Charter Values, Charter Remedies

It was all over the news that on October 13, 2010, the Court of Appeal for Ontario declared that a lower court judge was in error in ordering a woman to remove a facial cover, a niqab, at a preliminary hearing.  The case is called R. v. N.S and pitted the interest of the witness's right to religious freedom against an accused right to a fair trial.  The result was not surprising and will no doubt be embraced by a large majority of both the public and the legal community.

The court decided that the preliminary hearing judge should have conducted an inquiry into whether the witness should have been allowed to testify in the manner she desired.  This meant too that she should have told of her right and afforded the opportunity to consult her own counsel. 
The court noted a "quandary faced by the preliminary inquiry judge":
  • [47]          . . .  Both M---d.S. [the accused] and N.S. [the witness] have powerful claims that seem to lead to diametrically opposed conclusions.  At least at first blush, it would appear that the constitutional values in issue collide.  Faced with an apparent collision of constitutional values, a court must first attempt to reconcile the rights so that each is given full force and effect within the relevant context..
  • [48]          Reconciliation of apparently conflicting rights requires that no Charter right be treated as absolute and that no one right be regarded as inherently superior to another:  R. v. Mills, [1999] 3 S.C.R. 668, at para. 61; Dagenais, at p. 877; R. v. Crawford, [1995] 1 S.C.R. 858, at para. 34.  Nor can the reconciliation of competing rights be addressed in the abstract without regard to the specific factual context...
The interesting aspect of the case the I wish to focus on is not the decision itself, but what court said about the Charter.  What was interesting was that the process for getting the matter heard was generated by what is commonly called an application for a Charter remedy.  The court simply said this was not necessary.  While a discrete application is often the only way to get relief, frequently invoking the Charter separately it is not necessary.  In this instance, the decision about whether the witness could testify in the manner she proposed was a decision that was part of the judge's responsibility in controlling the proceedings before him or her.  In a fundamental way, it was no different from the decision to allow a witness to wear sunglasses.  The comparison was the appeal court's way of illustrating the question.  In the sunglass situation, the witness might have a medical reason for having them.  On the other hand, the glasses might be a mere fashion statement and therefore allowing the witness that privlege might effect the fairness of the trial.
The simple fact is that the mere invocation of the Charter is not necessarily a request for a Charter remedy.  In many instances, it is simply a matter of applying Charter principles to the interpretation of a statue or rule and there is no need for special notice to the other party.


Anyone who has done one or two of these applications can make a career out of doing applications for others

From other lawyers, I have recently heard unfavourable comments about organizations who promote themselves as expert in obtaining pardons.  At least one organization now offers, for an increased fee, an expedited service.  The simple fact is that a pardon application requires three basic processes.  Each must be completed correctly, else the whole process will be delayed.  The first is obtaining certified copies of the court charges, the second is a CPIC records check and the third is completion of the application form. 
In my recent blog about amendments to the Criminal Records Act, I commented about "anyone who has done one or two of these applications can make a career out of doing applications for others. This is evident in the significant growth of organizations that offer pardon removal services."

I don't know about who is following my blog, but after posting that entry, some woman with a toll-free number called me in response asking if I was interested in her doing a guest column.  I didn't bother calling back because I was pretty sure the guest column was going to be a promotion for some not-for-profit pardons organization. (The 'not for profit' claim is probably misleading because, no doubt, the person who runs the deal pays himself or herself a salary based the organizations net profit.)


Last Year's Legal Aid Job Action: Are we any better off?

In the myth of Cumaean Sibyl, she asks Apollo for as many years as grains of sand in her hand. She is said to have lived for a thousand years while Apollo let her face and body waste away.  Of course, her mistake was she forgot to ask for eternal youth.

I was reminded of this story recently looking back at the Ontario criminal lawyers job action last year.  We withheld services in legal aid matters in key areas, particularly murder prosecutions.  The government ended up negotiating a deal with us.  Here we were, a bunch of smart lawyers, who to boot had hired another bunch of smarter labour lawyers, to obtain, in theory, a better delivery of legal aid services to the public, and more money for legal aid lawyers.  With some reservations, I wrote in an earlier blog, that I thought the deal looked pretty good.

The result was a pay increase across the board, spread out over five years, together with some kind of understanding to create a mechanism for reviewing the rate in the future. This all looked pretty good at the time. The problem was there was no committment from the government to fund these increases. It was not like we weren't aware of the funding issue because, just about the time our job action started, we complained about the inadequacy of the '$150,000,000' of additional money promised by the Ontario government.
All this left Legal Aid Ontario (LAO) with the task of paying out the same money in a different way.  LAO had already begun doing this in one way, and that was this:  If a legal aid applicant is not facing a jail sentence, he or she is not entitled to legal aid.  However, the process for making that determination should be static, not dynamic:  It should be based on the correct constitutional approach that does not vary with budge constraints.  Nonetheless, LAO embarked on a plan that has seen far more refusals based on that question than anytme before.  Thus, persons who were routinely granted certicates are no longer getting those certificates, leaving many more individuals unrepresented or being aided pro bono.  This was not the only change in the operation of the plan. 
One other has been in the reduction of discretionary allowances.  The plan has built-in tariff limits.  No kind of service is exempt.  A lawyer is expected to devote a controlled number of hours on any particular case.  For instance, the tariff limit on a summary guilty plea is six hours, including all court appearances and preparation time.  For the most serious matters, the preparation time is limited to 15 hours, but more preparation time is available depending on the number of days in court, and other tariff enhancements, including actual court time.  These can substantially increase the maximum tariff for any particular case.  For even experienced lawyers, it is not uncommon for the time expended to exceed the tariff maximum.  In my own practice, I would guess that in about 1/3 or my legal cases I spend more time than the tariff allows.  Often, it is only one to three hours, but it can be substantially more.  From my experience, and the experience of other lawyers I know or have heard from, these allowances have been practically routine.  However, this is the case no more.  On this change, I cannot yet speak from actual experience, as it appears this practice has only developed in the past few months since after the first increase took effect on February 1, 2010.  The fact is I am still waiting to have several discretionary requests processed.

Other changes also have impacted on keeping lawyer incomes down.  One little measure has been the practice of extending the period in which current certificates can be amended.  This period was previously five months.  Now it is up to a year.  This means that new matters are paid at the rate when the certificate was issued, not when it is amended. 

I hear that our association is trying to resolve these problems with the Attorney General.  This is something else for us to wait and see about.


Civil Remedies and the Criminal Law

I wrote a three-part article in about the problem of civil remedies legislation.  Unfortunately, the Supreme Court of Canada took a different view about the right of the provinces to seize and forfeit property that has a criminal taint to it, in Ontario under the Civil Remedies Act, 2001

The case, in my view, was one of those ones where it is said bad cases make bad law.  The precise issue before the court was whether or not the Province of Ontario could sieze and forfeit in excess of $29,000 cash seized from a young man in a car, without the person being prosecuted for a criminal offence and without any other proceedings being taken under the Criminal Code of Canada.  I am now exploring this problem in another multi-part commentary.


The New Pardon Regime

The Criminal Records Act, the enactment that sets out the procedure for obtaining a criminal pardon, all of sudden is in dire need of revision, only because one sex offender received one three years ago and because Karla Homolka is eligible to apply for one on July 5, 2010.  See the Globe and Mail article "MPs agree to head off Homolka’s bid for pardon"

Although this has all the elements of political pandering in the extreme, it is probably the case that the current law is too generous in providing a waiting period as short as three years and making the granting of pardons contingent only on the passage of time.

As well, you won't hear me complain about there being more work for lawyers to do.

When I mean work, I first mean the obvious challenge to the issue of retroactive application.  If a person is convicted when the old regime was in place, shouldn't he or she have the benefit of the pardon benefits that existed at the time?

Next, lawyers will probably play a more significant role in the pardon application process as the proposed legislation will require candidates for pardons to demonstrate their entitlement.  Right now, anyone who has done one or two of these applications can make a career out of doing applications for others.  This is evident in the significant growth of organizations that offer pardon removal services. 

It will be interesting to see what develops.


Changing release conditions

I have been busy with different projects and files and haven't had a chance to work on this blog.  To start this post, I note its Thursday and I am back at the barristers' lounge on a duty counsel day. 

I want to discuss a problem I have, which is unique and interesting.  A client was released on an undertaking.  The prosecutor now wants to have the undertaking reviewed under s. 503(2.3) and has proposed a number of more onerous conditions be added to the original release.  I have never seen this provision used, although I have heard that it has been done.  I have frequently applied to vary conditions that police have imposed.

The corresponding provision that allows a released person to apply for a variation is 503(2.2).  The governing principles that apply are self-evident, that the individual is entitled to a fresh hearing, not a review.  The reason is that an accused who is custody, must accept the terms in order to be released.  The acceptance of such terms is not voluntary and it is therefore fair that the accused have the option of requiring the prosecutor to establish the legitimacy of those terms.

The situation is different when the police set terms.  Presumably, they are in a proper position to judge what terms are appropriate, or whether or not terms should be set by justice of the peace.  In that situation, is a prosecutor entitled to a fresh hearing, the same way an accused has such a right?  No case authority gives guidance on the correct principles.  However, it seems to me that there must be a demonstrated change of circumstances and that it is not enough for the prosecution to say the police were in error and therefore the court should correct that error.  The police and the prosecution are arguably a single entity for these purposes.  As they say: "You made your bed..."


Surety guarantees now?

I was on vacation for two weeks and have spent much of the last two catching up and there has hardly been any spare time to work on this blog.  To start this piece, of course, I am back at the courthouse barristers's lounge on Monday morning between court appearance.

There is always something different to notice if you are gone for any period of time.  On being back, the one thing that came to my attention was the new surety affidavit form for proposed sureties in bail matters.   I have already commented on it in court because, in my view, the information contained in it is incorrect. 

The Ministry of Attorney General has a pamphlet available with surety information.  The creation of that document was done with care and I can find nothing in the webpage and document entitled, "What Sureties Need to Know" that I would disagree with.  The difference between the pamplet and the new form and the problems with the new form are these:
  1. That there is no suggestion in the new form that a surety may not be entitled to be relieved of the obligation to pay the full amount of the bail;
  2. The statements that the surety guarantees the good conduct of the accused are questionable;
  3. The statement that the surety could be imprisoned are questionable.
If the statements in the form are not accurate, this will have no impact on the situation where a surety is prepared to take on the obligation in any event.  The problem of course is when the form scares off a surety and an accused has to remain in custody for that reason.

The Court of Appeal for Ontario case of Canada (Attorney General) v. Horvath, 2009 ONCA 732 (CanLII) 2009-10-20, authored by Rosenberg J.A., involved the application to estreat bail in extradition matters for failing to appear in court.  The amount of bail sought to be estreated was significant.
The court noted that on the one hand, efforts by sureties were to be recognized and should go to mitigation.
However, it was still important for the integrity of the system for entirety of the bail to be at risk.
[41] I agree that the “pull of bail” is an important factor that serves as a reminder that, in attempting to do what is just and fair towards the sureties, the courts must be careful not to undermine the effectiveness of the bail system.
Our system depends upon accused attending court and if accused came to believe that they could fail to attend court without their sureties suffering any penalty, the surety system would be ineffective. ... 
The court also noted that as general rule, for smaller amounts $5,000 and under, the full amount of bail should be estreated.  The case stands for the proposition that where the accused does not attend court, the surety's best efforts are only a factor.  However, it must be the case that where bail is sought to estreated because of a breach, the surety's best efforts must be a more important consideration. 

Interestingly the court commented on the need for sureties to have accurate information about their obligations.  Attached to the decision was a form proposed or actually used by the Attorney General of Canada. It makes such statements as the surety must pay the full bail if there is a breach of one of the terms and that the surety guarantees the good behaviour of the accused.

Without being specific, the court commented that the use of the form was a good idea, but that the form should be modified in accordance with the courts reasons.

Interestingly, the form--download pdf file from golishlaw.com site--now being circulated, includes no statement as to its authorship, and essentially copies the basic form used in the Horvath case.  Moreover, the only modification is the additional threat to the proposed surety of a jail term:


1) I understand that if approved as surety by the Justice, I am promising to pay the full amount of the bail set opposite my name on the recognizance, if the accused person does not attend court as required or if he/she does not comply strictly with a term of bail or if he/she commits a criminal offence while on bail.
2) I understand that if the accused person breaches any term of the bail or commits a criminal offence, I must immediately report this to the police.
3) I understand that it is my responsibility to prevent any breach of the bail terms but if a breach does occur, the court may seek payment from me of the full amount of the bail set opposite my name on the recognizance, even if I supervised the accused person to the best of my ability,.
4) I understand that if I do not meet a financial obligation ordered by the court, I may be imprisoned. 
It is interesting that the court noted that while s. 773 does actually provide that a surety may be committed to prison in default, the judges were "told by counsel that there is no reported case of any surety having been imprisoned in Ontario in over 100 years."  That said, it seems improper to put these statements in.  The authors of the form should have simply relied on the statements set out in the official Attorney General "What Sureties Need to Know" document.


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 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.


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 proceeding 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.


Showdown at High Noon: the Legal Aid Boycott

It is Monday again and I happened to have been back in the barristers’ lounge at the Windsor court with some free time.  I had more than a few minutes, while I was on a break on a case where the arguments were presented in writing and we were waiting to hear if the judge wanted something more or was just going to give her decision without further argument.  In the end she reserved.

The latest news is the settlement of the Ontario criminal lawyers legal aid boycott.  As I remember, the boycott began last spring.  It started in Toronto and then rolled out across the province, mainly involving murder and “guns and gangs” cases.  The Criminal Lawyers Association executive ended up negotiating a deal with the Province of Ontario.  What each is saying about the deal is a little different.  It is not clear now whether there will be some formal ratification vote of the members or if it will be accepted by an ad hoc consensus, but in any event, it looks to be an accomplished fact.

Most of the membership appears to be happy about the settlement, but from my perspective, I am not sure about whether I think it is a good deal or not.  I am inclined to think it is, as a lot of naysayers predicted that in this economy, there was no sympathy for criminal lawyers.  As well, our legal rate exceeds rates everywhere else in Canada. 

That said, for starters, it remains to be seen whether a proper review mechanism will be part of the new regime.  Also, although we didn't demand parity with prosecutors, the deal is shy of the original modest demands we made and it will take a full five years before the promised increases take effect.

It was really a brilliant strategy on the part of the executive to boycott only major cases.  With that approach, we were able to achieve significant solidarity.  The reality was that with most of covered cases being murder prosecutions, the accused were not getting bail anyways, and for the majority of them, time was on their side.  So most lawyers could hold firm without it impacting on their practice at all.  On the other side, the province was thus in some significant difficulty because more and more major cases were going undefended, meaning more and more prosecutions were in significant jeopardy. 

There was however a deadline that the executive set for itself and criminal lawyers were on the brink of having to enlarge their work action.  Yet that would no doubt have resulted in some loss of solidarity.  The province was in a bind too, to get their major cases on track again.  So at eleventh hour, the parties settled and there was no showdown.


First Post

I have practiced criminal law for longer than I care to say.  In embarking on this blog journey, it appears I should have some focus, even something more specific than the very general subject of Canadian criminal law. On the other hand, I am not sure I need to be specific about anything. It might be simply enough to write about my experiences and thoughts as they relate to my daily practice.

Let me then have the opportunity to develop this blog and when I have figured out if I have a special theme, I can let my reader or readers know.  I say reader or readers to imply there will be at least one reader, for starters, myself.

I have figured I would create a log on a regular basis, but do not plan on making it daily.  Confidentiality requirements will not permit me to detail my activities, as I might otherwise be able to do.  That said, nothing prevents me from reporting about many of my experiences.

Today, for instance, was extremely slow.  Most days for me will involve a court appearance of sort or the other.  There are several kinds:  There might be one or more trials, or preliminary hearings, or bail hearings, many of these are only set to take a day or less.  Today, I had none and so nothing to prepare for.  Of course, there are always things to do in the office in the management of files, but today I had to be over in court for adjournments and to do duty counsel.  Because there was nothing pressing at the courthouse, I was able to start working on my blog in the barristers' lounge right on the 6th floor of the building.

I am the most senior duty counsel in Windsor.  Why I still do it, I wonder.  Sometimes, the work can be demanding, but being assigned to do bail court in Windsor normally does not require much of a challenge. I will probably have more to write about this in later blogs, but for now, I will just say a bail court posting requires me to speak to cases on behalf of unrepresented individuals or for other lawyers.  Normally, at least six or seven hearings would be scheduled in the bail court, but today there was only one, then another, neither of which proceeded.  It was not even necessary for me to speak to either case because their lawyer or lawyers were there when the matters were called.  The court finished early, before lunch.

So I started my first blog...