Tuesday, February 16, 2010

Ubi jus ibi remedium

The recent Supreme Court case of Canada (Prime Minister) v. Khadr, 2010 SCC 3 (CanLII)  is but another dilemma of recognizing rights under the Canadian Charter of Rights and Freedoms.

The result in this case is interesting when we think about the common law principle that says for every right there must be a remedy, in Latin, Ubi jus ibi remedium.  The Charter includes its own statement about this:

Enforcement

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), 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 headnote in Canada (Prime Minister) v. Khadr, outlines these facts:
K, a Canadian, has been detained by the U.S. military at Guantanamo Bay, Cuba, since 2002, when he was a minor.  In 2004, he was charged with war crimes, but the U.S. trial is still pending.  In 2003, agents from two Canadian intelligence services, CSIS and DFAIT, questioned K on matters connected to the charges pending against him, and shared the product of these interviews with U.S. authorities.  In 2004, a DFAIT official interviewed K again, with knowledge that he had been subjected by U.S. authorities to a sleep deprivation technique, known as the “frequent flyer program”, to make him less resistant to interrogation.  In 2008, in Khadr v. Canada (“Khadr 2008”), this Court held that the regime in place at Guantanamo Bay constituted a clear violation of Canada’s international human rights obligations, and, under s. 7 of the Canadian Charter of Rights and Freedoms, ordered the Canadian government to disclose to K the transcripts of the interviews he had given to CSIS and DFAIT, which it did.  After repeated requests by K that the Canadian government seek his repatriation, the Prime Minister announced his decision not to do so.  K then applied to the Federal Court for judicial review, alleging that the decision violated his rights under s. 7 of the Charter.  The Federal Court held that under the special circumstances of this case, Canada had a duty to protect K under s. 7 of the Charter and ordered the government to request his repatriation.  The Federal Court of Appeal upheld the order, but stated that the s. 7 breach arose from the interrogation conducted in 2004 with the knowledge that K had been subjected to the “frequent flyer program”.
The court concluded that while Khadr's rights were violated, in this case, he was not entitled to the remedy of requiring the government to take action on his behalf.  The problem for Khadr is not very different from that of others whose rights are violated, but who have no effective remedy. 

For the criminal defendant this situation can be played out in two or three different ways.  Here is one example that I hear about frequently from my clients.  Upon arrest, a person is suppose to be informed of what he or she is being arrested for, and given notice that they are entitled to contact counsel and be afforded the opportunity to contact counsel.  I hear the complaint that "they didn't read me my rights" often enough to accept that these claims are usually true.  However, what I usually have to tell these clients is that the violation gets them nothing.  The fact is that the hypothetically guilty person can usually only beat a charge if he or she can keep critical evidence from being admitted.  Thus if all the evidence that is needed for the prosecution arises before a person's rights are violated or the evidence is gathered independently of any rights violation, the defendant gets no benefit from the violation in his or criminal trial.

Moreever, even if a court finds that a person's rights were violated, in Canada, that does not lead to an automatic exclusion of evidence.  In that instance, a court must balance competing interests.  If a court finds that excluding the evidence would bring the administration of justice into disrepute, it must admit the evidence nonetheless.  This is the test required under s. 24(2) of the Charter. 

Exclusion of evidence is not the only remedy available however.  Khadr was seeking a remedy under s. 24(1).  What he was asking for is not the typical relief sought under that provision.  The more typical relief sought is the remedy of a stay of proceedings in a criminal case, the equivalent of an acquittal.  The remedy is a stay can  arise in a variety of circumstances.  This will happen, for instance, if there is an unacceptable delay in the prosecution of the case, or where important evidence is destroyed or even where the defendant's personal integrity is severely violated at the time of his or her arrest.  However, in these circumstances, it is just any breach that will result in a stay of proceedings.  The breach must be serious enough that the only fair way for a court to provide the appropriate relief is to put a halt to the case.

It is still always the case that there is a remedy.  If no other remedy is available, it is probable the person whose rights were violated is entitled to damages.  The damages however do not have to be large and as most breaches would probably not lead to large awards and because lawyers don't advise clients to seek damages and because clients don't ask lawyers about that remedy, the reality is lawsuits for Charter breaches just don't generally happen. 

The story hit the news after the case was decided that Khadr's lawyers were seeking $10 million damages against the government.  Actually, they were looking to increase the amount they previously claimed.  He will probable get some substantial award, whether it is one that is settled or made by a court.

The lesson in all this is that there will always be a remedy available, just not necessarily the remedy you want or the one worth pursuing.

Friday, February 5, 2010

Offsetting a prosecutor's discretion

It is now Friday, and fifth day I have been working on this piece at the one of the courthouse law library computers.  However, my time here has been short.

As long as I have been practicing criminal law, I am always surprised by the variety of situations that I encounter.  While there is are typical client situations, legal questions, and practical problems that occur regularly, there is always something new, a new circumstance or new idea.

Here is something of a new idea that came to me recently.  It has to do with a prosecutor's choice to proceed by indictment instead of summary conviction.   In Canadian criminal law, most offence sections are hybrid: a prosecutor may elect to proceed by summary conviction or by indictment.  When the election is summary, the maximum penalty is usually significantly shorter.  One other benefit to a summary election to the defendant is the waiting period to apply for a pardon is three years, instead of five.  See Classification of Offences.

Most hybrid cases proceed by summary conviction, not indictment.  There are times, when an indictable election is required.  First, prosecutors will make such election when the six month limitation period has expired.  In those situations, my philosphy is to offer to waive the limitation period.  Second, there will usually be an election by indictment when a number of charges are bundled together and at least one of them is purely indictable.  If the case ends up being resolved by a plea to one or more of the lesser charges, I would also ask the prosecutor to change his or her election.  Finally, it is frequently the case where an indictable election is appropriate simply because of the seriousness of the offence or because the offender has a long record.

In the case I have before the provincial court, the prosecutor has insisted on proceedind by indictment.  He said he was doing so for the sake of having the remedy of a longer mandatory weapons prohibition.  The prosecutor is not asking for jail, but even if he were, the jail time would certainly be less than the maximum available on summary conviction.  My client has no record and the circumstances only involved threatening conduct.  No immediate or lasting harm came to anyone and there were significant triable issues.

From one perspective or another, one can see the circumstances of any case at various positions along the spectrum of less serious to more.  Originally, I was of the view that a discharge would not be an appropriate way to deal with the matter, that a harsher disposition was in order, namely, jail or a suspended sentence.  There is no question it is a case for probation, but for the very reason that the prosecutor has taken an objectively unreasonable position on the Crown election, I am urging the court to impose a lesser punishment, being a conditional discharge, not a suspended sentence.  In either case, he is getting probation.  I am basically arguing that one of the factors that tips the balance in favour of a discharge as opposed to a suspended sentence is the fact that the prosecutor is proceeding by indictment.  The judge has put the case over for a presentence report, so I will have to report on the result later.