adequately resolved, hence the present appeals.

What makes HIV-positive status a “significant relevant factor,” such that not revealing one’s HIV-positive status to a sexual partner justifies invalidating consent and convicting the person living with HIV of a most serious assault?  In Cuerrier, Cory J. indicated that it was because of the “significant risk of serious bodily harm” and the need for a person to consent to such a risk over and above consenting to the sexual act.

In Mabior, the prosecution would have the “significant risk” standard removed or watered down so much as to require people living with HIV to disclose their status in virtually every circumstance, even in the absence of any appreciable risk of transmission based on uncontroverted science.  If we are truly to take seriously sexual autonomy and want to protect the subjective standard of consent, we must question whether invalidating consent in such circumstances is justifiable.

Do we, as a society, want consent freely given to be invalidated because of informational asymmetries of all sorts?  Do we accept that those who do not disclose to their sexual partners their marital status, their religion, or their long-term plans should be convicted of aggravated sexual assault?  To many people these pieces of information are also very important factors, and much like a sexual encounter where there is no appreciable risk of HIV transmission, they pose limited risk of physical harm.

In Mabior, the appellant Manitoba Prosecution Service takes the argument for full disclosure, irrespective of risk, one step further, claiming that by failing to disclose his HIV-positive status the accused deprived the complainants of any opportunity to protect themselves or to choose the level of risk they would accept.

Yet such a claim is clearly wrong.  While information regarding a partner’s health status may help a person decide whether and how to protect him/herself, and what sort of sexual activity to engage in, that information is certainly not a necessary condition to be able to make such decisions.  Millions of Canadians regularly can and do choose to use condoms, or in other ways engage in safer sex, without precise information regarding the possibility of acquiring a sexually transmitted infection from a partner.

Moreover, relying on a partner’s disclosure of an infection as a pre-requisite for protecting oneself from infection is a risky strategy that should not be encouraged, given that the Public Health Agency of Canada estimates that one-quarter of people who have HIV in Canada have not yet been diagnosed and the most infectious period has been shown to be in the early stages of infection when a person is least likely to have been diagnosed.

To assume that a person is incapable of making the decision to reduce his or her exposure to possible sexually transmitted infections and is completely dependent on the partner to inform him or her of the advisability of reducing risk is not only false, but it assumes all sexual partners are passive, lacking agency, and never equal and active participants in the sexual encounter.  Surely this is contrary to the objective of empowering every person to exercise their full sexual autonomy.  Surely it cuts away at the subjective consent standard and the objectives of ending gender inequality and violence against women.  In effect, it is a restatement of the gender stereotypes and rape myths that anti-violence advocates have worked so hard to eradicate from the law of assault.

Unfortunately, many women in our society are unable to make autonomous decisions about when to have sex, with whom, what type, and whether to use condoms.  The reasons for this are diverse, and include a lack of sexual health information, the pressure of cultural norms, living in a situation of dependence, lack of confidence and negotiation skills, and violence and coercion.

But knowledge of a sexual partner’s HIV status will not change any of these factors or make women in such circumstances any more autonomous.  The threat of prosecution for alleged non-disclosure may in fact be used as a tool of abuse against vulnerable women living with HIV, pushing them further away from autonomy, justice, dignity, and safety.

Conclusion

Because many would “want to know” if a sexual partner had HIV (or another sexually transmitted infection), it is tempting to think that the law should always oblige disclosure — and punish non-disclosure harshly.  But as the Law Commission of Canada recalled in its report on the role of the criminal law, Our Criminal Law (1992):

…we have to keep our heads, not hit out blindly, and not mistake activity for action.  We must avoid being misled by fears, frustrations or false expectations, however natural they may be…. The fact is, criminal law is a blunt and costly instrument… So criminal law must be an instrument of last resort.  It must be used as little as possible.  The message must not be diluted by overkill… Society’s ultimate weapon must stay sheathed as long as possible.  The watchword is restraint – restraint applying to the scope of the criminal law, to the meaning of criminal guilt, to the use of the criminal trial and to the criminal sentence.

Prejudice, misinformation, and fear are no legitimate basis for deploying the criminal law.  Rather, there is an urgent need for careful, reasoned limits that would permit the law to be applied in appropriate circumstances (e.g., cases of intentional transmission), while both respecting autonomy in sexual relationships and refraining from further stigmatizing people living with HIV and undermining effective prevention and treatment of the virus.

In R. v. Mabior, 2010 MBCA 93, and R. v. D.C., 2010 QCCA 2289, the Manitoba and Quebec Courts of Appeal, respectively, determined that a person living with HIV was not guilty of aggravated sexual assault for not having disclosed his or her status because, in certain circumstances, there was no “significant risk of serious bodily harm” — the threshold triggering the duty to disclose that was articulated by the majority of the Supreme Court of Canada some 14 years ago in R. v. Cuerrier, [1998] 2 SCR 371.

In each appeal, the Crown seeks to do away, in whole or in part, with this limitation on the law and to expand radically the ambit of the criminal law.  In contrast, the defence and numerous interveners, including the Canadian HIV/AIDS Legal Network (for whom we speak), have argued that, at a bare minimum, such a limitation must be retained and should be refined to achieve much-needed clarity about when the law may require disclosure upon pain of criminal penalty for not disclosing.  (The Court could also provide additional guidance that would ensure the heavy hand of the criminal law is further limited so as to be reserved for the most blameworthy cases.)

The Need for Both Clarity and Fairness

All parties agree that the lack of clarity in the Cuerrier standard has produced more than a decade of confusion and uncertainty.  This has been particularly the case for people living with HIV, but also for health professionals and community agencies working in the field of HIV prevention and care.  Furthermore, the unfairness that McLachlin J (as she then was) predicted would arise from the lack of clarity in the majority’s approach has been evident as well.  The same conduct, posing the same risk of harm (or lack thereof), has been prosecuted in one case or province but not another, and has resulted in both convictions and acquittals.

In one particularly extreme case, a man living with HIV was charged with aggravated sexual assault, and his identity repeatedly broadcast in the media, simply for allegedly performing oral sex a few times on his ex-partner — conduct that could not pose more than an infinitesimal risk of transmission at the very most.

Yet the prosecution’s proposed “solution” before the Supreme Court in the Mabior and D.C. appeals is to eliminate uncertainty by compounding the unfairness — that is, by doing away with the existing (imperfect) limitation on the criminal law in cases of HIV non-disclosure.  Indeed, the Manitoba Prosecution Service argues in Mabior that disclosure of HIV-positive status is required in all cases, and that the “fraud” of not disclosing should be treated in law the same as forced sex — regardless of the risk of harm.  Rather than basing the application of the criminal law on an objective assessment of whether a person poses a real risk of harm, the Crown asserts that no consent to a sexual encounter can be legally valid unless the HIV-positive partner has disclosed her or his status to the (ostensibly) HIV-negative partner.

Yet can it be justified to criminalize every sexually active person living with HIV for not claiming proactively this stigmatized identity even in cases where there is no appreciable risk (such as where measures have been taken to reduce the already small risk of transmission attendant upon a given act)?  As discussed further below the argument rests entirely upon a view of how “consent” should be defined in law that is troublingly simplistic and overbroad.

The prosecution maintains that the law does not single out people living with HIV — and to be fair, there is the potential for criminal prosecution for not disclosing other sexually transmitted infections.  This, if nothing else, should give some pause to those whose rush to judgment against people living with HIV might be rooted in part in an inability or unwillingness to consider such a rule of any potential relevance to their own circumstances.  Indeed, in the last few years, there have been a small handful of cases of people prosecuted for aggravated sexual assault for not disclosing viral hepatitis or, more recently, herpes — a legal development that ought to be of concern to the 20-25% of Canadians with the latter virus.

Yet the reality, confirmed by a survey of prosecutions to date, and evident time and again from a review of testimony and argument at trial, is that this application of the law is driven by an exaggerated sense of HIV risk above all else.  More than 130 people living with HIV in Canada have now faced some of the most serious charges in our Criminal Code, including in cases where there was no transmission or even a significant risk of transmission.  Such prosecutions continue to generate fear and stigmatization, directly affecting the lives of some of the most vulnerable in our communities and undermining broader efforts for HIV prevention and care.

It would be a mistake to cure uncertainty in the law by compounding its injustice.  And a sweeping, unjust application of the law is precisely what the prosecution in these appeals is urging — criminalize every person with HIV who does not disclose, regardless of whether there was a risk of transmission.  In our view, such a radical extension of the criminal law is unwarranted.  It ignores science, runs contrary to the bulk of the jurisprudence to date, and disregards sound public policy reasons to limit the law to the most blameworthy cases.

It is based on these very factors that interveners such as the Canadian HIV/AIDS Legal Network and AIDS organizations from across the country have urged the Court in these appeals to retain the significant risk test but to remove some of its current uncertainty by clearly articulating that there is no crime for HIV non-disclosure when:

• a person uses condoms for vaginal or anal sex;
• a person has a low or undetectable viral load at the time of the sexual encounter (unless the prosecution can nonetheless establish other factors beyond a reasonable doubt that would give rise to a “significant risk” of transmission); or
• a person engages in oral sex, with or without the use of a condom or other latex barrier.

In our submission, such clarifications of the current legal standard would accord with the science, would be consistent with the bulk of decided cases to date, and would best reflect public policy objectives of effectively responding to the HIV epidemic.

The Law Should Evolve With Science

In 1998, when Cuerrier was decided, on the basis of an evidentiary record dating back to 1992, the Supreme Court, concerned about at least some of the pitfalls of over-criminalization, chose to limit liability for non-disclosure of HIV (or other sexually transmitted infections) to those cases where there is a “significant risk of serious bodily harm.”  Now, with the benefit of two decades of further research, we have a greater appreciation that HIV is difficult to transmit and that, in many cases, the risk is insignificant.

For example, condom use reduces the risk of transmission by 80% according to the most commonly cited review of the evidence.  (Some other, more recent reviews put the figure even higher.)  Since 1996, there have also been dramatic breakthroughs in HIV treatment that also advance the cause of preventing HIV transmission.  As recognized by the Courts of Appeal below in Mabior and D.C., effective use of antiretroviral drugs, which is now the standard of care in high-income countries such as Canada, lowers the “viral load” of a person with HIV to extremely low or even “undetectable” levels.

Last year, results from the largest study to date found that getting people on treatment early reduced the risk of transmission by 96% (M.H. Cohen et al, “Prevention of HIV-1 Infection with Early Antiretroviral Therapy,” New England Journal of Medicine 2001; 365: 493-505).  Applying such a reduction to the standard estimated risk of HIV transmission associated with unprotected vaginal sex would mean an estimated per-act risk of transmission of 1 in 31,250 or 0.0032%.

We note such figures precisely because there has too often been an inflated perception of people living with HIV as posing a dire threat to the health and safety of others — and because there is a need for heightened vigilance in such circumstances against the possible misuse of the criminal law rooted in misinformation and fear.

Courts’ Attempts to Clarify the Cuerrier Standard

It is worth noting as well the prosecution argument in Mabior and D.C. that the criminal law regarding HIV non-disclosure cannot and should not be based on assessments of the risk of transmission.  Yet it should also be remembered that there are other provisions in our criminal law in which liability is indeed dependent on surpassing a particular numerical threshold representing a risk of harm — consider the treatment of driving under the influence as but one example.  And in all sorts of cases, criminal and otherwise, courts regularly assess expert scientific evidence as part of determining how and when to apply the law.

Indeed, numerous lower courts have, since Cuerrier, managed to interpret and apply the “significant risk” threshold in making determinations about the duty to disclose and criminal liability (or lack thereof) for not disclosing.  Until recently, the bulk of those cases have, for example, taken the correct view that the use of condom would preclude criminal liability for not disclosing.

Yet there remains a degree of uncertainty and inconsistency in the law that is troubling, given some of the prosecutions that have been witnessed — and some recent trial judgments that would dispense entirely with any assessment of the risk of harm.  The federal criminal law should be uniform across the country, it should provide clear advance notice as to what is prohibited and liability for the same conduct should not depend on whether one jury’s assessment of sex with condoms is or is not risky enough to be considered “significant.”

It is here that the Supreme Court has a key role to play in refining and clarifying the law, in accord with good science and with larger public policy objectives, so as to give clear guidance to lower courts that certain conduct — e.g., sex with condoms, or sex in circumstances where there is a low or undetectable viral load — falls below the criminal legal threshold of “significant” risk.

Richard Elliott and Alison Symington are with the Canadian HIV/AIDS Legal Network. Read more about the appellate level decisions in Mabior and D.C. here.

Jeffrey Allan Ashmore’s final attempt to have his first degree murder conviction overturned on Charter grounds failed on Thursday when he was denied leave to the Supreme Court of Canada. Ashmore was convicted at trial and appealed to the British Columbia Court of Appeal on the basis that his section 9 and section 10(b) rights were violated in the course of the police investigation.  The Court of Appeal upheld the conviction.

Ashmore was arrested by police in May 2006 in connection with the murder of Jeffrey Sabine.  At the time, he was informed of and exercised his right to counsel.  Following this consultation, he was shown a video of a confession he made in the course of a Mr. Big operation (an investigative technique in which an undercover police officer poses as the head of a ficticious criminal organization in order to obtain confessions).  This revelation led Ashmore to again confess and participate in a series of reenactments that essentially sealed his conviction.

At the Court of Appeal, Ashmore argued that his initial consultation with counsel was deficient, particularly in light of the subsequent evidence he was presented with, and that his detention in police lockup and during the reenactments was an arbitrary detention in violation of section 9 of the Charter.  These claims were of dubious merit, and the Court ruled that his initial consultation was sufficient (see R v Sinclair, 2010 SCC 35) and his detention was lawful because his choice to participate in reenactments was voluntary.

Interestingly, Ashmore raised little objection to the Mr. Big tactic, beyond arguing the fact that the evidence was prejudicial in that it gave the jury a biased view of his character.  This may be due to the fact that Canadian courts routinely uphold confessions obtained through the tactic, the only basis of exclusion being where the judge deems the “prejudicial effect outweighs its probative value.”

The Mr. Big technique is exclusive to Canada and Australia and particularly popular in British Columbia, where it originated in the early 1990s. However, it is not without controversy.  Critics cite the possibility of eliciting false confessions as reason for questioning it, while supporters argue that much of the criticism is misinformed.

Despite the controversy it generates (the technique is illegal in the US and UK) it has been subjected to little judicial scrutiny in Canada.  With critics and supporters so divided on the issue, a legislative response may be imminent if the judiciary chooses not to react one way or the other.

Clarifying the Common Law Test for Nuisance

The test for establishing a common law claim in nuisance is relatively straightforward, requiring an interference with an individual’s property that is both substantial and unreasonable. However, difficulty can arise in the application of this test when it comes to balancing the competing interests of property owners. This balancing act is more complicated when the interests of one property owner are of benefit to the public. In these circumstances, the question arises as to how much weight should be given to the social utility of a public project that interferes with the private property of another.

The Supreme Court of Canada will address this question in an appeal that was recently granted for Antrim Truck Centre Ltd. v Ontario Transportation, 2011 ONCA 419. This case arose from a dispute between the applicants, the owners of the truck stop, and the Ministry of Transportation (MOT) after it completed the construction of a new highway, which Antrim claimed “severely impeded” access to the truck stop. After experiencing a significant decline in business and re-locating the truck stop, Antrim filed an application with the Ontario Municipal Board (OMB) for business damages and the costs of relocation.

Under section 21 of Ontario’s Expropriations Act, landowners are entitled to compensation from an expropriating authority for “loss or damage caused by injurious affection.” To proceed with a claim for injurious affection, Atrim was required to prove that but for the statutory powers of the Province, it would have an actionable claim under common law. The OMB found that Atrim satisfied this requirement by establishing “a serious impairment in nuisance” and granted personal and business damages, though the costs for relocation were dismissed.

The MOT appealed the decision to the Ontario Divisional Court, which agreed with the board’s decision that the highway’s interference with Atrim’s property was “substantial” (2010 ONSC 304). To determine whether the interference was “unreasonable,” the court relied on the four factors set out in Tock v St. John’s Metropolitan Area Board, [1989] 2 SCR 1181, and 340909 Ontario Ltd. v Huron Steel Products (Windsor) Ltd., (1990), 73 O.R. (2d) 641 (S.C)., aff’d (1992), 10 O.R. (3d) 95 (C.A.):

1. the severity of the interference;
2. the character of the neighbourhood;
3. the utility of the defendant’s conduct; and
4. the plaintiff’s sensitivity.

Claiming that the Divisional Court erred in upholding the OMB’s decision, the MOT appealed again to the Ontario Court of Appeal. In that decision, Epstein JA considered whether a successful claim in nuisance requires a balancing of the competing interests of the landowners. After reviewing the relevant jurisprudence, Epstein JA concluded that “the important principles of tolerance and accommodation necessary to sustain harmony among neighbours in an increasingly dense and complex society require a balancing of the interests of both parties to determine whether it is appropriate for the court to intervene to preserve the right of either to use their property as they wish.”

Applying this reasoning to the facts, Epstein JA concluded that by relying almost exclusively on the issue of substantial interference, without giving much consideration to reasonableness, the divisional court had failed to balance the parties’ competing interests. While the board had considered the reasonableness of both parties’ uses, Epstein JA also concluded that it failed to give sufficient weight to the utility of the new highway, which was built to save lives. By weighing the interference with Atrim’s property against the reasonableness of the new highway, Epstein JA concluded that Atrim had failed to establish a claim in nuisance, and thus allowed the MOT’s appeal to proceed.

Epstein JA’s decision is significant because it suggests that an interference with private property should not give rise to an actionable claim in nuisance when there is a public interest at stake, even when the interference is found to be substantial. While a balancing of interests should play a role in determining the validity of a nuisance claim, the weight that courts give to interferences with social utility warrants a further clarification that the eventual SCC decision will ultimately provide.

The RMS Titanic struck an iceberg on her maiden voyage from England to New York City. The ship sank on April 15, 1912. History repeated itself nearly 100 years later when the Costa Concordia hit a rock off the Coast of Italy and sunk on January 13, 2012. As of January 30, 2012, 17 are dead, and 15 are still missing. Since the incident, charges and lawsuits have started to roll in: criminal against the captain, and financial against Carnival Corp., the ship owner and the world’s largest cruise operator.

Francesco Schettino, the ship’s captain, has been charged with multiple counts of manslaughter and abandoning ship before the evacuation of more than 4,200 passengers and crew was complete.

There is prospect for an extended legal battle, with lawyers from around the world launching class action and individual suits against Carnival Corp. Codacons, Italy’s best known consumer group, a German lawyer, and two American law firms are filing a class action suit in Miami, Florida with the intention of seeking $165,000 per passenger.

This figure contrasts Costa’s “hush money” offer. Costa is offering all passengers aboard the Concordia €11,000 (roughly $14,000) in compensation in return for an agreement to drop any legal action. The settlement also offered the standard reimbursement for the full cost of the cruise, related travel expenses and additional funds for medical expenses after the accident, lost baggage, and psychological trauma incurred. While some passengers are taking the money, eager to put this trauma behind them, others are offended by the meagre sum, having suffered a traumatic experience and losing priceless items when the ship sunk.

This offer brings up the tension between the advantages of settling and the gamble of taking on litigation. While the sum of damages the suit is anticipated to award is more than ten times that of Costa’s offer, victims would receive the money immediately. The trial may be as far as ten years away, with the possibility of appeal, and then further delays in receiving the damages award. Mr. Ramadori, a lawyer for Codacon warned, “Today’s proposal from Costa simply exploits the lengthy Italian justice system to scare people away from the class action” – though this may just be an attempt to pressure passengers to join the suit.

While the Titanic spurred a major motion picture and several Oscars, this disaster will likely bring many more lawsuits and a spectacle for the world.

A Different Kind of Roadblock: The Indian Act Today

There was great excitement in Aboriginal communities last Tuesday, January 24, when hopes of repealing the highly contentious Indian Act came to the forefront at the Crown-First Nations Gathering in Ottawa. Those feelings were quickly replaced with disappointment when Prime Minister Harper called for creative changes to the Indian Act, rather than taking steps to abolish it. Ironically, this year will mark the 200th anniversary of the War of 1812, when Aboriginals joined forces with the Crown.

The Indian Act was enacted in 1876 alongside the Constitution, granting jurisdiction of related matters to the federal government under section 91(24). The Act largely covers issues of status, the administration of land and various rights, and the fiduciary duty the Crown has toward Aboriginals. Since its adoption, amendments have been made to better reflect the needs and concerns of the community, particularly with Bill C-31 in 1985, which made significant changes to how the Act grants Indian status.

Recent problems like the Attawipiskat housing crisis have reinvigorated discussions on the Act, with many First Nations groups pointing to the need for change in their relationship with the Crown. National Chief of the Assembly of First Nations Shawn Atleo has commented that the Act is a “painful obstacle to re-establishing any meaningful partnership.” For now, that obstacle seems like it’s here to stay.

Cultural Pluralism? Not in Our House

A “heinous crime against humanity” is what the Canadian embassy of Afghanistan called the deaths of four women Monday morning. Mohammad Shafia, his wife Tooba Mohammad Yahya, and their son Hamed were each convicted of four counts of first degree murder at a Kingston, Ontario courthouse. Zainab, Sahar, and Geeti Shafia, as well as Rona Amir Mohammed were found dead last June, drowned in a Nissan in the Kingston Mills locks.

The prosecution successfully argued that the car had been pushed into the lock by one of the family members driving behind. The damage on both vehicles, as well as Google searches by Hamed on “how to kill,” and “bodies of water,” were used as corroborating evidence. Wiretaps revealed the father’s disdain towards the girls, with remarks about how their deaths preserved the family honour, and how he hoped the devil would defecate on each of their graves.

The defence argued that the parents were together in a hotel room. Mohammed admitted to a private investigator that he had, in fact, hit the car and heard a splash, but did not tell anyone at the time, and not for several months after either.

Many have identified the deaths as honour killings, a cultural justification for murder and disownership found in some areas of the Middle East and South and Central Asia. Such crimes are mostly perpetrated against women for bringing shame to the family, tribe, or wider community, by dressing provocatively, or engaging in sanctioned sexual behaviour. At stake in these situations is the preservation of a family’s position and moral standing in the respective society. Bloodshed is, often, what the family believes to be the only thing that will purify the pollution caused.

The family has already appealed the decision, but they haven’t yet gotten around to fixing an error of a mistaken date of birth on one of the gravestones. Who knows if they ever will.

While informer privilege is a near-absolute privilege that overrides the Crown’s duty of disclosure to the defence, does the scope of protection extend to preclude a defence investigation into the identity of the informer? This is the central issue in R. v. Barros, 2011 SCC 51, where the Supreme Court of Canada (SCC) held that the defence in a criminal proceeding is not bound by informer privilege, and the right to make full answer and defence is fundamental to criminal justice and is protected by s. 7 of the Canadian Charter of Rights and Freedoms.

The Facts

The identity of an informer is at the heart of this appeal. Based on the informer’s tip, Sergeant Brezinski of the Edmonton Police Service obtained and executed a search warrant at Qureshi’s home where cocaine and handguns were seized; as a result, drug trafficking and firearms offences were laid against Qureshi and others. Qureshi’s lawyer hired Barros, a retired 25-year veteran of the Edmonton Police Service who is now in business as a private investigator, to identify the informer.

During Barros’ investigation, he asked Qureshi’s associates to give him their cell phone numbers, and if they refused they would be subjected to polygraph examinations. Barros obtained their cell phone records to see if any of the associates had engaged in telephone calls with Sergeant Brezinski.

Later, Barros met with Sergeant Brezinski at a golf course and told him he had discovered the informer’s identity and that he had not exposed it to Qureshi’s lawyer “at this time”. Barros never explicitly asked Sergeant Brezinski to withdraw the charges against Qureshi, but Sergeant Brezinski perceived that Barros would expose the informant’s identity if the charges against Qureshi were not withdrawn.

Barros was charged with obstruction of justice for wilfully taking investigative steps to identify a confidential informer for the purpose of interfering with criminal proceedings against Qureshi, contrary to s. 139(2) of the Criminal Code of Canada. He was also charged with two counts of extortion under s. 346(1.1) of the Criminal Code of Canada for inducing Sergeant Brezinski to withdraw charges against Qureshi and asking Qureshi’s associates to provide their cellular phone numbers.

The Main Arguments

The Crown contended that Barros used threats or other unlawful means to discover the identity of the informer, and exploited this information as a bargaining chip to force the Crown to withdraw the charges against Qureshi.

Barros argued that informer privilege is not a bar to the accused’s right to make full answer and defence. He claimed that it is illogical to prohibit the defence from investigating about the informer because the innocence at stake exception requires the defence to produce evidence about the source in order to lead the Court to conclude that further disclosure is required to protect the innocent. In other words, if investigating about the confidential police source were a criminal act, there could be no innocence at stake exception.

Judicial History

A motion for directed verdict of acquittal is made when the Crown’s evidence, even if believed, is insufficient to establish the elements of the offence so that the accused must be acquitted. The trial judge found that Barros was entitled to investigate the informant’s identity. The trial judge also held that attempts to fetter such a defence investigation would violate the accused’s right to a full answer and defence as guaranteed by s. 7 of the Charter. Because there was no evidence against Barros that, if believed, would establish intent to obstruct justice, the trial judge directed a verdict of acquittal on the obstruction of justice charge.

The trial judge also acquitted Barros on both counts of extortion charges. With respect to the first extortion charge, the trial judge held that there was no threat on Barros’ part to reveal the identity of the informant to anyone, and that the Crown has failed to prove beyond a reasonable doubt that Barros threatened Sergeant Brezinski. The trial judge also acquitted Barros on the second extortion charge because the testimony of Qureshi’s associate (Mirza Kassam) was unreliable as it was full of leading questions and invited hearsay.

The Alberta Court of Appeal decision was a 2-1 split. The majority disagreed with the trial judge’s reasoning on all three counts of charges, while the dissent agreed with the trial judge decision in its entirety. The majority held that informer privilege prohibits the accused or anyone on his behalf from making efforts to discover the informer’s identity. The majority believed that, without a reasonable justification or excuse, investigating the identity of an informer prima facie amounts to obstruction of justice.

With respect to the extortion charges, the majority concluded that the trial judge misapprehended the evidence. The possibility of retribution against the informer by Qureshi constituted threatened harm, and Kassam’s testimony revealed that he thought of “dying” if he did not give Barros his phone number, which was not merely a “social pressure” as described by the trial judge.

Obstruction of Justice

Justice Binnie, penning the majority decision of the SCC, cautioned against extending the scope of informer privilege beyond what is necessary to achieve its purpose of protecting informers and encouraging informers to come forward. Because informer privilege can significantly restrict the ability of an accused to make full answer and defence, extending the privilege to prohibit investigation into informers’ identities simply “goes too far”. Justice Binnie further stated that, as long as the methods used are lawful, the defence is entitled to poke holes in the prosecution’s case. If the informer turned out to be non-existent, unreliable, or had participated in entrapment, discovering the informer’s identity may legitimately play a role in making out a full defence.

However, the defence investigation “must proceed in a responsible manner with due regard to the potential of obstructing justice.” While it was lawful for Barros to investigate, it was pursued by unlawful means or for an unlawful purpose. Justice Binnie held that the trial judge erred in characterizing Barros’ conduct as mere “preparation” instead of considering the entire chain of events. He concluded that, when the evidence is taken as a whole, if believed, it demonstrated an intent to obstruct unlawfully the trial against Qureshi. Thus, a new trial was ordered.

Extortion to Withdraw Charges against Qureshi

Justice Binnie found that the trial judge erred in applying the legal analysis on extortion. Even though Barros did not explicitly threaten the police to drop the charges against Qureshi, the law does not require the accused to act without subtlety. A veiled reference may constitute a threat if the recipient comprehended it as a threat of injury. The question is, as a matter of law, what would a reasonable person in the position of Sergeant Brezinski understand? Sergeant Brezinski testified that he understood that his refusal to drop the charges would put the informer’s identity at risk. Therefore, the trial judge erred in concluding that indirect suggestions by Barros were not capable, as a matter of law, of satisfying the threats element of extortion. A new trial was ordered.

Extortion to Obtain Telephone Numbers                        

The dispute between the Crown and the accused on the second extortion charge was whether Barros tried to obtain the phone numbers of Qureshi’s associates by “threats”. The only evidence available was the testimony given by Mirza Kassam, which was disbelieved by the trial judge. Therefore, there was no factual foundation that could found a conviction. Justice Binnie held that, albeit the trial judge’s flawed legal analysis on extortion, the Crown is not entitled to a retrial that had no impact on the outcome of the case. Thus, the verdict of acquittal rendered by the trial judge should stand.

Comments

Unlike other rules of evidence designed to obtain truth and fairness, informer privilege is largely driven by the policy reason that the protection of identity of informer is more important than the pursuit of truth. Courts should be cautious not to deprive informers of the privilege that the law accords to them. However, the SCC here explicitly allows the defence to fully investigate into the sources of the information obtained by the police. At first glance, this decision seems to weaken the promise of protecting informer’s identity, putting the already precarious informer at greater risk of danger. However, extending a duty of non-disclosure to the defence would unfairly constrain an accused’s right to fully prepare his or her case, contrary to s. 7 of the Charter, and potentially result in wrongful conviction. Occasionally, the information provided by the tipster is questionable because the informer is not under oath, not subject to cross-examination, and the judge and jury cannot observe the demeanour of the informer at trial to assess his or her credibility. Because the judiciary is institutionally incapable of probing the case and must rely on the facts put forward by the parties, the defence investigation becomes an important way to supply meaningful scrutiny to a claim based on information offered by an informer. The SCC is right to conclude that informer privilege does not foreclose lawful investigation by the defence to ascertain whether the informer is in fact a fabricated source, an agent of the state, or a material witness of the crime, which is not protected by informer privilege.

Prior to 2005, two defences were open to an accused charged with the possession of child pornography. The first applied if the accused raised a reasonable doubt as to the material’s artistic merit or as to its educational, scientific, or medical purpose. The second was a public good defence that mandated acquittal where the act alleged to constitute the offence served, and did not extend beyond what served, the public good.

After 2005, the public good defence was eliminated in the context of pornography possession. Section 163.1(6) was amended to provide a defence if the act that is alleged to constitute the offence: (1) has a legitimate purpose related to the administration of justice or to science, medicine, education, or art; and (2) does not pose undue risk of harm to persons under the age of 18.

In the end, the terms “legitimate purpose” and “undue harm” shaped the SCC’s reconceptualization of the available defences and fuelled its project to ground an essentially moral inquiry in objective, reasonable, and empirically verifiable standards.

Judicial History

At trial, the accused conceded that he was in possession of the relevant materials, which constituted child pornography, throughout the relevant period of time. He argued, however, that the purpose of his possession of the material was to create an artistic exhibition that would highlight the issue of child exploitation from the perspective of the child.

The trial judge found that the accused was entitled to rely on both incarnations of the defence and acquitted him on the basis that the pornographic material fell within the scope of the pre-2005 artistic defence. Although the pornographic material itself did not possess any artistic value (it seems as though the trial judge justified this conclusion on the basis that the original material was not created for an artistic purpose), it was nonetheless possessed for an artistic purpose (i.e. to create an art exhibit). For the trial judge, in other words, the artistic merit defence required a subjective conviction on the part of the accused that the material satisfied an artistic purpose. Once the credibility of the accused is established in this regard, so too is the defence.

The Ontario Court of Appeal (OCA), on the other hand, rejected this subjective approach. It found that the pre-2005 defence applies only where the child pornography itself had artistic merit and not simply when the accused had an artistic purpose for possessing it. The OCA held that the public good defence did not apply because the accused’s possession of the pornographic materials in this case extended beyond what served the public good. The post-2005 defence did not apply because the possession caused “undue harm,” understood as a negative effect that society would find “inappropriate, unjustifiable, excessive or unwarranted in the circumstances of the case.”  Consequently, the acquittal was set aside, a conviction substituted, and leave to appeal to the SCC guaranteed.

The SCC’s approach—The Objectification of Morality and the Dilution of the Defence

In the end, the SCC rejected the approaches of both lower courts. McLachlin and Charron JJ. problematicized the trial judge’s interpretation of “artistic merit” in the pre-2005 defense as capable of being spliced from the inherent quality of pornography. Further, they pointed to Parliament’s use of the term “legitimate” in qualifying “purpose” in the current version of the defence, signalling the need to add an objective, externally-verifiable component to the trial judge’s purely subjective analysis.

Further, while the OCA was correct in setting aside the acquittal, it nonetheless erred in two crucial respects. The first was its substitution of a conviction, which can only be done when the trial judge’s findings of fact support a conviction beyond a reasonable doubt. In other words, an appeal from acquittal is restricted to questions of law alone. Since the trial judge applied an incorrect analytic framework to the interpretation of both defences, it did not furnish the OCA with adequate facts on which to ground a conviction. Thus, the appropriate remedy (and the one ordered by the SCC) was a new trial.

The second error made by the OCA was its adoption of a community standard of tolerance test to determine if the risk of harm to children was “undue.” The SCC’s rejection of this approach may be oriented within a broader historical debate about the validity (and desirability) of Parliament enacting criminal laws on the basis of morality (see, for example R. v. Malmo-Levine, 2003 SCC 74). Essentially affirming the dangers of imposing the morality of the Clapham omnibus as the standard by which to measure “undue harm,” McLachlin and Charron JJ. cited R. v. Labaye, 2005 SCC 80, at para 66:

[O]ver time, courts increasingly came to realize that morals and taste were subjective, arbitrary and unworkable in the criminal context, and that a diverse society could function only with a generous measure of tolerance for minority mores and practices.

The SCC emphasized that the correct approach was to assess whether the physical and/or psychological harm is “objectively ascertainable.” In this regard, expert evidence may assist in identifying the connection between the impugned actions and harm caused. Despite the SCC’s purported goal of anchoring the harm caused by pornography in an objective analysis, the community morality standard does not disappear but rather simply gets pushed down below the surface.

The SCC’s distancing itself from the concurring opinion of LeBel J. (on behalf of himself and Fish J.) is telling in this regard. LeBel J. found that preventing the defence in s.163 from being rendered illusory in practice necessitates the theoretical splicing of the inherent nature of pornography (i.e. the “generic” harms associated with the possession of child pornography) from the harms that exceed this threshold and are specific to the circumstances of the offence.  McLachlin and Charron JJ. found that such a splicing, assuming it can be realistically drawn, would not serve any useful purpose.

In other words, the inherent harms of possession of child pornography (an offence that, as pointed out by LeBel J., could be committed by an individual entirely in private) could be sufficient to ground a finding that it causes “undue” harm to children. In practice, this conclusion may be tantamount to adopting a presumption that the inherent quality of pornography causes undue harm, despite the apparent intention of Parliament to protect its possession for “legitimate purposes.” The logical question to ask, then, is on what basis could this presumption be justified except on shared community understandings of morality? The SCC indirectly endorses the OCA’s community morals test at the same time as it rejects it.

In the criminal realm, it is inevitable that community values come into play in defining that which is illegal, that which is simply immoral, and that which is illegal precisely because it is immoral. In navigating the subjective/objective dialectic set up by juxtaposing the two lower courts’ decisions, the SCC grapples with the issue of how much weight is to be given to community values at the expense of individual good faith convictions in the artistic merit of their work. In other words, this is not really an inquiry into the objective harm caused by certain actions, verifiable by expert evidence.

Such an objective analysis hinges on the splicing of the inherent quality (and harm) of pornography from its effects in a particular case. Perhaps the majority is correct in pointing out that this is a futile exercise. But so is denying the persistent relevance of community morality in “undue harm” analysis.

Facts & Law

The accused, P, had been charged with assault and rape and was detained by police for interrogation. At the police station, P told police he had had an adverse reaction to a powdered substance on the night of the alleged sexual assault, and that a friend could confirm this. The accused was not given access to legal advice prior to or during the interview. Following up on P’s alibi, the police spoke to the friend, who confirmed P’s story, but also mentioned a conversation he had with P the following morning in which P described meeting a woman the previous night and having consensual sex with her.

The accused, relying on Cadder, argued that his rights under Article 6(3) would be contravened if the Crown were allowed to introduce the evidence from his friend as it was obtained, in this case, as a direct result of the counsel-less interrogation.

The relevant portions of Article 6 of the ECHR read as follows:

Right to a fair trial

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

…

(3) Everyone charged with a criminal offence has the following minimum rights:

…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

…

As noted above, Article 6(3)(c) has been interpreted to make admissions obtained from detainees without access to legal counsel inadmissible.

Holding

Affirming the ECtHR’s holding from Gafgen v Germany, the UKSC accepted that the Salduz principle extends beyond mere admissions made without access to legal advice. Nonetheless, noting the dominant principle in Scot’s law, the court held that the mere irregularity in the method in which the evidence was obtained did not make it inherently inadmissible. Ultimately, ruled the Court, the test is whether it would be fair to admit the evidence.

Arguing that, even post Gafgen, the exact scope of the exclusionary rule is unclear, the UKSC cited the law of England and Wales as well as Canadian jurisprudence to find the evidence admissible. Citing the Canadian case, Thomson Newspapers Ltd v Canada (Director of Investigation and Research)  [‘Thomson Newspapers’], the UKSC accepted the Supreme Court of Canada’s [‘SCC’] distinction in that case between evidence that would not have existed independently of the exercise of power to compel it and evidence derived from compelled testimony which would exist independently of the compelled testimony.

As such, the UKSC held that “there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under Article 6(1) and (3)(c) [of the ECHR].” The determinative factor in the case was that the evidence of P’s friend had an “independent life of its own.”

Analysis

P (Scotland) is noteworthy on a number of levels. First, the actual evidentiary issue at the forefront of the case is interesting, and has comparative relevance for most constitutional democracies. In this regard, the Court’s holding makes sense, notwithstanding conceptual problems regarding what constitutes an “independent life of its own.” On the facts of P (Scotland), it seems apparent that the police could have been reasonably expected to uncover the friend’s information in the course of their investigation; the evidence was not entirely contingent upon the interrogation of P. As such, we can be reasonably comfortable characterizing it as having a life of its own. Like all legal buzzwords (think “reasonable,” or “meaningful”), however, future cases may well turn on what constitutes an “independent life” given the specific facts of the case.

Second, and related, the comparative dimensions of the case are discussion-worthy. On the one hand, the interplay between the quasi-constitutional ECHR and Scots law as well as the references to other legal systems (namely Canadian and American, but also English and Welsh) speaks to the increasingly intertwined and globalized nature of constitutional law, at least in the Western world. The consideration and usage of foreign jurisprudence should be encouraged as, particularly in the case of Constitutional democratic states, it allows Courts to leverage the expertise and experiences of other justice systems. Conversely, references to other constitutional systems may be fraught with danger given that a country’s constitutional jurisprudence on a given matter will not exist within a vacuum, but in relation to its other constitutional protections. In this case, while Thomson Newspapers was accurately understood and applied by the UKSC, it cannot account for the reality that the Thomson Newspapers decision exists within the greater context of our ss. 1, 10(b), 11(d) and 24 jurisprudence. Divorcing the holding of the SCC in Thomson Newspapers from this reality – specifically, that police in Canada would have to provide an accused with the opportunity to access counsel upon detention pursuant to 10(b), whereas police in the UK are evidently not so obliged – evidences some of the limits of relying on comparative jurisprudence.

Police Powers Gone Out of Hand:

The sequence of events that took place in the Côté residence on the evening of July 22, 2006 is central to the case. The defense argues that a systematic violation of the accused’s Charter-protected rights took place in the span of almost an entire day: from 12:15am at night to 9:00pm the next evening.

At around 9:00pm, the accused, Armande Côté, phoned 911, alerting authorities that her husband had been injured. The attending physician at the hospital determined that the victim suffered from a head injury caused by a metal object, such as a bullet. The police, however, did not relay this information to the accused.

The police came to the residence later that night at around midnight. When the accused greeted them at the door, apparently asleep and wearing her pajamas, the police did not inform her of their reason for their visit. Instead, they lied to her; they told her that they were there to inspect the property to make sure it was safe. After being welcomed into the house, the police proceeded to inspect the interior and exterior of the property, including the surrounding areas and the gazebo, where the supposed injury had occurred. This would have fallen under a violation of Côté’s Section 8 right to be secure against unreasonable search or seizure. The police also asked the accused about firearms in the house, at which point she admitted to having two guns. She could only locate one at that time, though.

A few moments afterward, the police detained the accused without providing her any reason or reasons, thereby infringing her Section 9 right. Section 9 states that “everyone has the right not to be arbitrarily detained or imprisoned.” At the police station, the police refused to advise her of her right to have legal counsel. In doing so, the police also violated her Section 10(a) and 10(b) rights. It was only until 5:23am that the police gave the accused any information about her husband’s murder, namely that she was “an important witness” (translation). She was reassured that she was just a witness – not the prime suspect – even though the police had already determined that she was the prime suspect by then.

Lastly, the police subjected the accused to hours upon hours of interrogations, asking improper questions and soliciting involuntary statements. At many points in the night and the next day, the accused exhibited signs of anxiety and claustrophobia. She also claimed that she did not want to say any more. By then, the accused had consulted several lawyers, who advised her of her right to silence. Thus, her right to silence, a principle of fundamental justice under Section 7 of the Charter, was, according to the trial judge, completely brushed aside by the police time and time again (Hebert [1990 2 SCR 151]).

Lastly, the trial judge shed doubt as to the legitimacy of the search warrant. It was found that the investigators had misled judicial officers to obtain it, and had subsequently become evasive and unbelievable witnesses at trial.

Where the Court of Appeal Went Wrong:

The different outcomes at the trial level and the appellate level in Côté arise not from issues of law but mainly issues of fact. Explaining where the Court of Appeal head gone wrong, the Supreme Court notes: the appellate court “found that the police did not intend to act prejudicially nor had they deliberately acted in an abusive manner. This constitutes a re-characterization of the evidence that was not open to the Court of Appeal.” This mistake was made more acute by the fact that the Court of Appeal’s re-characterization of the evidence stood against the numerous findings of the trial judge. The trial judge had concluded that the police had, among other things, not acted in good faith, had demonstrated a continuous and systematic disregard for the appellant’s Charter-protected rights and had persisted in their misconduct by misleading a judicial officer in obtaining search warrants. The Supreme Court found there to be no valid reason to substitute the views of the appellate level court for that of the trial judge.

Exclusion of Evidence & the Grant Test

While the Crown did admit that the police overstepped their bounds and violated the accused’s constitutional rights in this case, it contended that only certain pieces of evidence needed to be excluded at trial, namely the statements made by the accused to the police. The exclusion of evidence is governed by section 24(2) of the Charter, which states: where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The standard of review of a trial judge’s s. 24(2) determination of what would bring the administration of justice into disrepute is set out by the Court in Grant and was recently affirmed in R. v. Beaulieu [2010 SCC 7]. Essentially, the Court faces the task of assessing whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute under three lines of inquiry: (1) the seriousness of state conduct; (2) the seriousness of the impact of the Charter violation on the Charter-protected interests of the accused; and (3) society’s interest in an adjudication on the merits. For the first line of inquiry, the Court must recognize that the more serious the state conduct constituting the Charter breach, the greater the need to exclude the evidence obtained. The second line is very similar. in that the more serious the Charter violation, the more likely the violation is going to bring the administration of justice into disrepute. Lastly, the Court must address the question of whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence. There is no “overarching rule” and none of these three factors can trump any other factor” (Grant, para. 86).

In the end, the Supreme Court of Canada was very confident of the trial judge’s conclusions. Applying the Grant test, the Court agreed with the trial judge that “both the police misconduct and its impact on the accused’s Charter-protected interests were very serious… The trial judge was obviously and justly concerned about the continuous, deliberate and flagrant breaches of the appellant’s Charter rights and this consideration played an important role in his balancing of the factors under s. 24(2).” Furthermore, Cromwell and the majority of the Court took the view that there was a strong societal interest in having a serious criminal charge determined on its merits. Without using those exact words, the Supreme Court of Canada essentially came to the same conclusion as the trial judge – that the admission of this evidence would bring the administration of justice into disrepute. It therefore concluded that there was no error in law in the trial judge’s decision and, accordingly, the appeal was set aside.

Grant, and then Côté:

While Côté may not set out a new test for the determination of whether evidence ought to be excluded in a case, it does significantly advance the jurisprudence in this area. In Grant, evidence at issue in the case of an s. 24(2) analysis is “derivative evidence,” which is defined as “physical evidence discovered as a result of an unlawfully obtained statement” (para. 116). The Court of Appeal ultimately found all of the physical evidence from the scene of the crime to be admissible because it would have been discovered without the appellant’s assistance; the Court of Appeal argued that the police could have obtained a search warrant anyway. The appellate-level court, therefore, interpreted the meaning of “derivative evidence” broadly in reaching their decision.

The Supreme Court of Canada, though not explicitly, also broadly interpreted “derivative evidence” in this case. While Grant held that only “derivative” evidence ought to be excluded, Côté seems to suggest that when the police’s actions are so egregious, even evidence that is not “physical evidence discovered as a result of an unlawfully obtained statement” ought to be taken out. Ultimately, the Supreme Court of Canada eliminated so much of the police’s evidence, such as the physical evidence discovered at the house when they did not have an official search warrant, that the Crown’s case could not possibly go forward. Without waving the flag of civil liberties, this case sets a welcome precedence for the protection of our Charter and constitutional rights.

The religious teachings he chooses to preach in this new life do not have broad appeal (there’s never a mention of, “In every thing give thanks” or “Judge not, that ye be not judged”  with proselytizers these days, which is a shame.)

For the past two decades, Whatcott has been protesting vigorously against what he perceives to be the dangers of homosexual activity (and abortion). Along the way, he has been getting intimately acquainted with our justice system.

He is now appearing before the Supreme Court of Canada to answer questions about some very controversial flyers he stuffed into the mailboxes of unsuspecting Saskatchewanites in ’01/’02, and continues to stuff the mailboxes of Canadians across the nation.

The SCC will decide if the flyers exposed gay people to hatred contrary to s. 14(1)(b) of the province’s Human Rights Code (the Code) and will likely rule on whether the section itself is overbroad, inappropriately limiting freedom of expression.

PART I: THE WHY OF WHATCOTT  & HOW WE GOT HERE

Whatcott exists in the outer-limits of the town of tolerance for religious expression in Canada. His opinions are offensive to many Canadians; his name comes up often on CanLii, and yes – all the results pertain to him, I checked. Because this is such an important case, and because it deserves close scrutiny, it comes in two parts. This part is the background to the Court of Appeal’s decision. The next section will take us there and beyond.

Skip this Section if You Live in Sask. and got a Flyer (Otherwise: read on)

In 2002, Saskatchewan’s Human Rights Tribunal slapped Whatcott with a $17,500 fine for distributing  “hundred of thousands” of flyers, which it ruled exposed people to hatred on the grounds of their sexual orientation.

The flyers express ideas better suited to reproduction than description (for instance in Flyer E, “Sodomites in our Public Schools”):

“If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”

and,

“Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children”

In some legal circles, this kind of talk is euphemistically called an “unpopular opinion.” Whatcott has many unpopular opinions, and he admits he is an unpopular person, but he doesn’t care about popularity: he cares about illegalizing sodomy (and abortion) in Canada, because he considers the practices to be contrary to his religion and degrading for the nation as a whole.

Other flyers (F and G) feature a reprint of a page from the classifieds section of Saskatchewan’s largest gay magazine, Perceptions, accompanied by handwritten notes, which alleged the language used indicates the magazine encourages pederasty.

Reproductions of the four flyers can be found right before the endnotes of the Court of Appeal’s decision. Go review them and judge for yourself. They’re not as graphic as some of Whatcott’s other work, but they were physically delivered to the mailboxes of hundreds of thousands of residents of Regina and Saskatoon.

They are the focus of this case – the Court of Appeal unanimously found that they do not expose homosexuals to hatred; therefore, these flyers were not held to be prohibited publications and should not have been censored by the Saskatchewan Human Rights Tribunal.

The Charging Legislation.: s. 14(1)(b) of Saskatchewan’s Human Rights Code (the Code).

Four people took it upon themselves to lodge complaints against Whatcott under Saskatchewan’s Human Rights legislation. The Code states:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation: …

(a) tending or likely to tend to deprive, abridge or otherwise restrict the           enjoyment by any person or class of persons, on the basis of a prohibited           ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground. {Relevant prohibited ground: “sexual orientation” s. 2(1)((m.01)(vi)}

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.

The Human Rights Tribunal Hears the Case

In 2005, the tribunal (chaired by Anil K. Pandila) heard the story of the beleaguered people of Saskatchewan’s metropolises opening their mailboxes to find the “Born Gay? No Way!” etc. literature.

Whatcott testified on his own behalf during the initial proceedings. Of the four complainants, two gave direct testimony, and two were represented only in the Agreed Statement of Facts.

That seem a bit like the human rights equivalent of “phoning it in”, and is unfortunate because it makes the Tribunal look a slightly less impressive in a due-process sort of way. Considering the gravitas of the rights at play here (expression, religion, equality) you would think this would be mentioned— it isn’t, so let’s leave it for now.

In addition to the complainants’ testimonies, the Commission called Gens Hellquist, a gay community leader and expert witness qualified to testify about homophobia and discrimination towards homosexuals. He gave evidence that this was “just another example of hate directed at the homosexual community.” He observed that the flyers portrayed gay men as sodomites and pedophiles who should not be allowed around children. He noted that he had received numerous phone calls from concerned citizens in Regina, Swift Current and Saskatoon, and that people had come to his office in tears after reading the flyers.

Whatcott called Rev. Irwin Pudrycki, an ordained minister of the Lutheran Church of Canada. He testified that while the church did not promote a position of hatred toward the homosexual community, it disapproved of homosexual sexual activity, and urged homosexuals to seek redemption from their sins. He testified that gay people should be discriminated against in certain sectors of employment based on their orientation. He felt that Whatcott was exposing a societal injustice— acceptance of homosexuality— and commended him for drawing attention to the “issue” of gay teachers in public schools.

Whatcott sourced his statistics (“Sodomites are 430 times more likely to acquire Aids [sic] and 3 times more likely to sexually abuse children!”) to a book entitled, “Homosexuality and the Politics of Truth” by Dr. Jeffery Satinover. The author is an American psychoanalyst, who believes that homosexuality can sometimes be “cured” through treatment. Armed with his religion and his research, Whatcott testified he believed his flyers to be “legal, truthful and helpful.”

He argues that the flyers were not hateful. In the alternative, any hatred expressed in the flyers is directed at the so-called sin (homosexual sex) and not the sinner (the homosexual). If this distinction seems a tad thin to you, you’re not alone. Does the law protect the attributes or activities that qualify a person for protection from overt expressions of detestation on that ground in first place, or does the Code just protect the person?

While most physical expressions of human sexuality are natural and normal and legal, some are generally frowned upon and others are illegal. Whatcott argues that he should be free to demonstrate against sexual conduct he disapproves of, especially regarding issues of Canada’s public policy regarding children and their education.

The Tribunal’s Ruling

The Tribunal was not at all impressed with Whatcott’s defence, finding that for some flyers he had “no hesitation in concluding that the material contained therein can objectively be viewed as exposing homosexuals to hatred and ridicule.”[emphasis added].

He relied on Owens v. Saskatchewan (Human Rights Commission) (Owens 2007), which was subsequently overturned (Owens 2010), to find that Whatcott’s intentions in distributing the material were irrelevant in the analysis. Looking at specific sentences within each of the four flyers, the Chair ruled that they exposed homosexuals to hatred and ridicule based on the prohibited ground of sexual orientation.

With respect to the validity of s.14(1)(b) (and whether or not human rights tribunals generally may deem published material “hate speech” – ban the expression and fine the expressor), the Tribunal adopted the Saskatchewan Court of Appeal’s application in Saskatchewan (Human Rights Commission) v Bell (1994) (Bell) of the free-speech stalwart Canada (Human Rights) v Taylor(1999) (Taylor).

In Taylor, a white supremacist challenged the capacity of s. 13(1) of the Canadian Human Rights Act (a provisions similar to s. 14(1)(b) of the Code) to silence his speech. The SCC held that controlling hate speech was within the purview of human rights legislation— the restrictive laws did violate s. 2(b) of the Charter, but were saved by s. 1.

The impugned speech had to rise to the level of “unusually strong and deep-felt emotions of detestation, calumny and vilification” in order to evade Constitutional scrutiny. In the case of Bell, a motorcycle store was selling stickers featuring racist caricatures stamped with the “not allowed” sign of a red circle with a cross through it.  In deciding whether the stickers were prohibited publications, the SKCA held that it was bound by Taylor and that s. 14(1) of the Code was a reasonable limit on the freedom of expression.

In Owens (2007), s 14(1)(b) in particular was held to be a reasonable limit on the right of freedom of expression and on the freedom of religion. It seemed obvious to the Tribunal that this material – these four flyers – caused enough injury on the self-respect of the complainants that one was awarded $2,500 and three others were awarded $5000 each. The person who got 50% of the other awards filed his complaint before amendments to the Code doubled the damages available, and all four were all given half the maximum amount provided for in the legislation.

Whatcott did not want to pay $17,500 and, most likely especially did not want to pay $5000 each to the two people who did not attend the proceeding to testify directly about the affront to their dignity.

Saskatchewan Court of Queen’s Bench Reluctantly Upholds the Decision (2007)

Whatcott appealed the Tribunal’s decision to the SKQB on the grounds of freedom of religion and freedom of expression, and further argued that the tribunal erred in its interpretation of the Code.

One party intervened – the Attorney General for Saskatchewan, who argued vigorously that s. 14(1)(b) was constitutionally valid and socially useful.

Kovach FJ noted that the particular sub-section of s.14 hadn’t been mentioned by the trier of fact at the Tribunal, but reasoned that it must be sub-section (b). He established that the standard of review of the Tribunal’s decision was correctness and accorded the original ruling no deference.

Two issues were addressed:

1)  Did the Tribunal err in law by concluding the flyers conveyed hatred or otherwise contravened s. 14(1)(b) of the Code?

2)  Does s. 14(1)(b) of the Code contravene the appellant’s freedom of religion pursuant to s. 2(a) of The Charter of Rights and Freedoms (the “Charter”)?

He found that the decision in Owens (2002) was authority for the proposition that s. 14(1)(b) was a reasonable limit on speech in situations where the “ridicule” “belittlement” or “affront to dignity” met the standard in Taylor of “deep felt emotions of detestation, calumny and vilification.”

The four flyers were summarized and judged as prohibited publications, on the grounds that they had improperly characterized homosexuals as pedophiles and molesters of children.

Kovach FJ also relied on Owens (2002) for the authority that s. 14(1)(b) passed constitutional scrutiny and decided that while it may encroach on the rights to freedom of religion, it was a reasonable limit on that right.  Whatcott appealed the decision, attracting new interveners, including the Canadian Constitution Foundation and the Canadian Civil Liberties Association, supporters of his escalating legal battle with a direct interest in its outcome.

Now, Whatcott’s battle had come to mean something more than a dispute between private parties – poised to become the new test for hate speech law, it could be the defining judgement on the topic of the past two decades.

To learn more, you’ll have to check back soon for Part II, entitled: SKCA Says, Gay Teachers in Public Schools? Debatable…

It was supposed to end in 2007, with Dr. Burkes pleading guilty to the criminal sale of a prescription for a controlled substance in Manhattan Criminal Court one day before the trial was scheduled to begin. The judge handed down a sentence of probation and community service.

Dr. Burkes wants to take it all back now: his good reputation, his apology and more importantly his guilty plea. Citing his attention deficit disorder, he is seeking to have his guilty plea thrown out on appeal.

The Attacks and the Affair

Despite his practice on East 56th Street, Dr. Burkes is better known as a consultant for the City; he was often called upon to identify corpses based on their dental records. In fact, Dr. Burkes and his team identified over 600 bodies after September 11, 2001. Then mayor, Rudy Giuliani, thanked Dr. Burkes personally for his tireless service.

It was around the same time that Dr. Burkes first met Herman. Working long hours and under insurmountable stress after September 11, 2001, Dr. Burkes took up Herman on her offer to have him sleep in her apartment, as opposed to his cot in the office. At the time, Herman was separated from her husband, but not divorced.

In an interview with the New York Times, the dentist admits that, “With the stress and everything, I was stupid.” He claims that the affair only lasted three months, after which they continued to be friends – and continued their doctor-patient relationship. Dr. Burkes wrote prescriptions for her, owing to the fact that she had a painful jaw condition. He insists that she was not addicted.

Five or so years later, Dr. Burkes was charged with writing prescriptions for painkillers to Herman, with whom he had had an affair. Some of the prescriptions for everything from Percocet to Vicodin were in other peoples’ names, including that of her sister. It was her sister who first notified the authorities.

A Plea of Guilty?

On the eve of his trial, Dr. Burkes entered a guilty plea to the criminal sale of a prescription for a controlled substance. He also issued an apology: “I am very, very sorry for what I have done… It was wrong, and it will never happen again.”

Last week, Dr. Burkes withdrew his guilty plea. “I want to clear my name,” he stated simply. Dr. Burkes is now asserting his innocence and appealing to have his sentence thrown out. So far, he has not been successful. His filed motions have so far been denied.

In his appeal, Dr. Burkes argues that he had received bad advice from his former lawyer. “I felt dominated by his will and I succumbed to, and accepted, his advice even though I felt otherwise,” he wrote in a court filing.

Perhaps most interesting is that Dr. Burkes blames his attention deficit disorder (ADD) for obstructing his decision-making process, especially under stressful circumstances. He and his wife had reconciled at around the time of the trial; the trial would have brought out unsavory and lurid details of his affair with Herman. The dentist submits a letter from his psychiatrist, who notes that his patient’s ADD “interferes with his ability to organize and categorize information prior to thinking about it.” It further notes that Dr. Burkes was in a state of “confusion, perplexity and overwhelming fear” on the day he entered his plea of guilty.

A Brief Overview of US Criminal Procedure:

In most jurisdictions in the United States, ninety percent of felons arraigned plead guilty or nolo contendere (no contest). A defendant who enters into a plea bargain waives three important constitutional rights:  the Fifth Amendment right against self-incrimination; the Sixth Amendment right to a criminal trial; and the Six Amendment right of a defendant to confront the witnesses against him or her.

That is why the rules of criminal procedure in the US – as in Canada – put up safeguards to ensure fairness for both the prosecution and the defense. In fact, plea bargains are intended for the “mutuality of advantage.” In Santobello v. New York, the US Supreme Court held that plea bargaining is “essential to the administration of justice” and “[p]roperly administered, it is to be encouraged” (Santobello v. New York, 404 US 257, 260 [1970]).

In the leading case of Brady v. United States, the US Supreme Court stipulated that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences” (Brady v. United States, 397 US 742, 748 [1970]). It goes so far as to state that the judge must accept a guilty plea only with an affirmative statement by a defendant, indicating that he/she has met the constitutional standard for waiver (Boykin v. Alabama, 395 US 238, 242 [1969]).

For example, the judge must explain the charges to which the defendant is pleading guilty and the possible criminal sentence. The judge is also required to explicate how the facts of defendant’s case fit the criminal charge to which the defendant is pleading guilty, so as to ensure that the defendant does not plead guilty to a charge that does not fit the facts of the case. As we all recall from our first year criminal law class, it is also important that the pleas are entered and negotiated voluntarily; in the words of section 11(b)(2) of the Federal Rules of Criminal Procedure, the plea must be “voluntary and not the result of force or threat or promises apart from a plea agreement.”

A Change of Heart

The Federal Rules of Criminal Procedure sets a low threshold for a defendant who wishes to withdraw a plea of guilty or nolo contendere after the court has accepted the plea but before it imposes sentence. The defendant must show that there is “just reason” for requesting the withdrawal (s. 11(d)). At any point before the sentencing, the criminal process is generally forgiving of changes of heart.

According to s. 11(e) of the same federal statute, the threshold is much higher once the sentence has already been handed down. The plea may be set aside only on direct appeal or collateral attack. At that time, the defendant is required to point out a “manifest injustice” that requires correction in order to be granted the withdrawal of the plea.

Attention Deficit Disorder, a “Manifest Injustice?”

One reason that this case is making headlines is that a successful appeal would shed new light on what constitutes a “manifest injustice.” It would not come as a surprise if the court were particularly sensitive to the context of the case – namely, the defendant’s emotional susceptibility around the time of September 11, 2001. Dr. Burkes was not arraigned until 2006, however. Thus, it is unlikely that the court will accept his argument that he was under “pressure” on the day of his trial and that it was this stress that prompted him to enter his plea. In one case from Ohio, the judge stated rather tartly, “When one’s freedom is at risk, one should not have a happy-go-lucky attitude” (Ohio v. Wangul, 322010 Ohio [2004]).

To make the case for his mental condition, Dr. Burkes and his legal team would likely turn to case law, such as Brady v. United States. In that case, it was held that, in addition to voluntariness, the defendant’s plea must be “knowing” and “intelligent,” “done with sufficient awareness of the relevant circumstances and likely consequences.” The affidavit from the psychiatrist seems to suggest that Dr. Burkes’ ADD prevented him from making “knowing” and “intelligent” decisions, as his mental condition “interfere[d] with his ability to organize and categorize information prior to thinking about it.”

It may well be that his ADD impaired his decision-making process and made his arraignment even more psychologically taxing. The prosecution, on the other hand, argues that the plea did not arise from a one-time meeting, but was rather “the result of lengthy negotiations and was not the product of duress.”

One way that Dr. Burkes could overcome this challenge is by proving that his ADD constitutes a day-to-day struggle. He would have to underline the persistence and severity of this disorder. This does not seem like a fruitful position to take, though. Dr. Burkes must be of above-average intelligence, including emotional intelligence, to do what is expected of him as a dental surgeon. His job places him in stressful situations all the time. If he was able to perform his demanding job after September 11, including the identification of over 600 corpses, the court is not likely to accept that his mental condition interfered so strongly with his plea-bargaining.