RSS FeedStudent Prop for Harper is a High-Risk Vocation
Law students should seriously contemplate their alternatives if ever approached to act as a student prop for the Prime Minister.
Not only was the reaction time disappointing, but the lack of empathy and concern expressed by Harper is rather alarming.
See more on A BCer in Toronto by Jeff Jedras.
On grandmothers and stunt driving
Sometimes a court case comes along that I simply love. Usually I love a case because it teaches me something about law, or because it is uniquely Canadian, or because it’s worth blogging about. This week’s stunt driving decision out of the Court of Appeal does all three. In R. v. Raham, Ontario’s highest court taught us how badly some of our laws are drafted and how lucky we are to have Francophone Canadians. There is also a reminder about a shockingly easy way to risk jail for making a left turn. I love this case.
Highway 7 between Ottawa and Toronto and grandmothers—I don’t know if there is something about this mix that leads to major debates in penal law, but on April 29, 2008 a woman passing a truck began an important case that culminated in an Ontario Court of Appeal decision on Thursday. Ms. Raham was driving home to Oakville from the Ottawa area and speeding. Closely in front of her was a tractor trailer, also speeding. They both were speeding at about 90 km/h in an 80 km/h zone. Ms. Raham stepped on it and started passing the truck.
It must have been a long truck because she kept accelerating until a diligent police officer driving behind her clocked Ms. Raham at 131 km/h (51 km over the limit). She did slow down after passing the tractor trailer—to 110 km/h. It was probably then that the officer pulled a surprised Ms. Raham over and charged her with “driv[ing] a motor vehicle on a highway while performing a stunt, to wit: driving at a rate of speed that was 50 kilometres per hour or more over the posted speed limit.” And that’s how a grandma was charged with stunt driving—a provincial offence punishable by a fine between $2000 and $10,000 or by up to six months of jail, or both. I am not even talking about licence suspension.
Ms. Raham’s lawyer, assuming she had one, didn’t like this charge. In Canada, if a penal law allows for jail time, it must contemplate the state of mind of the accused. There are two options: either the prosecutor must prove that the accused knew or should have known he/she was committing the prohibited act (full mens rea offences), or the accused should be able to raise the defence of due diligence (strict liability offences). This defence means you did everything you were supposed to do but the prohibited act still took place. In both cases the state of mind of the accused matters for conviction or acquittal. Our constitution always requires this when you are accused of something that can get you in jail. No jail without fault.
For some offences fault is not required. You can never go to jail for those. Ordinary speeding, parking, talking on your cellphone while driving (unless you kill someone), etc. come to mind. It doesn’t matter if you knew you were parking in the fire lane or if your speedometer was broken when you went 10 km/h over the limit. The law will punish you regardless of your fault. These offences are called absolute liability offences. Because punishments are relatively light, offences are frequent, and the threat to public safety is serious, the law wants quick justice without delving into your moral blameworthiness.
So Ms. Raham or her lawyer thought the stunt driving law allowed jail for an absolute liability offence. On their reading of the law, all you needed to do to commit the offence of stunt driving was to go 50 km/h over the limit. The law didn’t say anything about the mental state of the accused or if the fault was relevant to conviction. But it did threaten jail. Regular speeding offences are absolute liability offences. And the act they prohibit is identical to the stunt driving offence. The cop who pulled Ms. Raham even had a choice between a regular going-50-over-the-limit charge or a stunt driving charge. I guess the cop wasn’t in a forgiving mood that day.
The Justice of the Peace who tried Ms. Raham threw the constitutional argument out of the window and convicted the grandmother. She appealed to the Ontario Court of Justice, which acquitted her and declared the Ontario stunt driving law unconstitutional. It is from that decision that the government appealed to the highest court of Ontario. On Thursday, the Court of Appeal said the stunt driving law was constitutional.
The lower court’s theory that the Court of Appeal rejected was simple. Even, if stunt driving was a strict liability offence, its nature gutted any due diligence defence. The judge couldn’t wrap his head around how anyone could prove they did everything they should have done to avoid going 50 over if they were obviously speeding. He said you can’t prove you didn’t know you were speeding if you were going at least 50 over. And if you certainly knew you were speeding, how could you prove you did everything you were supposed to do to avoid going over 50? So your defence of due diligence would always fail making the offence effectively an absolute liability offence.
The Court of Appeal disagreed. Justice Doherty wrote that “[t]he defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense.” Even if you are going 49 over, but try really hard not to go 2 km/h faster, you will not be convicted of stunt driving if you do go over despite your reasonable efforts. Well, good luck with that in court, if you are accused of stunt driving. But you get the idea.
Of course, the legislature could have spared the courts so much legal wrangling if they drafted their laws better. We wouldn’t even be talking here if the Ontario Parliament expressly included the due diligence defence in the law. But they went far beyond just forgetting the defence. Here is the wording of the statute: “No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.”
A big part of the appellate decision is figuring out if these words mean two offences: a stunt or a bet, both in a race on a highway, or if they mean three offences: a race, a stunt, or a bet, all while driving. In the first case, the stunt offence would include elements of the race offence that contemplates the state of mind (no constitutional issue). In the second case, the stunt offence is stand-alone and figuring out the state of mind component is up to the courts (a constitutional issue).
The Court of Appeal preferred the second interpretation. And one of the decisive factors in its decision was the French version of the law, which was pretty straightforward unlike the English version. There you go: thankfully we have French-speaking Canadians and a constitutional requirement of bilingual laws. If one version of the law looks like it was drafted by a serpent from the tree of knowledge, we always have the other version for backup.
And the final lesson of this case is that you can go to jail for dashing in front of the waiting traffic in the opposing lane to make a left turn when the light switches to green. Seriously, check s. 172 of the Highway Traffic Act and s. 3, item 8-iv of Ontario Regulation 455/07.
(Post sponsored by AdviceScene)
The Insanity Defence
Achieving Your Goals in Law School
It’s kind of like kiddie soccer.
Wikileaks considered a “threat” by US Army
WikiLeaks logo (via Wikipedia)
WikiLeaks, the whistle-blowing website that provides confidential and sensitive documents for free to the media, human rights groups and the public, has been deemed a threat by the US Army.
WikiLeaks has been responsible in the past for providing a copy of the Standard Operating Procedures for Camp Delta, the contents of Sarah Palin’s Yahoo account, and a membership list of the far-right British National Party which got at least one police officer dismissed, among many other significant stories.
A 2008 document recently posted there, entitled U.S. Intelligence planned to destroy WikiLeaks, states,
The possibility that current employees or moles within DoD or elsewhere in the U.S. government are providing
sensitive or classified information to Wikileaks.org cannot be ruled out.
Plans included trying to shut down the website using a variety of techniques, including exposing their sources to embarrass and intimidate them, and even litigation.
Considering that this document was considered “secret,” and presumably came from someone who had access to confidential files, the concerns may be valid. But the appropriateness of the response by the military towards a media channel providing a significant and overwhelmingly positive contribution to issues of public interest is also suspect.
The editors of WikiLeaks note that 2 years have passed without any exposure of their sources, indicating that this response may also be particularly ineffectual. They also point to inaccuracies regarding the editorial control of the site.
Even if the Army was able to shut down WikiLeaks, they concede that the problem is not limited to a single site,
Web sites similar to Wikileaks.org will continue to proliferate and will continue to represent a potential force protection, counterintelligence, OPSEC, and INFOSEC threat to the US Army for the foreseeable future.
Although security interests are pressing and substantial, when a democratic government administration is known to participate in systematic abuses of human rights and widespread violations of international norms, the balance of favour should continue to support sites like WikiLeaks.
Could lawyers provide material support to terrorist organizations?
Interesting post at Persuasive Authorities on the implications of Holder v. The Humanitarian Law Project and Al-Haramain v. Bush,
These two cases raise some serious issues for lawyers and law professors who provide legal opinion, advice, representation or education to suspected groups even when it is completely unrelated to terrorist violence.
Also see related post by Prof. Fadel of UofT at Foreign Policy,
At issue is the constitutionality of the United States government’s interpretation of a 1996 law criminalizing, with a maximum penalty of 15 years in prison, the provision of “material support” to foreign terrorist organizations. This provision is the government’s most used law in prosecuting those suspected of terrorism, largely because of the law’s breadth, and because it does not require the government to prove that the defendant intended to further the violent aims of the terrorist group. Especially troubling from the perspective of the foreign policy community is that it also prohibits providing “training,” “personnel,” “expert advice or assistance,” or “service” to such a group, even when such services are completely unrelated to terrorist violence.
Who falls for e-mail scams?
Lawyers, it seems. See more on Hot Air.
Government Ignores “Tough on Crime” Statistics
A great article just came off the Canadian Press wire. The upshot is that the Canadian government is ignoring the results of social science studies about crime and punishment. Here are some quoteable quotes:
Federal spending estimates indicate capital expenditures on prisons in Canada will increase by more than 40 per cent in 2010-11 to $329.4 million from $230.8 million this year, although the Conservative government has refused to publicly detail the costs of its criminal justice agenda.
…
“The great appeal of mandatory minimum sentences is that they give politicians the appearance of doing something, of being seen to be doing something,” Craig Jones, the executive director of the John Howard Society of Canada, said in a recent interview. “You must never underestimate the need for politicians to be seen to be doing something — even if, in some cases, it’s the wrong thing.”
…
In a 2008 speech, Harper flatly denounced research-based justice policies, accusing the pedlars of such policies of trying to “pacify Canadians with statistics.” “Your personal experiences and impressions are wrong, they say; crime is really not a problem. These apologists remind me of the scene from the Wizard of Oz when the wizard says, ‘Pay no attention to that man behind the curtain.”
…
More recently, Harper’s former chief of staff Ian Brodie told a McGill University forum last spring that informed criticism of the government’s justice agenda is a political gift: “It helped us tremendously to be attacked by this coalition of university types.”
If school kills creativity, what about law school?
Sir Ken Robinson offers some critique of our education system in this video from 2006. Perhaps some of this could be used in law school reform.
Who ever heard of creativity in law school?
Loophole in Olympic Rulebook
OPP Officer Murdered, Tragic Irony…
First and foremost, R.I.P.
Unfortunately, as the reports circle around the internet, PC Vu Pham, 37, has succumb from his injuries he received in a shooting this morning. Pham leaves behind a wife and three children and a community, in which he was deeply involved, in mourning for his sudden, tragic, and senseless murder.
The 70 year old suspect’s name has not been released, but he will undoubtedly be charged above all else with first degree murder.
It is reported that PC Pham, a Vietnamese immigrant and veteran officer of 15 years, was attempting to stop a suspect vehicle from a report of domestic violence. If this is the case, it is the worst kind of irony, because today, March 08, is International Women’s Day. A day that in part is aimed at preventing violence against women.
This is the second police officer who has been killed in the line of duty in a week in Ontario. On Monday, March 01, Artem “James” Ochakovsky, a Peel Regional Police officer died in a traffic accident when his police cruiser hit another car and then wrapped around a telephone poll.
Although the deaths of Ochakovsky and Pham are different in nature, they are tragic to the community and especially the policing community.
I will save my personal opinion for my personal website, and if you are at all interested in reading it, follow this link.
How to avoid committing sexual assault
There are man crimes. Take sexual assault, for example. I don’t have the stats but I will be really surprised if most people convicted of sexual assault weren’t men. For example, the Criminal Code has special rules making it more difficult to challenge complainants during trials for sexual assaults. The purpose of these rules is obviously to protect female victims. The law of sexual assault regulates largely male behaviour, and men should know this law well. The guy who was convicted after sex with his twin brother’s girlfriend should have known better. This story hit the media because he appealed his conviction, and the issues he is raising on appeal show how complicated and fact-specific sexual assault law can be. The lesson for men in Canada is to be extra careful and avoid sex if you’re not sure. Read below for specific suggestions.
Sexual assault is any physical contact without consent “in circumstances of a sexual nature such that the sexual integrity of the victim is violated” (Martin’s Criminal Code). If you are accused of sexual assault, what the physical contact looked like to you is irrelevant. What matters is if the judge thinks it was sexual. He or she will look at many factors such as “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force … and the motive of the accused” (Martin’s Criminal Code). Sometimes your motive will be important and sometimes not.
In the twin brother case, the man had sex with the woman so the nature of physical contact was not an issue. The question on appeal is about the woman’s consent: was the man reckless or wilfully blind when he believed the woman agreed to the sexual contact? I don’t have the trial judge’s decision or the parties’ submissions on appeal, and I don’t want to draw conclusions about this case from the media’s reporting. So let’s say the case is just an inspiration for this essay.
Suppose the prosecution argued that the man had a higher duty to make sure the woman consented because he looked almost exactly like his brother. It’s a reasonable argument for the Crown to make because belief in consent is not a defence if you were “reckless” or “wilfully blind” in having this belief. It means if you knew there was a chance the woman didn’t consent or if you knew you had to do more to find out if she consented but didn’t because you didn’t want to, and the court finds she didn’t consent, you’re a criminal.
If you are the twin brother of a woman’s boyfriend, do you have to take extra steps to ensure her consent before sex even if you think the woman gave it? One theory could be that the exceptional similarity of twins creates a special risk that the woman will confuse one brother for another. If you know of this risk but go ahead, you are reckless even if you believe the woman consented. If you don’t know of this risk but know about the possibility of risk and prefer to ignore it, you are wilfully blind. In both cases, you are guilty of sexual assault if it turns out the woman didn’t consent.
As you can see, the law of sexual assault is complex and fact-specific. One reason why the Parliament and the courts chose to make it that way is to protect women because of many ways in which they could be against having sex and because they would not always be able to make it clear to the man, for example out of fear. The burden is clearly on men (assuming sexual assault is a man crime as I argued in the beginning) to make sure the woman consents before and during any sex. But if lawyers and judges disagree on the complex questions of consent, what should ordinary men in Canada do? (I am not talking about rapists, violent men, and other obviously criminal types.)
Criminal law must give clear guidelines, or it risks becoming unjust. Vague criminal law is unconstitutional in Canada. I am not arguing that the sexual assault law is vague but it’s complicated enough for men to have to follow the highest standard of conduct to really be on the safe side. In your normal sexual relations, the line between lawful and criminal conduct can be very thin. You can cross it easily. Here are some suggestion for all men in Canada:
- before any touching, ask the woman if she consents and do not touch until she says yes
- sexual touching includes hair, neck, hands, face, etc.—not just the obviously sexual areas
- of course, it also includes the sexual act itself
- if the woman says no, do not touch her; do not assume that she is playing; in criminal law, no means no
- if you know you look like someone else she knows, tell the woman exactly who you are before any touching
- during any touching, constantly monitor the woman for signs she stopped consenting
- if you see any signs that she withdrew her consent, stop all touching immediately
- videotape everything (preferably in high definition) in case the facts are disputed in the future
- don’t forget to warn her you’re videotaping because uninformed consent doesn’t count
- having two impartial witnesses during the whole process is even better
- DO NOT DRINK before or during the physical contact with a woman: you risk impairing your judgement and missing the moment when she stops consenting. Self-induced intoxication is not a defence.
- above all, guys, treat women with respect and avoid random sexual relations
(Post sponsored by AdviceScene)
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