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Bench Press 39-2: Reining on the Parade

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Bench PressThe Calgary Stampede Authority and the Street Church Evangelism Ministries International Foundation (Street Church) have been clashing for years over the Church’s participation in the Calgary Stampede parade. Things came to a head in 2012. The City of Calgary passed an amendment to its Traffic Bylaw stating that “a person must not join or otherwise interfere with the parade or special roadway event without the permission of the permit holder.” Nevertheless, that July, the Street Church showed up, 40-persons strong, dressed in medieval costumes and bearing shields spelling out “Jesus”, and inserted themselves into the very beginning of the parade.  Four members of the Church were charged under the bylaw.  Judge Tyndale of the Alberta Provincial Court ruled:

  • The traffic bylaw amendment was within the authority of the City of Calgary to pass;
  • The bylaw was reasonable in its scope because of the pressing and substantial need to protect the safety of participants in the parade, citizens watching, and the calculation of required support services from the police, fire department and EMS, among others;
  • The amendment violated the accused persons’ Charter right to freedom of expression, but was a limitation that was reasonable and justified in a free and democratic society;
  • The defendants were guilty of violating the bylaw.

R v. Pawlowski, 2014 ABPC 126 (CanLII)

 

Bench Press 39-2: Who Calls the Shots on Treatment Orders?

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Bench PressA judge issued a treatment order for an accused in a psychotic state. The Crown indicated that a bed in one hospital would be available in six days.  The judge ordered treatment “forthwith” at another hospital. Court services delivered the accused to the first hospital and left him in the hallway.  Both hospitals appealed, arguing that they had not consented to the treatment order. The Criminal Code states that no treatment disposition can be made without the consent of the person in charge of the hospital or the person assigned responsibility for the patient’s treatment.  The question before the Supreme Court of Canada was the interpretation of this consent requirement.

The Supreme Court of Canada was uncharacteristically divided on this case.  A majority of five judges ruled that a hospital or person in charge of treatment must consent to all of the terms of the order, and if there is no consent, the order cannot be made. They stated that timing (i.e. a six-day delay) must be included when assessing consent. They wrote “The ability of the hospital to administer the suitable treatment is inextricably linked to whether it has the facilities and personnel available to do so. Timing is therefore an essential element of suitability and not distinct from it.” However, the majority also ruled that if the accused’s s. 7 Charter right to life, liberty and security of the person was threatened, then a court can consider an order for immediate treatment.

The minority of four judges wrote: “…it is clear that hospital consent is not required to all of the terms and conditions of the treatment order. The hospital’s consent is required only to the treatment itself.  Bed shortages and patient wait lists do not permit a hospital to refuse, or defer, consent. Consent may be withheld only for medical reasons and cannot be withheld on the basis of an efficient management of hospital resources.”

R v. Conception, 2014 SCC 60

Bench Press 39-1: Records from Residential Schools

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Bench PressAn Ontario Superior Court of Justice judge has ruled on the question of what should happen to the historical records created by the Truth and Reconciliation Commission that examined the Indian Residential Schools. The Chief Adjudicator for the Independent Assessment Process, which looked at compensation for wrongful acts suffered by students at the schools, wanted the documents destroyed. The Truth and Reconciliation Commission wanted the documents, which it regards as an irreplaceable historical record, to be archived at Library and Archives Canada.  Justice Perell began his judgment by asking “Can and should this court order that documents that contain information about what happened at the Indian Residential Schools be destroyed? My answer to this question is: yes, but only after a 15-year retention period, during which the survivors of the Indian Residential Schools may choose to spare some of their documents from destruction and instead have the documents with redactions to protect the personal information of others transferred to the National Research Centre for Truth and Reconciliation.” He ordered that a notice program must be set up to inform claimants about the archiving process if they consent.  He noted that “It is the survivor’s story to tell or not tell and it is the survivor’s individual decision that must be respected.”

Fontaine v. Canada (Attorney General), 2014 ONSC 4585 (CanLII)

Truth in Sentencing Act Fails Again

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Bench PressFor the second time this year, courts have found fatal flaws in sections of the federal Truth in Sentencing Act.  In April the Supreme Court of Canada ruled that judges could give 1.5 days credit for every day an offender spends in pre-trial custody when determining a sentence, despite the Act’s requirement that only one day credit could be given.  Now, the Ontario Court of Appeal has ruled another section of the Act violates s. 7 of the Charter of Rights. Section 719.(3.1) holds that a person who is denied bail primarily because of a previous conviction is ineligible for enhanced credit for time in custody prior to being sentenced. Justice Strathy of the Ontario Court of Appeal noted that identically-placed accused who committed exactly the same crime and have the same criminal record as another accused but was denied bail,  could serve up to an additional 12 month in custody.  An effect of this, he wrote, “…will be that the most vulnerable members of society – the poor, those without a support network and Aboriginal people – may be reluctant to exercise their bail rights out of concern that the denial of their bail will result….in a greater proportion of their sentence being served in custody.”  He further stated “…the bail process and the considerations that go into granting or denying bail, are markedly different from the sentencing process…Whether or not an offender was released on bail is entirely irrelevant to the determination of a fit sentence. An offender denied bail is entitled to the same sentence as an equally placed offender who has been released on bail. ”

R. v. Safarzadeh-Markhali, 2014 ONCA 627 (CanLII)

 

Bench Press 39-1: The Facebook Factor

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Bench PressA Nova Scotia judge has ruled that a plaintiff’s Facebook usage history data can be accessed by a lawyer defending a personal injury claim.  The lawyer was seeking the data under the disclosure of documents rule in the Nova Scotia Civil Procedure Rules.  The Plaintiff was alleging that her ability to concentrate was diminished by her injuries, limiting the amount of time she could spend on websites like Facebook.  She opposed the application to produce, arguing that her Facebook usage history was not relevant.  The judge ruled “I am satisfied that the Facebook usage data requested by the defendants is relevant to whether Ms Conrad’s injuries have affected her ability to concentrate and the information should be produced.”

Usage history contains a vast amount of information about everything the user has done on Facebook, including posts, uploaded pictures and videos, messages sent, ads viewed, and events attended.  At a seminar discussing this case, Alberta lawyer Kevin Feth commented that lawyers must have” at least a functioning understanding” of social media networks because they contain” a treasure trove” of information for litigation and other legal proceedings. He added “When in doubt about emerging social media, consult a teenager”.

Conrod v. Caverley, 2014 NSSC 35 (CanLII)

 

Bench Press 38-6: Limits to “Mr. Big” Stings

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Bench PressPolice in Newfoundland suspected that Nelson Hart deliberately drowned his twin daughters but had no proof.  They began an elaborate hoax to recruit Mr. Hart into a fictitious crime ring. After about 15 months of activity, it culminated in a meeting with “Mr. Big” who was presented as the head of the crime ring.  Mr. Big demanded to know the truth about the twins’ death and Mr. Hart confessed to having murdered them. He was immediately arrested. He was convicted at trial but the Court of Appeal ordered a new trial.  The Supreme Court of Canada heard an appeal from Mr. Hart. The Court noted that the Mr. Big technique is a Canadian invention and by 2008 had been used over 350 times. The Court further noted that use of this technique can lead to unreliable confessions and wrongful convictions, which the Court called “a blight on our justice system.”  It concluded that the law as it presently stands provides insufficient protection to accused persons who confess during Mr. Big operations.  The Court set out a two-pronged response:

1.  A new common law rule of evidence that states that any confession made under a Mr. Big operation is presumed to be inadmissible until the Crown proves, on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect.  Probative value is a function of reliability based on the circumstances of the confession.  The circumstances could include:

  • the length of the operation;
  • the number of interactions between the police and the accused;
  • the nature of the relationship between the police and the accused;
  •  the nature and extent of inducements offered;
  • the presence of any threats;
  • the conduct of the interrogation itself; and
  • the personality of the accused, including age, sophistication and mental health.

2.  Confessions of this nature should be scrutinized by the doctrine of abuse of process, which is intended to guard against state misconduct that threatens the integrity of the justice system and the fairness of trials.

In this case, the Supreme Court decided that the Crown had not met the requirement of proving that the probative value of Mr. Hart’s confession outweighed its prejudicial effect. It stated: “Put simply, these confessions are not worth the risk they pose. It would be unsafe to rest a conviction on this evidence.”  It excluded Mr Hart’s confessions from evidence but left it up to the Crown to decide how to proceed next. Several days after the Court’s decision the Director of Public Prosecutions announced that it would not proceed with a new trial and Mr. Hart would be set free.

R. v. Hart, 2014 SCC 52 (CanLII)

 

Bench Press 38-6: A Bride’s Worst Nightmare!

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Bench PressMelanie Johnson arranged for a Calgary designer and tailor to make four bridesmaid dresses, a flower girl’s dress and a wedding veil for her October 2011 wedding, and to make alterations to her wedding dress.  As the wedding approached, the emails and text messages began to fly.  The bride received her wedding dress two days before the wedding, but the bridesmaids dresses were still not complete. When she tried on her dress the day before the wedding, she was horrified to find that it didn’t fit, was wrinkled and bunched, and had visible seam marks and loose threads.  The bridesmaid dresses arrived the morning of the wedding.  Ms Johnson testified that she did not have time for her hair and makeup appointments the morning of the wedding, the photographer could not take photos of the wedding party preparing, and the ceremony started 45 minutes late.  She sued the tailor in Small Claims Court, claiming the total cost of her gown, expenses associated with all the last minute arrangements and mental distress.  Judge McCorquodale agreed that the defendant did not perform his duties in a careful and workmanlike manner and in a timely fashion. He awarded Ms Johnson $500 for the cost of her gown, ruling that while the gown was obviously deficient, it was wearable and she did wear it.  He also accepted her claim for mental distress, awarding her $1000 for “the stress, disappointment, inconvenience, upset and frustration caused by the Defendant.”

Johnson v. Barry, 2012 ABPC 359

Bench Press 38-6: Court Decision an “Earthquake”

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Bench PressBoth the land and the legal landscape underwent a transformation recently as a result of a Supreme Court of Canada decision.  The Court ruled for the first time that an Aboriginal nation has title to a remote piece of beautiful land in British Columbia.  The Court wrote: “The nature of Aboriginal Title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the use and the enjoyment of the lands for future generations”.  The Court set out what governments and other potential users must do in their dealings with First Nations. Governments are already obliged to consult in good faith with Aboriginal groups asserting title about proposed uses, and accommodate their interests.  Now, governments must also justify any incursions into Aboriginal land on the basis of compelling and substantial public interest and be consistent with the Crown’s fiduciary duty to the Aboriginal group.  The government’s objective must go no further than necessary to achieve its goal and the benefits that flow from the incursion must not outweigh any harm to Aboriginal interests. The implications of the decision are profound, and will certainly affect the Northern Gateway Pipeline project currently proposed for Alberta and British Columbia, along with many other resource development projects.  Governments and businesses will have to enter into substantial and meaningful discussions and negotiations with Aboriginal groups about future uses of land over which they claim title.  It can also be expected that many more Aboriginal groups will come forward with land claims, and the negotiation of treaties between Aboriginal peoples and the Government of British Columbia, which have been stalled for over 20 years, will take on a new urgency.

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

 

Bench Press 38-5: Habeas Corpus in Modern Times

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Bench PressThe Supreme Court of Canada has ruled unanimously in favour of a federal penitentiary prisoner who challenged a prison warden’s decision to transfer him from medium to maximum security. Gurkipal Khela used the ancient writ of Habeas Corpus: the right to go before a court to challenge his or her detention.  The Supreme Court stated that, to be lawful, such a transfer decision must be reasonable, justifiable, transparent and intelligible.  The reasons for and a record of the decision must support the conclusion.  It wrote: “A decision will be unreasonable and, and therefore, unlawful, if an inmate’s liberty interests are sacrificed absent any evidence or on the basis of unreliable or irrelevant evidence, or evidence that cannot support the conclusion.”  In this case, the Court found that the warden did not disclose all of her information to the prisoner and did not give him an adequate summary of the missing information, as she was required to do under the Corrections and Conditional Release Act.  Her decision was therefore procedurally unfair, and the Court granted Mr. Khela’s application. His victory was short-lived however; his classification was later changed, his appeal of that decision was unsuccessful and he was transferred back to a maximum security institution.

Mission Institution v. Khela, 2014 SCC 24 (CanLII)

 

Bench Press 38-5: Shakespeare in Court

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Bench PressAn Ottawa judge quoted Shakespeare when sentencing a 69-year-old sex offender recently.  The offender had assaulted his neighbour in her home after taking her out for a birthday dinner.  The Judge referenced Act 1 Scene VII of MacBeth: “He’s here in double trust. First, I am his kinsman and his subject, strong both against the deed: then, as his host, who should against his murderer shut the door, not bear the knife himself.”  Justice Gilles Renaud translated that to mean in modern language: if someone trusts you and invites you into their home, you don’t assault them.  The offender has limited intelligence and some mental problems, but the Judge ruled that prison time was necessary and sentenced him to six months in jail and 3 year’s probation.

Citation not available.

 

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