RSS FeedHow 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)
Canada Goes for Another Hockey Gold
Hot on the heels of the victorious Canadian women’s hockey team is the men’s team, which is aiming for its own hockey gold. The game against the rival United States promises to be an Olympic classic!
Beginning at 12:15 p.m. PST (3:15 p.m. EST), you can watch USA v. Canada online at CTV’s Olympics website. The site offers full HD streaming video, which is perfect for me, since I don’t have a TV. The link to the video is here.
And since this is a law blog, I’ll see if I can do a haphazard legal tie-in to end this post.
If you ever had any doubt that hockey was one of Canada’s true national sports — not just lacrosse — check out the National Sports of Canada Act, S.C. 1994, c. 16. The Act provides:
2. The game commonly known as ice hockey is hereby recognized and declared to be the national winter sport of Canada and the game commonly known as lacrosse is hereby recognized and declared to be the national summer sport of Canada.
Another sign that Canadians are obsessed with hockey: have a look at how many times “hockey” comes up on a CanLII case law search. I come up with over 7000 results, beginning with a case called Hockey v. Hockey from the BC Court of Appeal. You can’t get much more Canadian than that!!
Go Team Canada!
Stripping of citizenship, contd
Father was never charged with war crime, family says
The family of Helmut Oberlander says he was never a Nazi and he has not been charged by the federal government with any war crime.
Goblins crave to eat the Charter
The Abdelrazik affair exposed some of Canada’s poorly known but in-your-face draconian laws. James Yap of Osgoode Hall Law School wrote a fantastic post about the federal United Nations Act and the United Nations Al-Qaida and Taliban Regulations on TheCourt.ca. Go read it.
The new underclass
Who haven’t heard of immigration queue jumpers? The current federal government used this term when it shut down visa-free travel from the Czech Republic and Mexico. Federal officials blamed queue jumping refugee claimants. But if someone jumps the queue, it’s not refugees as much as it is temporary guest workers. And their biggest aider and abettor is Ottawa itself. Estimated 65,000 refugee claims were pending in 2008, but almost 192,519 foreigners came to Canada as temporary workers last year. A Toronto Star investigation revealed that many of them are vulnerable, abused, and prone to go underground, especially during a recession. The Canadian government wants to be in the labour supply business, but it’s not doing a good job.
The temp worker program lets employers select employees abroad if the federal labour officials certify a worker shortage in the employer’s industry. Today, most foreign workers go to farms, oil fields and into other low-skilled jobs, and many eventually end up in the underground economy. The current government in particular has let an unprecedented number of low-skilled migrants in Canada. Ottawa essentially acts as a giant recruitment agency that sizes up clients’ labour needs and fills them with people from foreign countries on condition that they go back home after two years. Foreign workers can’t switch jobs without the government’s permission. In Ontario and Alberta seasonal agricultural workers can’t join unions. And low-skilled workers can’t easily apply for permanent residence in Canada. After all, the idea is to bring in cyclical labour.
And cyclical labour they bring. Farms needs crop gatherers. Fast food joints need burger flippers. Energy companies need oil-sand workers. There are so many people in the world willing to work for much less than Canadians. Cheap labour, like any other cheap resource, can translate into lower costs across the production chain and lead to lower prices, economic growth, and general happiness. And the conventional wisdom goes that Canadians don’t want to do those jobs anyway. Temporary workers are also not supposed to strain our health care because they don’t grow old here. We have a constant supply of fresh, young, cheap labour thanks to the federal super recruiters in Ottawa. Right?
Wrong. The Toronto Star investigation revealed a widespread abuse of temporary foreign workers. Some employers take advantage of their weak bargaining power. Some employers refuse to pay their wages. Some pay much less than promised. Some fire workers without regard to their labour rights. Foreign workers often come from poor countries after borrowing thousands of dollars for the trip and middlemen’s fees. They feed their families who stayed behind. The law doesn’t let them switch employers easily. It’s not exactly a position of power in negotiating your job conditions. The Toronto Star report shows how many workers end up underground. They are the real queue jumpers, but who dare blame these abused people? Where they jump is not permanent residence in Canada but permanent limbo. They jump to a life of fear of authorities and working underground. Debts, hungry families overseas, and false hopes stop them from leaving.
They form a massive underclass—desperate and without rights—pushing many of them into crime. We have traditionally had two classes of people who lived in Canada: citizens and permanent residents. Their rights are similar but permanent residents lack some important rights that all citizens enjoy. Today we are adding a third class and even a fourth class way down the social ladder: the temporary workers with few rights and the temporary workers gone illegal—with almost no rights. Economic cycles come and go, but marginalized migrants will stay.
The government should get out of the labour supply business. If a job is low-paid, it doesn’t mean that Canadians don’t want to do it. It means the job must be better paid. And the market will take care of it without Ottawa’s bureaucrats crunching numbers in their spreadsheets. By importing massive cheap labour the federal government discourages higher productivity and wages. Unless a job involves killing people, there is hardly a qualified Canadian who wouldn’t take it for a fair wage. And if there are no takers, the job doesn’t belong in Canada.
The immigration policy should target the real issue instead of tampering with the labour market. And the real issue is the population growth. We desperately need more people in Canada, and the only realistic source is immigration. But we need immigrants with full rights, who are proud and secure and who understand and value the Canadian society. About 900,000 of potential permanent residents and future citizens are languishing in the huge backlog. In the meantime, Ottawa tempts hundreds of thousands of the world’s vulnerable to jump the queue and end up as marginalized migrants in Canada’s cities.
The Ocean Lady: Rethinking “Illegal” Migration in Canada
The recent arrival by boat in Vancouver of 76 Sri Lankan Tamil men has triggered heated debate about Canada’s refugee system. On October 28, the Liu Institute for Global Issues at the University of British Columbia held a forum on the topic, entitled “The “Ocean Lady”: A New Challenge of Illegal Migration on Canada’s West Coast?” One of the panellists, Daniel McLeod, who is duty counsel for the migrants, called these men “classic refugees,” because of the persecution they face in Sri Lanka. “It’s young Tamil men in Sri Lanka who are most at risk,” he said. He also observed that though “the Liberation Tigers of Tamil Eelam at their peak had probably 1500 to 2500 soldiers,” there are currently a quarter of a million Tamils awaiting security clearance by the Sri Lankan government in internment camps in the northern parts of the island.
McLeod, who is also an instructor in Refugee Law at UBC, noted that Canada is a signatory to the 1951 UN Convention on Refugees, which states that refugees cannot be penalised for entering the country through illegal means. Canada’s acceptance of the Convention was triggered by its refusal in 1939 to admit the St Louis, a boat containing 907 Jewish refugees, who were forced to return to Germany, where a third of them were killed in concentration camps. However, host and fellow-panellist, Benjamin Perrin, Assistant Professor at UBC Law and Faculty Associate at the Liu Institute, said that because the 1951 Convention only addresses the criminalisation of the entry, “it does not preclude countries from exercising detention where the identities of the individuals are uncertain or there are undetermined security risks.”
McLeod cautioned against assuming the men were Tamil Tigers. “It is common for people who have been forced to work as labourers for the Tigers, to be rounded up, arrested by the army, police, or the special task force – which is a police commando force – and simply disappear,” he said. When describing the men, nearly all of whom are currently confined in a Lower Mainland jail, McLeod said, “Some of them are students, some are farmers, some of them are clerks, office workers. They are all very scared.”
In Canada the acceptance rate for refugees is approximately 47%. In comparison, according to Andreas Schloenhardt, Associate Professor from University of Queensland, in Australia, that number is 80%. (However, Australia has a very different immigration system, which involves using whole islands far from the mainland as detention centres, so these numbers may not be analogous.) Yet the 2007 acceptance rate specifically for Sri Lankans in Canada was 97%.
In 1986, local fishermen came to the rescue of 154 Sri Lankans found floating off in lifeboats off the coast of Newfoundland. Those people were not subjected to what McLeod called “the political frenzy that’s occurring today,” suggesting that in the intervening two decades Canada’s policing of its borders has become progressively more exclusionary and reactionary. This fear was solidified on November 2, when Immigration Minister Jason Kenney, after accepting the fewest refugees in 10 years, dramatically cut the 2010 target number of refugees to be accepted by more than half. Opposition MPs assert that “by steeply dropping the targets, refusing to appoint Refugee Board members for 2 years, cutting $4 million in the department and allowing for board appointments not based on merit, Harper’s Conservative government is deliberately creating a crisis in the refugee system. The crisis is then used as an excuse to bring in draconian measures to close the door to the most needy and vulnerable.”
At the lecture, Perrin claimed that the focus on the “human interest story” of the 76 men, while legitimate, shifts attention away from an analysis of the means by which refugees move illegally between countries. He argued that “Canada must take action to discourage illegal migration and disrupt migrant smuggling operations where they do exist.” Further, Canada is a party to the 2004 UN Protocol against the Smuggling of Migrants by Land, Sea and Air, which, he said, “calls for [migrants] not to be criminalised, but to be treated humanely. But at the same time, it does not give them the right to temporary or permanent residence in Canada simply because they are smuggled.”
When one student then questioned him about the language used to describe the men, specifically the term “illegal migrant” (which was featured in the panel title), because of the way it implicitly criminalises the men, Perrin responded that “the title of the presentation has a question mark at the end of it, which was very deliberate.” Another audience member had a query about how that kind of vocabulary negatively affects media coverage. Perrin responded, “I think it’s important that before there’s been an impartial determination of the legal status of these individuals, that our language reflect that. So I’m not calling them refugees right now because I don’t know if they are.”
Perrin maintained that “there are advantages to cooperating with other countries, not just the source countries, but also other countries along the migrant smuggling chain,” because this would assist Canada in “creating proactive responses to protracted refugee situations.” One reporter asked, “How are we to trust the Sri Lankan government if they say these people are members of a terrorist organisation? [...] How do you trust a government which is treating a minority as harshly as them?” McLeod answered, “I hope we’re not going to trust the Si Lankan government to make that determination for us. There are a number of ways that Canada Border Services Agency can obtain information in normal ways.” These include taking fingerprints to run through international police records and analysing accents to determine where in Sri Lanka the men are from. However, the RCMP has already begun collaborating with the Sri Lankan government to identify the men.
“There are 16 million refugees worldwide as of June 2009. There’s another 26 million internally displaced persons, who don’t count as refugees,” said McLeod. “Hundreds, if not thousands, of irregular migrants are reported dead or missing every year,” said Perrin.
—–
A previous version of this article first appeared in Canadian Lawyer. This article was last modified on Nov 5.
Student-teacher love can be a serious crime in Canada
Disclaimer: I am not a lawyer (I am a law student). The text below contains only my understanding of the applicable law. It has nothing whatsoever to do with your particular situation. Do not assume you can make any decisions based on this text. I do not intend this text to apply to anyone’s situation. This text is not legal advice. I am not qualified to give legal advice anyway. The purpose of this text is to encourage debate and create awareness of certain criminal offences. Please consult a lawyer if you need legal advice or help with your particular situation.
Our society is obsessed with sex. Not just in a dirty sense. We are probably as much into sex as we are afraid of it, and one proof of our fear of sex is in the criminal code. Sexual assault, sexual interference, sexual exploitation, invitation to sexual touching are serious crimes in our legal system. We want to punish sexual offenders because we want to protect ourselves and especially our women and children. Traditionally, the predators have been men, but more and more often the police arrest women for sexual crimes. I wrote about a case in Georgia where a trial court gave a female teacher ten years for a mutual love affair with a girl-student. The girl reached the age of consent but the court ignored it because the older woman was her teacher. A few days ago, an Ontario judge sentenced a female teacher for a love affair with a student. If the older women didn’t plead guilty, this case would be almost identical to the case in Georgia, except for the brutally harsh sentence. But the intricate details of the Ontario case are different enough to make this story a lesson for all adults—not just for teachers.
Litigious
Ottawa to launch Supreme Court appeal of Khadr ruling
The federal government will go to the Supreme Court of Canada to appeal a court order to bring Omar Khadr home from a U.S. military prison, according to a CBC report.
Access to justice and elected judges (conclusion)
(Part 1)
So anyone demanding the election of judges should understand this: there is a conflict between accountability and impartiality. It’s often hard to get the judges both to be independent and to answer to the people. For example, when the government throws a citizen to the wolves in a foreign country, an independent judge will lawfully award her damages. A judge worried about re-election may cave to his sense of the mood among the majority of taxpayers.
When judges apply straightforward law to straightforward facts, the accountability argument is especially weak. The law is an expression of the majority’s will. When legislatures pass laws, their straightforward applications are obvious. We expect judges to apply such laws almost mechanically. In these cases, judges are pretty much delegates of the legislature. They don’t make any law so they should not be accountable beyond the basic professional standards.
And don’t forget the Constitution—the super law. Its very purpose is to protect some principles against the majority’s will. In Canada, these principles include the makeup of our political system and the fundamental human rights. Judges can strike federal laws when they overstep the constitutional bounds. This is an awesome power of the judiciary. It usually uses it against the majority, so how can anyone expect it to be accountable to the majority at the same time?
When judges apply ambiguous non-constitutional rules, the accountability appears more important. The legislature, either intentionally or accidentally, leaves gaps in the law. It is up to the judiciary to choose one interpretation of the law when some new, unusual dispute finds a hole in the rules. Trial judges have another important power that may need accountability. They are free to decide what facts to take as the truth and what facts to ignore after hearing both parties. Sometimes, juries of ordinary citizens do this job, but in Canada usually judges “find facts”.
But even when accountability is reasonable, it is practically too difficult to have. Judges are different from politicians. Majorities have a right to call the government to account on every political decision. But as we just saw, citizens can claim a right to scrutinize only some judicial rulings. This brings difficulty and uncertainty. Most people do not have legal training. Citizens will have a hard time telling decisions open to their scorn from untouchable rulings. Using more government resources to explain or filter judicial decisions will overburden a system that is already bursting at the seams.
The good news is there are alternatives to the judiciary’s direct accountability through elections. First, we can choose judges very carefully. The Parliament is free to set standards for judicial selection. Second, we can monitor the judiciary for obvious abuse. The police are free to investigate judges suspected of crimes. The Crown is free to charge them if there is enough evidence. Third, we have the appeal route when judges make errors of law. It’s a time-tested but expensive mechanism. Finally, perhaps we should have more juries to make fact-finders more representative of the general population. Unlike the US, Canada has very few jury trials. When a jury makes a verdict, it’s one fewer judge to accuse of being unaccountable to the people.
There are good reasons to demand election of our judges. But the reasons not to are even better. In conclusive cases and in many constitutional disputes the judges should not owe any accountability to the majority. Telling the difference could be too costly for the public, but any mistakes can undermine the administration of justice or the Constitution. Judges protect us not only from illegality but also from ourselves. It’s a huge role. Much accountability is already there through law enforcement and regulation of the bench. If that’s not enough, we could use juries more often. Beyond that, we will have to trust our judges. They have usually been doing a good job anyway.
Abdelrazik seeks justice
Spy watchdog to probe CSIS conduct in Abdelrazik case
The probe pulls the agency closer to the centre of the Abdelrazik controversy. A federal judge, in ordering Ottawa to bring Mr. Abdelrazik home from Sudan, concluded CSIS was “complicit” in his detention. Mr. Abdelrazik has offered chilling accounts of his treatment by CSIS agents in Canada and during his imprisonment in Sudan.
Another Black Canadian stuck abroad
The Toronto Star reports Suaad Mohamud Haji, a woman from Toronto, cannot leave Kenya where she was visiting her sick mother. Kenyan officials allege she does not look like her Canadian passport photo. The photo is more than four years old. Her son, ex-husband, and a neighbour, all in Toronto, spoke with her on the phone and recognized her voice.
Ms. Haji was detained on May 17 when she tried to board her flight back home. She is out on bail now with the next court hearing due on July 21. According to Ms. Haji, she tried to get Canadian consular officials’ help: ”I phone them three times again today and nobody calls me back.” Foreign Affairs in Ottawa said that they are “working with Kenyan authorities to verify the identity of the individual.”
What exactly they are doing and why it has taken almost six weeks, the Foreign Affairs spokesman did not say, according to the Star.
I don’t know what to say to Ms. Haji, stuck in Kenya.
Happy Canada Day?
(post sponsored by advicescene.com)
What country has the strongest civil liberties?
There is a lively discussion on Slashdot about which countries are best for civil liberties and privacy. It all started when someone from the UK said s/he was unhappy with growing restrictions and wanted to emigrate.
It struck me how little Canada came up in the discussion. Why? We have the Charter; reasonable, independent, strong courts; decent privacy laws; evidence of the judiciary keeping the government on its toes. I guess the world just doesn’t know Canada that well.
Do you have other ideas why Canada is not mentioned? Any other countries you think are better?
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