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The study by Professors James Stribopoulos of UofT, and Moin Yahya of UofA, has finally been published.
Law is Cool did a post that cited their work while it was still underway, and commented on the importance and possiblity of complete impartiality.
Religious Promises may be Binding
The new Supreme Court Case ruling, Bruker v. Marcovitz, has some interesting implications for Jewish family law.
The case was considered by The Lawyers Weekly to be the “most timely and topical” of all the appeals reviewed by the court last year.
Background 
In Judaism, a couple can only get a divorce when the man issues a sefer k’ritut, or “cutting off scroll,” more commonly known as a get.
The procedure was actually instituted to safeguard against reckless divorce, but has the consequence of leaving initiation of divorce to the husband.
To circumvent this, many Jewish couples create a contract prior to marriage stating that the woman can obtain a get on demand if the circumstances require it.
The parties in this case were married in 1969, and received a decree nici for divorce in 1980 that was finalized the following year.
The original contract stipulated that in the case of divorce they would appear before a Jewish Tribunal (Beth Deen) to receive the get. However, the defendant thereafter refused to issue the traditional get, claiming it was being used to prevent him from seeing his children.
The plaintiff still considered herself religiously married, and therefore chose not to remarry and did not receive a get until 1995, after she was no longer of childbearing age. Any children she did have during the interim would be considered by her to be illegitimate.
She sought damages in 1989 for $500,000 in breach of contract, which thereafter was increased to $1,350,000 in 1995 to reflect additional damages for lack of companionship.
The husband sought protection under s. 3 of the Quebec Charter,
Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
The Ruling
The court first commented on the religious nature of the case in a secular court. Abella, J., herself a Jewish woman, said,
The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. This harmonizes with Canada’s approach to equality rights, to divorce and remarriage generally, to religious freedom, and is consistent with the approach taken by other democracies.
The court found that the contract was between two conscionable parties represented by counsel and intended to be legally enforceable, and that awarding of damages would not infringe on relgious freedoms:
The court is not asked to determine doctrinal religious issues, and there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones…
Any impairment to the husband’s religious freedom is significantly outweighed by the harm both to the wife personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce. These, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests that outweigh the husband’s claim.
Dissent, Critique, and Commentary
Yu-Sung Soh, though supporting the majority decision, summarizes the dissent,
…the dissenting minority took a more categorical approach in refusing to intervene in private disputes of a religious nature where there is no violation of a rule recognized in positive law. The dissent held that since there had been a civil divorce between the parties, there were no legal barriers for the ex-wife in remarrying and having legitimate children. Only her religious rights as a result of religious rules were infringed and this was not a matter that the courts should determine.
The dissent essentially stated that the damages in this case were self-inflicted by the plaintiff, though admittedly based on religious conscience.
Russ Brown of UofA offered his critique,
My first impression is that I am (strongly) inclined towards the dissenting reasons of Deschamps and Charron JJ who state that judicial consideration of religious questions should be predicated on a demonstrated violation of a rule recognized in positive law.
Brown also points out that the claim for damages were based on religious, and wonders what the court would decide if an injunction for specific performance was sought instead.
However, and comment in the Star,
Religious and cultural obligations form the life experiences of Canadians who live by them, and they cannot be brushed off as “cultural” values instead of “Canadian” values. It is traditionally within the court’s jurisdiction to “ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion,” Abella concludes, and this case fits comfortably within that tradition.
But the most interesting element may be the fallout of this case and its implications on Contracts Law.
Professor Daniel Cere of McGill University religion said in the National Post,
The judgment may provide some relief for Jewish women who feel trapped by the internal logic of Jewish divorce law” but warns that on the Bruker principle, the courts might gradually be “transformed from a shield to protect religious freedom into a sword to coerce particular religious undertakings.
Promissory Estoppel has not been posted on this site yet, but typically is considered in Canada a shield, i.e. a defence against proceedings, for which an injunction is the only remedy. This ruling may change that for the future.
Limits to Hockey Violence
Kevin “Killer” Kaminski’s recent concussion has revived much of the debate over violence in Canadian hockey.
[youtube]http://www.youtube.com/watch?v=bgH3YYrOXSg[/youtube]
Interesting enough it is cases in hockey that have led to the test used in Canada for criminal causation of manslaughter.
The Smithers Test
In Smithers v. R. (1977), the appellant was a black teen that received taunts and racial slurs from another player.
He waited for the individual to leave the rink after the game and committed an act of assualt and battery, including a kick in the stomach that caused him to vomit.
The attack, though not necessarily intense in nature, resulted in the death of the victim due a malfunctioning epiglottis that caused the victim to choke on his vomit.
Laskin C.J. stated,
There was substantial evidence before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that was all that the Crown was required to establish. It was immaterial that the death was in part caused by a malfunctioning epiglottis to the malfunction of which appellant may, or may not, have contributed. A person commits homicide when directly or indirectly, by any means, he causes the death of a human being and it was therefore no defence that appellant did not expect that death would ensue.
The case upheld the use of the thin skull rule for homicide, which states that you take the victim as they are, and a wrongdoer is responsible for the unintended and unforeseen consequences of their actions.
In R. v. Creighton, MacLachlin J. said,
The Thin-Skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death. That is not, in my view, contrary to fundamental justice.
Other Applications
The thin skull rule has also come up recently in the media on the use of tasers by the police. Ryan Fritsch states in a letter to the Star,
…The same rule should apply to cases involving Tasers. We imagine that they are a harmless way to stun a person, but some people have “thin skulls” that render a Taser a deadly weapon. Therefore they must only be used as a last resort and as a weapon of deadly force. In other instances of their use, the thin skull rule should apply. The only way you will reign-in the increasing and increasingly senseless number of Taser deaths at the hands of bullying police is for the police and judiciary, as a matter of policy, to start applying the “thin skull rule” where a Taser was used inappropriately.
The thin skull rule also has a considerable amount of application in Torts law.
Implied Consent
In 1934, hockey rinks didn’t have the protective plexiglass walls that surround the rink today.
In Elliott and Elliott v. Amphitheatre Ltd., the defendant, a hockey player, was absolved of liability for a puck that hit a spectator in the stands.
The court held that the plaintiff implicitly consented to injuries incidental to attending sporting events, thereby providing implied consent.
Limits to Consent
Agar v. Canning (1965) similarly found that players consented to the risk of unintentional injury by participating. This implied consent was echoed in the criminal case of R. v. Cey (1989), but the court also stated,
In agreeing to play the game a hockey player consented to some forms of intentional bodily contact and to the risk of injury therefrom. However, there were some actions which could take place in the course of the game that were so violent it would be perverse to find that anyone taking part in the game had impliedly consented to subject himself to them. The scope of implied consent was to be determined by reference to objective criteria including the conditions under which the game was played.
The criminal case of R. v. Jobidon (1991) expressed similar concerns over consentual limits for violence,
Just as the common law has built up a rich jurisprudence around the concepts of agreement in contract law, and volenti non fit injuria in the law of negligence, it has also generated a body of law to illuminate the meaning of consent and to place certain limitations on its legal effectiveness in the criminal law. It has done this in respect of assault. In the same way that the common law established principles of public policy negating the legal effectiveness of certain types of contracts — contracts in restraint of trade for example — it has also set limits on the types of harmful actions to which one can validly consent, and shelter an assailant from the sanctions of our criminal law.
A Toronto firm, Zvulony & Company, explains the relevance of this case in Hockey Violence and the Law,
The legal outcome of the Jobidon is that the consent of the opponent is no defence when an adult intentionally inflicts bodily harm during a brawl or fistfight. Public policy mandates that there are limitations to when harmful conduct to which one may validly consent to would bar a conviction for assault.
Excessive Force
R. v. Ciccarelli (1988) found that consent to use physical force had been exceeded by one hockey player who was held liable:
The accused, a hockey player, had struck another player in the head three times with his hockey stick during a hockey game. The blows had been struck at a time when play in the game had stopped and after the accused had been “cross-checked” by the victim. (1) There was an implied consent to the use of force between players as a result of the players voluntarily engaging in such contact sports but the nature of the implied consent was limited to the ordinary or usual risks and hazards of the sport. The victim here testified that he had not consented to what had actually occurred nor was there any evidence that the accused had a belief that what happened was within the purview of implied consent.
R. v. McSorley (2000) also found,
I conclude there is an unwritten code of conduct agreed to by the players and the officials. This amalgam of written rules and the unwritten code leads to composite rules, such as the following. It is a legitimate game strategy to slash another player, but if done with sufficient force, and if the referee sees it, then the offender’s team plays one player short for two minutes. It is a legitimate game strategy to fight another consenting player, but the offenders are kept off the ice for a period of time determined by the referee.
However, the court found that the defendant’s slashing to the head resulting in a grand mal seizure and three concussions constituted an assault, as it was not the type of blow considered normal in the game:
A hockey stick is not designed as a weapon, but is often used as such to slash and cross-check other players… Every time a player uses a stick to apply force to another player, the stick is being used as a weapon and not to direct the puck as it was designed to do.
So although courts historically have been reluctant to convict sports violence due to consent, they are increasingly imposing limits on this consent and the type of violence that is sanctioned.
If the public expects even higher standards of conduct from players in the future, we may see this line shift further.
Reducing 6 life terms…
Protecting Minorities in Canada from Free Speech
We’ve had over two thousand new visitors in the past 24 hours. We can track how people get to our site, so we know they are mostly readers of Mark Steyn or affiliated sites.
Part of Steyn’s expressed tactics include spamming government officials, media, and other figures.
They have done the same here.
Comments for these posts will be closed. Irreverent comments will be retained, irrelevant ones will not.
Updates
Time for this site to move on after a brief primer.
Since many of our new visitors are from the U.S., it might be useful to explain the differences in free speech between Canada and America.Canada has a much longer history of protecting minorities, stemming from the challenge of protecting French Catholic rights (as demonstrated by Buzzanga below).
Academic Primer
Terry Glavin of The Tyee has an article that, although supportive of Steyn’s position, gives some depth to the issue of free speech in Canada,
Canada is not the United States. We have no First Amendment here. Canada’s Constitution affirms our rights to free speech, but we’ve never had such cause to be so afraid of our government that we wet our trousers at the suggestion that it’s okay to reserve to the state some authority to limit free speech.
He also explains the use of tribunals in Canada,
…tribunals have been used in hate-speech and incitement cases before, to useful effect, against Nazis, white-power lunatics, holocaust deniers and gay-bashers. But filing these sorts of complaints with human rights tribunals is a growing trend, and it’s pushing the tribunals into terrain they weren’t built to traverse.
It is important to note here that almost all of the Charter application cases currently reviewed are in areas not originally intended. This is the nature of the common law.
Calls for the American invasion of Canada by some of Steyn’s supporters are comical, yet uncalled for. But they do shed light into the nature of his support base.
More on the Canadian Common Law
Daniel Shap formerly of Osler, Hoskin & Harcourt has a (dated) article on the Application of Canadian Hate Laws.
The highlight of the article is the landmark case on the subject, R. v Buzzanga, which interprets s. 319(2) of the Criminal Code,
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
The defendant deliberately spread satirical hate literature entitled Wake Up Canadians Your Future Is At Stake!, not to disseminate hate, but to counter apathy and to compel Government action to counter perceived prejudice in community against French Canadians.
The text of the literature was as follows,
WAKE UP CANADIANS
YOUR FUTURE IS AT STAKE!
o IT IS YOUR TAX DOLLARS THAT SUBSIDIZE THE ACTIVITIES OF THE FRENCH MINORITY OF ESSEX COUNTY.
o DID YOU KNOW THAT THE ASSOCIATION CANADIAN FRANCAIS DE L’ONTARIO HAS INVESTED SEVERAL HUNDREDS OF THOUSANDS OF DOLLARS OF YOUR TAX MONEY IN QUEBEC?
o AND THAT NOW THEY ARE STILL DEMANDING 5 MILLION MORE OF YOUR TAX DOLLARS TO BUILD A FRENCH LANGUAGE HIGH SCHOOL?
o YOU ARE SUBSIDIZING SEPARATISM WHETHER IN QUEBEC OR ESSEX COUNTY.
o DID YOU KNOW THAT THOSE OF THE FRENCH MINORITY WHO SUPPORT THE BUILDING OF THE FRENCH LANGUAGE HIGH SCHOOL ARE IN FACT A SUBVERSIVE GROUP AND THAT MOST FRENCH CANADIANS OF ESSEX COUNTY ARE OPPOSED TO THE BUILDING OF THAT SCHOOL?
o WHO WILL RID US OF THIS SUBVERSIVE GROUP IF NOT OURSELVES?
o IF WE GIVE THEM A SCHOOL, WHAT WILL THEY DEMAND NEXT … INDEPENDENT CITY STATES? CONSIDER THE ETHNIC PROBLEM OF THE UNITED STATES AND TAKE HEED.
WE MUST STAMP OUT THE SUBVERSIVE ELEMENT WHICH USES HISTORY
TO JUSTIFY ITS FREELOADING ON THE TAXPAYERS OF CANADA, NOW
o THE BRITISH SOLVED THIS PROBLEM ONCE BEFORE WITH THE ACADIANS, WHAT ARE WE WAITING FOR …?
Compare this to an excerpt from Steyn’s book:
Why did Bosnia collapse into the worst slaughter in Europe since World War Two? In the thirty years before the meltdown, Bosnian Serbs had declined from 43 percent to 31 percent of the population, while Bosnian Muslims had increased from 26 percent to 44 percent. In a democratic age, you can’t buck demography—except through civil war. The Serbs figured that out—as other Continentals will in the years ahead: if you can’t outbreed the enemy, cull ’em. The problem that Europe faces is that Bosnia’s demographic profile is now the model for the entire continent.
It was not considered relevant that the defendants were themselves party of the group targetted, rather, that their actions would reasonably lead to undesirable consquences.
From his evidence the Court concludes that the meaning of a message resides in the receiver, based on his own conceptions as opposed to the initial intent of the sender… there is that certain segment in every community whose views would be reinforced and increased by the message.
Martin J.A. explained how the reasonable person could foresee the consequences of their actions,
Since people are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that the accused also foresaw the problable conseqences of his act and if he, never theless, acted so as to produce those consequences, that he intended them. The Greater the likelihood of th relevant consequences ensuing from the accused’s act, the easier it is to draw the inference that he intended those consequences. The purpose of this process, however, is to determine what the particular accused intended, not to fix him with the intention that a reasonable person might be assumed to have in the circumstances, where doubt exists as to the actual intention of the accused.
Steyn himself acknowledges the adverse outcomes of his hypotheses,
My book isn’t about what I want to happen but what I think will happen. Given Fascism, Communism and ethnic cleansing in the Balkans, it’s not hard to foresee that the neo-nationalist resurgence already under way in parts of Europe will at some point take a violent form…
I think any descent into neo-Fascism will be ineffectual and therefore merely a temporary blip in the remorseless transformation of the Continent.
Even if discounting its utility, his position does normalize genocide. It is worthy to note that his disclaimer occurs distinct from his book.
R. v. Keegstra defines “wilfully” as follows,
The interpretation of “wilfully” in Buzzanga has great bearing upon the extent to which s. 319(2) limits the freedom of expression. This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. Such a reduced scope is recognized and applauded …this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word “wilfully” imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression.
Shap explains,
In other words, in order to transgress s. 319(1), one need not have intentionally promoted hatred. Neither must the communicating statements have been intended for a public audience. All that is required is that the accused actually succeeded in inciting hatred which was “likely to lead to a breach of the peace.”
The post-9/11 backlash is well documented in both Canada and the U.S.
[youtube]http://www.youtube.com/watch?v=edHOZ6MvCG0[/youtube]
Given two global wars of invading Western armies into predominantly Muslim countries, one of which Canada is directly involved in, and the accompanying propaganda that typically accompanies such military endeavours, the likelihood of breaches of the peace appear obvious.
The reasonable person could assume that such statements could plausibly lead to violence.
As Martin J.A. also said,
It is evident that the use of the word “wilfully” …reflects Parliament’s policy to strike a balance in protecting the competing social interests of freedom of expression on the one hand, and public order and group reputation on the other hand.
Again, this balance is decidedly different than, for example, in the U.S.
Spin-Offs in Calgary
The Western Standard has issued an apology after a complaint was filed to the Alberta Human Rights and Citizenship Commission and the Canadian Human Rights Commission.
The contentious statements were posted on a blog owned by the Western Standard, in response to Ezra Levant’s response by Maclean’s on Steyn. They included the following:
There is no such thing as innocent Muslims…
They must all be killed. All of them.
Matthew Johnson, the new owner of the Western Standard (Ezra Levant of Maclean’s was their former publisher), said,
I apologize to you and the Calgary Muslims who took offence to the comments
found on our website. I took offence to these comments as well, as did the
vast majority of our readers. On January 15, 2008, the new Western Standard website will be launched. I invite you to judge our commitment to fostering respectful debate at that time. In the future, please contact us directly with any concerns you might have about our content. You’ll find us to be very responsive.
Steyn responds to Law is Cool
As expected, Mark Steyn has responded within a day to Daniel Simard‘s last post on hate speech in Maclean’s.
Perhaps not as expected, he makes some snide remarks about the Canadian Human Rights Commission.
But he goes even further; on Dec. 12 he said,
…these cockamamie Human Rights Commissions which are an abomination to any free society.
Maybe he thinks they don’t read his blog, or that they share his blatant disregard and respect for the legal system.
Updates
We know that he is obviously ignorant of Canadian laws (and ignorance is no excuse), especially when it comes to hate speech. He queries whether the remark above,”typically snubbing manner,” is also “illegal.”
Hardly comes under the definition of slander, especially considering the statements by the Telegraph that he endorses,
Flagrant it is — if, by flagrant you mean abrasive, unapologetic opinion. That’s Steyn’s speciality.
Steyn supporters have even started a Free Steyn movement, completely with petition.
The Criminal Code states,
Public incitement of hatred
319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
But since this is a tribunal affair, and not a case being brought by the Crown before a criminal court, Steyn’s freedom is hardly at stake.
Yet.
Violent hate crimes against Muslims are already on the rise in Canada, and Muslims (or those mistaken for them) are already the largest victims of hate crimes today. It’s a matter of time before an offender attributes their act to incitement by Steyn’s words.
More Tit for That
Steyn also responded to this post earlier today. Most of his comments do not deserve a response. Of course he never heard of this site, it’s intended for first-year law students in Canada. And yes, Daniel Simard is one of our team members and contributors, but the contents and the parties here are distinct from the complaint against Maclean’s.
He states,
Likewise, Maclean’s is Ted Rogers’ and Ken Whyte’s magazine. If they don’t want your guys writing on it, that’s their right.
Editorial discretion is not something this site has a problem with. But the editorial support by Maclean’s for content that is at the very least troublesome is something worthy of judicial review.
R. v. Keegstra states,
…while other non-criminal modes of combatting hate propaganda exist, it is eminently reasonable to utilize more than one type of legislative tool in working to prevent the spread of racist expression and its resultant harm. To send out a strong message of condemnation, both reinforcing the values underlying s. 319(2) and deterring the few individuals who would harm target group members and the larger community by communicating hate propaganda, will occasionally require use of the criminal law.
Note that Steyn does not allow commentary on his main site.
UK Lawyers join Canadian Critique of Khadr
Law groups in the UK, including the Bar of England and Wales, Criminal Bar Association, Bar of Human Rights Committee and Commonwealth Lawyers’ Association, have joined in the critique of Canada’s handling of the Omar Khadr case.
Andrew Holroyd, president of the Law Society of England and Wales, has characterized the military commissions as “illegitimate and irreparably flawed.”
The legal communities in the U.K. sent a letter to Prime Minister Stephen Harper addressing Canada’s unique stance in the Commonwealth world,
We do not believe that Canada, a Commonwealth partner, should remain silent while the U.S. subjects its citizen to such a process. Every other ally of the United States, including the United Kingdom, France, Germany and Australia, has acted to protect their citizens detained at Guantanamo Bay.
Perspectives from the Canadian public have been equally compelling.
Critique of Canada’s lack of intervention in the Khadr case has been steadily rising since the Canadian Bar Association’s (CBA) Annual General Meeting last summer, where they issued a similar call to the Prime Minister. Chief Justice Beverley McLachlin was in attendance at the meeting.
Bernard Amyot, President of the CBA, has stated to Law is Cool,
The war on terrorism cannot be won by denying those suspected of terrorism the fundamental right to answer charges in a fair and open process.
Counsel for Khadr has likewise expressed that the solution to this problem is political, not legal in nature.
Yet, the Khadr case recently was accepted for review with the Supreme Court of Canada.
CBA Tips for Exams
The Canadian Bar Association (CBA) shared in their September edition of Addendum some sites with tips for exam preparation.
Though most schools have concluded their first semester exams by this point, many are re-evaluating the strategies used for the coming year.
Here are the sites:
- York University Counselling and Development Centre
http://www.yorku.ca/cdc/lsp/eponline/exam.htm
Some general tips on exam prep.- The Cook Counseling Center at Virginia Tech
http://www.ucc.vt.edu/stdyhlp.html
Study skills site includes online skills workshops.- The University of Guelph’s Learning Commons
http://www.learningcommons.uoguelph.ca/LearningServices/Fastfacts-Exams.html
Advice on study prep and comprehensive links.- Resources for First-Year Law Students
http://www.fp.ucalgary.ca/jwhamilt/resources_for_law_students.htm
University of Calgary Prof. Jonnette Watson Hamilton’s guide for law students.- The University of Manitoba’s Learning Assistance Centre
http://tinyurl.com/2xrpvp
A list of general tips for exam and test prep.
Human Rights: Freedom of Expression
Four students, one current and three recent graduates of Osgoode Hall, have launched human rights complaints against Maclean’s magazine for an article entitled, “The Future Belongs to Islam,” by Mark Steyn.
Below is a recent article from the National Post, giving a brief summary of the situation and an overview of the law students’ position.
Essentially their research has shown that the article in question is not an isolated piece; on the contrary, Maclean’s has published many editorials with similar discriminatory content and slanderous allegations directed towards the Muslim community.
All we want is a chance to respond
Naseem Mithoowani, Khurrum Awan, Muneeza Sheikh and Daniel Simard, National Post Published: Thursday, December 20, 2007
On Dec. 4, the four of us announced that we had launched human rights complaints against Maclean’s with respect to its October, 2006 article, “The Future Belongs to Islam,” written by Mark Steyn. In light of the attention our complaints are receiving — most recently, through an article by Ezra Levant published on these pages (“Censorship in the name of human rights,” Dec. 18)–clarifications are in order.
First, it is important to examine the actual content and thesis of Mr. Steyn’s article. Its basic premise is that, just as the “white man settled the Indian territory,” Muslims in the West are poised to take over entire societies, and the “only question is how bloody the transfer of real estate will be.”
Perhaps the Maclean’s article is best summed up by the following extract, in which Mr. Steyn inserts what he terms the “obligatory” of courses: “Of course, not all Muslims are terrorists — though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists — though enough of them share their basic objectives.”
What should we do when a Canadian magazine publishes an article alleging that many Muslims are “hot for jihad,” and that they share the same basic goals of terrorists? True to Canada’s tradition of free speech, we decided to engage Mr. Steyn in a debate about his views.
We decided to follow the example of the Muslim Canadian Congress (MCC), a small but strident group of self-described “liberal secular Muslims,” which has come to the defence of Maclean’s. In its most recent media release, the MCC advised: “Mark Steyn’s article was definitely alarmist, but the answer to his challenge is to write a counter piece and demand that Maclean’s publish it.”
Unfortunately, the MCC’s advice came about nine months too late. On March 30, 2007, we met with Maclean’s senior editors and proposed that they publish a response from a mutually acceptable source. The response was negative, which resulted in our human rights complaints.
In his National Post article, Mr. Levant devotes much attention to the importance of freedom of expression in Canadian society. We agree, which is why we asked Maclean’s for an opportunity to debate Mr. Steyn. It is also why Mr. Steyn is not a party to any of our human rights complaints. We haven’t asked him for an apology or a retraction. Neither have we filed hate-speech complaints against him. He is free to do and say as he pleases.
What we did ask for, however, was an opportunity for the Muslim community to participate in the “free marketplace” of ideas. It is our belief that in its truest form, freedom of expression results in a lively debate among all interested parties — not just among those who play by their own exclusionary rules. If Maclean’s wants to publish articles alleging that many Muslims are “hot for jihad,” it has to provide an opportunity to respond.
This issue isn’t about attacking journalists or stifling free expression. It’s about ensuring that our media outlets provide a forum for open debate and argument. While we do not agree with Mr. Levant’s characterizations — and he may not agree with our position — the very fact that we can respond to one another in the same publication shows that some media outlets still value the showcasing of differing opinions. It is our hope that, as a result of these human-rights complaints, Maclean’s can join their ranks.
Absolute Liability of Corporations
When Areas of Law Intersect
The Re B.C. Motor Vehicle Act eluciated some interesting challenges in the intersection of different areas of law.
The court cited Joseph Eliot Magnet of the University of Ottawa,
The transposition of the administrative law principle to a constitutional context is problematic. In the administrative law cases, the issue of intent concerns the intent of a specific person. In the constitutional cases, the issue of intent concerns the legislature, an incorporeal body made up of hundreds of persons. It may be said that such a body, like a corporation, is a legal fiction and has no intention in the relevant sense. It would follow that legislative intent, in the constitutional setting, is a hollow concept.
A corporation could therefore be preclued from the protections in s. 7 of the Charter.
Company’s Freedom of Speech?
In Irwin Toy Ltd. v. Quebec, the respondant sought protection from s. 248 and 249 of the Consumer Protection Act,
Advertising for persons under 13.
248. Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.
1978, c. 9, s. 248.
Criteria of intent.
249. To determine whether or not an advertisement is directed at persons under thirteen years of age, account must be taken of the context of its presentation, and in particular of
(a) the nature and intended purpose of the goods advertised;
(b) the manner of presenting such advertisement;
(c) the time and place it is shown.
Irwin cited freedom of expression rights under s. 7 of the Charter. Dickson C.J. found,
We have already noted that it is nonsensical to speak of a corporation being put in jail. To say that bankruptcy and winding up proceedings engage s. 7 would stretch the meaning of the right to life beyond recognition.
As a result, corporations are generally assumed to be vicariously liable for the actions of its employees, but this liability can be extended further to primary liability.
Senior Directing Mind
R. v. Canadian Dredge & Dock Co. used the English identification doctrine, where a senior individual in a corporation can be metaphorically held to represent the mens rea and actus reus for a crime as the directing mind. Laskin C.J. stated,
Therefore, even in mens rea offences, if the court finds the officer or managerial level employee to be a vital organ of the company and virtually its directing mind in the sphere of duty assigned him so that his actions and intent are the action and intent of the company itself, the company can be held criminally liable. The wrongful action of the primary representative, by attribution to the corporation, creates primary rather than vicarious liability. The identity doctrine merges the board of directors, the managing director, the superintendent, the manager or anyone else to whom was delegated the governing executive authority of the corporation, and the conduct of any of the merged entities is thereby attributed to the corporation. A corporation may, by this means, have more than one directing mind.
Rhône (The) v. Peter A.B. Widener (The) elaborated on this further, establishing the requirements for a directing mind,
The key factor which distinguishes directing minds from normal employees is the capacity to exercise decision-making authority on matters of corporate policy, rather than merely to give effect to such policy on an operational basis…
[senior officer in this case] had certain decision-making authority… [and] important operational duties, [whereas] governing authority over the management and operation… lay elsewhere.
Directing mind in this case was found to be an employee given central authority that provides discretion, rather than necessity or tradition of duties.
Limiting Absolute Liability
Common Law Presumptions
Due to the challenges inherent to absolute liability offences, the Supreme Court provided that regulatory offences would be presumed as strict liability.
In R v. Sault Ste. Marie, the city was charged with allowing refuge to be dumped into public water ways of Cannon Creek and Root River. This pollution would be contrary to the The Ontario Water Resources Commission Act, R.S.O. 1970, c. 332, which at that time stated,
…every municipality or person that discharges, or deposits, or causes, or permits the discharge or deposit of any material of any kind into any water course, or on any shore or bank thereof, or in any place that may impair the quality of water, is guilty of an offence and, on summary conviction, is liable on first conviction to a fine of not more than $5,000 and on each subsequent conviction to a fine of not more than $10,000, or to imprisonment for a term of not more than one year, or to both fine and imprisonment.
Creating a Third Category of Offences
The case had been taken to the Court of Appeal, who stated that mens reus was required, which is the distinguishing feature between absolute liability and strict liability. Dickson J. eluciated this distinction in his judgement:
…there are compelling grounds for the recognition of three categories of offences rather than the traditional two:
1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event…
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
True criminal offences would be under the first category, and public welfare offences would be prima facie under the second category as lacking the required mens reus.
Public welfare and regulatory offences would not be considered absolute liability unless explicitly stated by the statute in question. Dickson J. indicated that an individual who hires a company that dumps pollution would not likely be liable, but a company or munipality might be.
Criteria for determining inclusion in the third category of absolute liability were:
- overall regulatory pattern adopted by the Legislature
- subject matter of the legislation
- importance of the penalty
- precision of the language
Application
The following year, the British Columbia Legislature created the Motor Vehicle Act. In 1979 the statute contained an explicit absolute liability offence for driving without a licence, irrespective of whether the driver knew of the suspension.
The constitutionality of this law was then challenged in the Re B.C. Motor Vehicle Act, and R v. Pontes as discussed previously.
These findings were importan because they established s.7 as substantive rights beyond produral rights of due process and beyond the intent of drafters of the Charter. It was later relied upon by R. v. Morgentaler to legalize abortion, and Chaoulli v. Quebec to challenge prohibitions against private health insurance.
Absolute Liability & the Charter
Principles of Fundamental Justice
The proof requirement for these offences is beyond a reasonable doubt, without any additional fault element.
In R v. Pontes, the defendant was convicted of driving without a licence, without knowing that his licence had expired. Ignorance of the law in this case was no excluse, and he was held to a strict liability of actus reus alone, without any necessary mens rea.
The majority decision stated,
…the absolute liability offence created by s. 94(1) and s. 92 does not contravene the Charter …no person is liable to imprisonment for an absolute liability offence, and that the non-payment of a fine will not result in imprisonment. Thus, an accused convicted under ss. 94(1) and 92 faces no risk of imprisonment and there is, accordingly, no violation of the right to life, liberty and security of the person under s. 7 of the Charter.
Because regulatory offences are not stigma crimes and do not bear the risk of imprisonment, they were not considered contrary to s. 7, which states,
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
As a result, the proof burden on the Crown for such offences is limited to the actus reus alone.
Ignorance of the Law
In Pierce Fisheries the accused was charged with having undersized lobsters contrary to the Fisheries Act.
But because the regulation contained no language such as “knowingly” or “wilfully,” this knowledge was irrelevant to Pierce’s violation and they were held liable. Offendors are responsible for knowing the law, especially pertinent regulations in their industry.
Cartright J. dissented in this case,
Applying the principle of construction of a statute which makes possession of a forbidden substance an offence, as laid down by this Court in Beaver v. The Queen, infra, to the words of the charge against the respondent, the express finding of fact that the respondent had no knowledge, factually or inferentially, that any of the lobsters on its premises and under its control were undersized necessarily leads to a finding of not guilty.
The challenge with the approach in Pierce is that a corporation would be liable even if taking reasonable precautions to avoid any violations.
