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2nd When Law and Hate Collide Pan-European Hate Crime Symposium
Safe injection facilities and arbitrary government decisions
I often talk to friends or strangers about law. I remember a debate I had with someone once about the government. Can it make arbitrary decisions? I said yes, and he said, rather indignantly, no. His logic was that arbitrary means capricious with a tinge of tyranny. Doesn’t our democratic government respect the rule of law and make decisions based on reason?
But in law, arbitrary simply means unconnected to any legitimate objective. This is what my friend had a difficulty with: that government, even with a democratic mandate, doesn’t have complete discretion. And last Friday, the Supreme Court of Canada issued a ruling that criticized the federal government for one such arbitrary decision: not renewing an exemption from criminal drug laws for the Insite safe injection facility in Vancouver.
Insite, suported by the province of British Columbia and the city of Vancouver, gives drug addicts a clean and safe place to inject under medical supervision. They would inject anyway, out on the street, probably with a used needle and in public. Addiction is a disease. You know when the Chief Justice’s reasons begin with a description of drug addicts drawing water from puddles to inject heroin, she is going to have a strong opinion about the government’s decision to block Insite.
The courts have held that there are only two goals in the Controlled Drugs and Substances Act (CDSA), a federal law that makes using drugs a crime: public safety and public health. Any government decision under this law that doesn’t serve either of these goals is arbitrary. For example, using the CDSA to promote marriage is arbitrary. A famous example of an arbitrary government decision was revoking Frank Roncarelli’s liquor license because he gave money to Jehovah’s Witnesses.
In the years of litigating the Insite case from trial to the Supreme Court, government’s lawyers failed to prove any harm to either public safety or heath from Insite. But the benefits to at least public health and quite probably to public safety are obvious.
The CDSA gives the federal Minister of Health the power to exempt from criminal liability. Using this power without a connection to either public health or public safety is arbitrary. There is no absolute discretion for the government.
Insite originally got the exception from drug laws so doctors and nurses wouldn’t be arrested for ensuring addicts don’t kill themselves. The federal government used its power under the CDSA to deny that exception out of the blue despite the evidence of Insite’s benefits for both purposes of the CDSA. That’s arbitrary.
Of course, we know that governments don’t usually waste their powers on random choices that have no purpose. Government decisions often serve political constituencies. In the Supreme Court, federal government lawyers failed to give one good reason to counter expert reports and other evidence that Insite was beneficial for public health and safety—two purposes of the CDSA. But one argument government lawyers made is illuminating: addicts shouldn’t get an exemption because its their own fault they are addicts. Is this a hint at the real reason for trying to block Insite: the same reason why, in the past, some governments tried to block HIV research funding and abortion services?
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Squeezing Blood From A Stone: No Onus on Impecunious Offender to Prove Inability to Pay Fine in R. v. Topp
In the recent Supreme Court of Canada (“SCC”) decision in R. v. Topp, 2011 SCC 43 the Crown attempted to do the impossible and get blood from a stone. The metaphorical stone in this case was John Phillip Topp, a defendant sentenced to five years in prison for his conviction on 16 counts of fraud and attempted fraud under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). Topp had defrauded Canada Customs of $4.7million through his brokerage business. The Crown sought to have a fine of the same amount imposed on Topp in addition to imprisonment, but Baltman J. of the Ontario Superior Court of Justice refused to impose any fine whatsoever because she was not persuaded that Topp had the ability to pay pursuant to s. 734(2) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“CCC”). Both the Ontario Court of Appeal and the SCC upheld Baltman J.’s decision not to impose a fine due to Topp’s inability to pay the fine.
Summary of the Law and the Crown’s Argument
Subsection 734(1) of the CCC provides that a court may fine a convicted offender in addition to imprisonment subject to ss. 734(2). Subsection 734(2) provides,
Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736 (emphasis added).
The Crown argued that ss. 734(2) should be interpreted to require the defendant to prove that he or she is unable to pay – in essence a reverse onus. This argument was made because the Crown could not track the whereabouts of the $4.7 million and Topp could not explain what happened to the money. Fish J., writing for the unanimous SCC, rejected the Crown’s argument because the legislative intent of requiring that a defendant be able to pay was to avoid imprisoning individuals for failing to pay fines. As well, the wording of ss. 734(2) did not create a reverse onus for the defendant.
While there is no formal burden on the Crown to prove a defendant’s ability to pay, in practice the former will need to marshal evidence of the latter’s ability to pay. Fish J. explained that, “as a matter of law, the court cannot impose a fine unless it is satisfied [on a balance of probabilities] that the offender is able to pay. This necessarily involves an affirmative finding based on the evidence and information properly before the court pursuant to ss. 720 to 724 of the Criminal Code. Absent a sufficient basis for that finding, the party seeking the fine cannot legally succeed.” Evidence must be marshaled otherwise a sentencing judge cannot make a finding that a defendant is able to pay. Similarly, while there is no formal burden on a defendant to rebut the evidence marshaled by the Crown, the defendant is free to present evidence on his or her inability to pay. Read more
The death of Troy Davis
On September 21, 2011, at 11:08 pm Eastern Daylight Time, Troy Anthony Davis was declared dead.
Cause of death: lethal injection. Administered by: employees of the state of Georgia. Legal justification of homicide: a court order. Grounds for the court order: Troy Anthony Davis’s murder conviction.
Societies punish crimes for specific reasons. Section 718 of the Canadian Criminal Code is a good summary of purposes of criminal sentencing:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Death penalty doesn’t rehabilitate or deter the offender, doesn’t compensate anyone, and doesn’t make the very dead offender feel any responsibility for or acknowledge anything. It should be pretty clear by now that it doesn’t deter others too. It does separate the offender from society, so to speak, but usually prisons do that job perfectly.
But denounce, it does.
So the only true reason for death penalty is denunciation. All other reasons either do not exist or do not require death penalty. Societies, at least rational societies, kill only to denounce, to show contempt for the crime, to assign a special measure of gravity to the illegal act. There is no other reason. The only reason for death penalty is really a symbol.
No doubt, denunciation can be a valid reason. But let’s see what price we pay for denouncing by death.
You can look up Troy Davis yourself and find out that his conviction was based on eye-witness testimony much of which was later recanted. I probably don’t need to explain why this creates a possibility that he was innocent. This possibility is also called reasonable doubt. And the supreme value of our society is preservation of innocent life. You would think the courts would choose the chance and the possibility of preserving innocent life over a chance to denounce murder. After all, no one would think more kindly of murder if Troy Davis got a life sentence or if he was released based on reasonable doubt in his guilt. And there is another value the courts would have protected if they spared Davis’s life: fairness. The more opportunities an accused person has to clear his name, the more fair our legal system is.
But the courts chose a different value over all the others: finality. Its purpose is to unclog our court system and to give litigants some sort of confidence that their case is not going to be reopened. This value is very important in civil litigation: hence, limitation periods, res judicata, etc.
In criminal law, finality serves victims and their families and the public purse to some extent. It doesn’t usually serve the accused, and it certainly didn’t serve Troy Davis.
The courts chose finality for the victim’s families and the public purse over fairness to Davis and preservation of his potentially innocent life. You decide if it was the right choice.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Review of Dennis Edney’s Lecture, “The Rule of Law in an Age of Terror”
“Human rights have a dysfunctional relationship with justice. The language is certainly beautiful, but it’s all dressed up with nowhere to go,” charged Dennis Edney in a scathing lecture at the Faculty of Law at UBC on September 15.
Edney worked from 2004 to 2011 on Omar Khadr’s defence against charges stemming from the July 2002 firefight death of a US soldier. Khadr, who is Canadian, was 15 at the time. American forces interrogated him for three months in the US-operated Bagram Theatre Detention Facility in Afghanistan, before transferring him to Guantanamo Bay, where he remains. In 2005, Khadr’s chief interrogator from Bagram, US Sergeant Joshua Claus, was found guilty of offences relating to the routine torture and homicide of Bagram prisoners. Claus received a five-month prison sentence. He testified at Khadr’s military trial in 2010.
In April 2009, the Federal Court ruled that Canada was complicit in the US’s torture of Khadr and ordered Ottawa to seek his repatriation. The Federal Court of Appeal concurred, but the Supreme Court ruled 9-0 that though Canada was violating Khadr’s human rights, it was not obliged to seek his repatriation.
In October 2010, after insisting on his innocence for years, Khadr pled guilty in a military trial to terrorism-related offences, in exchange for a promise from Canada to repatriate him by October 2011 to serve the rest of his prison sentence in Canada. On September 20, the Conservatives tabled the controversial omnibus Bill C-10, which adds “additional criteria” to decisions about “whether or not to allow the transfer of a Canadian offender back to Canada to serve their sentence.”
Shortly after the trial, Edney declared that Khadr “would have confessed to anything, including the killing of John F. Kennedy, just to get out of this hellhole” and that if he had refused, Khadr would have been faced with “an unfair [military] trial based on evidence that would be inadmissible in a real court.” On Thursday, Edney said the detainees are entitled “to all kinds of international protections, but our governments are not asking for them. And by not asking, we become complicit.” There are nearly 800 prisoners in Guantanamo, but only 4 have been charged and given a trial. Detainees cannot see the evidence used against them.
In his lecture, Edney denounced the Canadian government for perpetuating a culture of fear in the camp’s defence. Edney stated that “since there has always historically been terrorism, and since there will always be terrorist threats, this war on terror – if allowed to be one – is unlike any other, because it is never-ending.” Thus, last decade has been marred by “habeas corpus being abandoned, secret courts being created to hear secret evidence, guilt inferred by association, torture and rendition nakedly justified.”
“I went into Guantanamo Bay as a lawyer and I came out as a broken father,” said Edney. “I never thought that in my lifetime I would go to such an evil place and see such evil being done.” Of the infamous cages, Edney said that “people go into those cages thinking they’re having a holiday in there.” He drew attention to Camps 5, 6, and 7. The first two are “designed for enhanced interrogation tactics: torture.” He said about Camp 7 that “We are not allowed to talk about it. We have prisoners in there who came from Europe, about a year and a half ago, and they’re going to be there forever, because there’s no one there to help.”
Edney discussed the 9/11 witch hunt, in which “the US government detained hundreds, if not thousands, of people of colour on the suspicion of terrorist activity, some of them up to a year, all without charges.” He continued that “almost none of those individuals were found to have been in any way connected with terrorism. Yet many continue to be held without being formally charged with any crime or immigration violation.” In this way Guantanamo “provides powerful evidence of how America and the West are making war on terror synonymous with the war on Islam. No white Anglo-Saxon goes to Guantanamo Bay. Any American picked up for terrorism offences gets due process in a federal court system in New York.”
One audience member suggested that the camp must serve some purpose, because otherwise US President Barrack Obama would have followed through on his promise to shut it down. Edney responded that the camp primarily functions as “an important propaganda tool.” He argued the Obama administration has in fact “systematised” the culture of torture normalised under George W. Bush, for instance by disallowing victims of extraordinary rendition from suing Washington for torture suffered overseas.
Edney was also critical of “lazy” media and academics who have persisted in “slotting events into a sort of juicy clash of civilisations story,” as exemplified by mainstream media coverage of Anders Behring Breivik’s terrorist attack in Oslo. He killed 69 people in July, avowedly to protect Europe from Muslims. Edney said, “as soon as the bomb went off, media organisations began reporting on jihadist organisations.” This, he said, “fit perfectly the story we have all been telling each other since 9/11 that who else, who else could be so hateful, so crazy, so disrespectful of life but Muslims.” He pointed out that though Breivik is a white Norwegian Christian, “we don’t hold Christians or conservatives or liberals responsible for Brievek’s despicable acts.”
He said that “since September 11 2001, race, ethnicity, and religion have become proxies for suspected terrorist activity, which in turn has become a pretext for the application of Canadian immigration laws in an unequal manner towards Arabs, South Asians, Muslims and so on.” In an apparent nod to Bill C-4, the anti-refugee bill that the Conservatives tabled on Tuesday despite widespread condemnation, he noted that “we just have to listen to media descriptions coming out of Ottawa when we talk about refugees today. We call them queue jumpers and potential terrorists.”
Edney also expressed anger at the public’s willingness to be lulled into complicity. He described the transfer of the prisoners to Guantanamo “in rows in aircraft, hooded and shackled for transportation across the Atlantic” as similar to eighteenth century slave ships. He maintained that for “the watching world, no knowledge of international humanitarian conventions is needed to understand that what was being witnessed was simply unlawful.” He blamed public apathy for “allowing anti-Muslim sentiment to become part of our mainstream conversations.” He said, “I say to you we cannot tackle manifestations of intolerance, unless we learn and understand how the constant use of fear pervades our everyday life, and how that fear is being used to influence how you and I think and how you and I act. It’s that same manipulation of fear that has allowed military escapades into countries beyond those who bombed the twin towers. It is that same message that has been exploited by participating countries to reduce civil liberties and infringe upon human rights by allowing such places as Guantanamo Bay to exist.”
The need for action had been a prevailing theme throughout the lecture. Edney returned to it at his lecture’s close: “Not only does it [Guantanamo] continue to exist, they continue building it. Guantanamo is going to be there for a long, long time, unless you do something. Unless you really do something about it.” He concluded that “the only crime equal to wilful inhumanity is the crime of indifference, the crime of silence, the crime of forgetting.”
In that vein, we cannot afford to forget that Guantanamo Bay’s precedents in the West include Canada’s own internment camps, built in BC expressly to detain Japanese-Canadians during WWII. Similarly, Bill C-4’s predecessors include the Chinese head-tax policy.
In Memorandum: Wendy Babcock (1979-2011)
Law students like to think the have it rough. But some of us have it rougher than others, especially those of us that took the less traveled road to law school.
This evening The Star announced that Wendy Babcock was found dead yesterday in her home. Wendy would have entered her third year of law school at Osgoode Hall this Fall. She gained notoriety given her background as a homeless teenage prostitute (she would say “sex worker”) before entering law school.
Third-year students expressed frustration today after Toronto area articling position offers closed when many were still waiting for a job. Wendy recently asked me whether she should consider changing her name for law firm applications, because she was apprehensive about what law firms would think about her background. The Eye Weekly once did a piece on her entitled, “All that she can’t leave behind,” and I responded that her experiences were what made her special.
Knowing the advocacy work that I’ve been involved in she also questioned my career path, asking me why I wasn’t practicing human rights law.
Wendy will live on in memories, and through the social media footprint she’s left behind (her “memoranda”). Coincidentally, I just viewed this TED video earlier today:
Here are some of the sites you can find out more about Wendy:
Wendy Babcock - a site created post-mortem by her friends
And finally, here is her last note posted on Facebook, giving us some insight into a controversial subject currently being deliberated by the Supreme Court of Canada in Bedford v. Canada:
Case Comment – Gomboc Decision, 2010 SCC 55
Here is a link to my website for a case comment on the Gomboc that will be published in an upcoming issue of RegQuest.
Enjoy the reading.
Niqab, Sex Assault, And The Court: An Examination Of R v NS
In a unanimous decision in October 2010, the Ontario Court of Appeal affirmed that a sexual assault complainant may wear a niqab, a Muslim facial veil, while testifying. The Muslim Canadian Congress had intervened on behalf of the two accused men who had requested the order that the complainant remove her niqab. Upon the judgement’s release, Tarek Fatah, founder of the MCC, argued that the decision made “a fool of the Canadian judicial system and values of gender equality”. In fact, the court had paid careful attention to balancing the witness’s freedom of religion and the accused’s right to make full answer and defence. To date, Fatah is perhaps the only person to so openly argue that allowing a sexual assault complainant to testify in front of her alleged attackers in the clothes in which she feels safest is a denial of gender equality. For some context, it is worth noting that Fatah has long been a vociferous advocate of a total ban of the niqab in Canada. His response to attempts in Quebec to ban the niqab was to proclaim, “I welcome the rescue of all Muslim-Canadian women.” The wholesale paternalism of his language is revealing: to the extent that Fatah wishes to counter gender inequities, his position has persistently emerged from a patriarchal perspective that infantalises Muslim women by denying their agency in making sartorial and religious choices for themselves, even such highly contested choices as the one to wear niqab.
To be sure, generalised public discomfort around the niqab did inform most mainstream debate about the decision. However, in this paper I want to shift the discussion away from the Huntington-esque clash-of-civilisations characterisation advocated by Fatah to a more considered analysis of both the specific reasonings and the broader implications of the judgement. I argue here that the judgement actually signals a substantive attempt by the OCA to address some of the systemic inequities that entrench the pervasiveness of gendered violence in society.
FACTS AND HISTORY
The facts of the case are distressing, but not atypical for sexual assault cases. The complainant, N.S., alleged that between the ages of six and 11 she had been repeatedly sexually assaulted by her uncle and her cousin, the accused. In 1992, when she was 16, N.S. disclosed the assaults to a teacher, but the accused were not charged until 2007.
In 2004, as part of her practice of Islam, N.S. began wearing the hijab, a headscarf, and niqab, a veil that covers her face, whenever in the presence of males who are not her direct relatives. At the preliminary inquiry in 2008, after electing trial by judge and jury, both accused men sought an order that would require N.S. to remove her niqab before testifying. The preliminary inquiry judge ruled in favour of the accused. Read more
Barbarous Lugs in a liquor-fuelled stupidity
See here for a summary of the facts and the ruling
Julian Assange: Why the world needs WikiLeaks
Stacy Bonds Beaten, Stripped by Ottawa Police
James Morton gives the backdrop in The Ottawa Citizen:
The facts of Bonds’s treatment bear repeating. She was walking on Rideau Street in downtown Ottawa. She was neither drunk nor behaving inappropriately. The police stopped her and asked her name; she provided it.
After checking her name and finding nothing, the police told her she could go on her way. Bonds, as is her perfect right, asked why she had been stopped in the first place.
In response, the police arrested her for public intoxication and handcuffed her. As Ontario Court Judge Richard Lajoie later held, Bonds was not drunk. Once Bonds was taken to Ottawa Police headquarters, the judge noted that she was anything but “violent or aggressive.”
The full video is also available at The Ottawa Citizen.
Bringing Animal Rights to the Forefront of Correctional Services Reform
“Until we have the courage to recognize cruelty for what it is; whether its victim is human or animal, we cannot expect things to be much better in this world…we cannot have peace among men whose hearts delight in killing any living creature. By every act that glorifies or even tolerates such moronic delight in killing we set back the progress of humanity.”
-Rachel Carson
The sentencing of Anjalo Abeywickrema is an interesting one: he will have to go to jail for 4 months for his crimes and a 5 year ban on owning a pet.
But should if at all an individual go to jail for harming other creatures? Perhaps it is because people sense that an injustice has taken a place. A defenceless creature has lost its freedom and liberty to life.
I used to ask myself, “Why do some groups like PETA put resources towards better treatment of animals when there are millions of their fellow humankind suffering from poverty, environmental catastrophes, and war?”
My dad one day explained to me, “Son, when any creature suffers in this world, all of us suffer the consequences of that injustice.” I think his statement was a criticism to insensitivity towards injustice in any form that may take place.
I would argue that all social justice issues are inter-linked. In fact, I am optimistic that many sources of injustice can be solved with the same tools. In order to avoid the suffering of an animal we must investigate the sources of injustice. Are we as human beings genetically engineered to cause harm onto other creatures, or are we socialized? If we area socialized, then perhaps we can change that socialization in order to have better animal owners in the future.
When a human goes to jail for causing harm to his animal, people start to speak of the action of unnecessary pain. This increases sensitivity. When we start to talk about causing pain, we may even formulate solutions such as access to education and prevention instead of prosecution. Should we just put people in jail and throw the key away?
Historically, Canadian Criminal Law has functioned retroactively. In other words, someone like Abeywickrema acts with the intention of harming others in a way that is prohibited. Consequently he was punished by the Legal system. My question is, what proactive role if any should the Law and Legla professionals played in the past in educating the public regarding what is acceptable and what will send them to jail. Why not identifying the sources of sadistic behaviour?
I can tell you that as an immigrant, my family and I know no greater treasure than freedom. We travelled the planet to find a place where we can be free to speak our mind, wear the clothes we want, and many other freedoms that people take for granted. Perhaps it is time for the Law to teach people why we should not take our freedoms for granted. When an individual goes to jail to be “corrected” as the name of the government department foreshadows he/she does that at the cost of freedom and liberty: to my family and I, this is a heart breaking punishments because we come from a place where their Law has made the whole country feel like a jail most of the time!
I want to ask what deep failures in society have helped create an individual like Anjalo Abeywickrema. What kind of parenting; what kind of social and financial context; who educated this individual regarding his rights and how he can protect his liberties. Perhaps the kinds of behaviours that is acceptable for an animal owner? Despite the fact that people do have a choice in how they behave, this choice I would argue is always affected by social context, physiological stability, and many other variables and that is why the Law and Legal professionals need to be proactively involved in educating our communities.
My suggestion for the reform of “Correctional Services” comes from the Middle East. An interesting interpretation of Islamic Sharia Law is that people can only be punished harshly when they live in an almost perfect community without considerable social disparity. The Islamic community would have a role in socialization and identification of individuals who are in need of guidance.
In conclusion, when we are sensitized to the pain of an individual dog, we can no doubt become more sensitized to the deep social roots for the criminal’s actus reus and mens rea in the crime that he has committed. I would add to the famous saying by Ghandi “An eye for an eye makes the world go blind;” if someone has weak eyesight, let’s give him/her glasses before he falls into the ditch.
