RSS FeedFormer NHL’er Ramage Has Appeal
Former St. Louis Blue and Toronto Maple Leaf has had his second day in court. This time to appeal a conviction that led to a four year sentence for Impaired Driving Causing Death in connection with the accident that claimed another former NHL’er, Keith Magnuson.
The appeal will focus around two specific issues:
1. Was Ramage’s Charter rights violated through the collection of his urine at the hospital?
2. Should the court find that they were not violated, is the four-year sentence imposed by the Ontario Superior Court too harsh?
The court appears to be already leaning toward reducing the sentence through the words of Justice David Doherty who indicated
I think it’s fair to say we’re all concerned about the length of sentence.
To me this is an interesting case and one that affects me personally. I worked with many (if not all) of the officers involved in this case, however, this specific incident was before my time. No police officer likes losing a case because of an error that they committed (i.e. Charter breach), however, although the defence has suggested the officer wilfully breached Mr. Ramage’s rights. It is more likely the officer was acting in good faith with respect to the investigation.
But this begs the question. If an officer, who acting in good faith, breaches an accused person or suspect’s rights, in situations such as this, is justice better served in upholding a conviction or upholding a what would ultimately be a minor Charter violation.
You may wonder why I say minor? Because ultimately, although a breach may have occurred, a warrant surely would have been granted to obtain bodily fluids.
Discuss.
Canadian Charter vs. Olympic Charter
Vancouver Sun » “The IOC is accountable to no one — as female ski jumpers now know“:
When the B.C. Court of Appeal tossed out the complaint from the female ski jumpers last week, it also clarified who actually calls the shots regarding both the 2010 Winter Games and the Olympic movement.
Not the host governments of Canada, B.C. and Vancouver. Not the Vancouver Organizing Committee or Vanoc. Not the taxpayers who are helping to underwrite the Games to the tune of hundreds of millions of dollars.
“The ultimate governing authority of the Olympic movement,” wrote the trio of appeal court judges, “is the International Olympic Committee (IOC), a non-governmental not-for-profit organization with headquarters in Switzerland.”
[...]
But no one should have any illusions about their role in the Olympic scheme of things. “All of these organizations are under the supreme authority of the IOC.”
Under the supreme authority of the IOC. Has an unmistakably autocratic ring, doesn’t it? The judges didn’t coin it. The phrase is right there in the Olympic charter.
In terms of what that authority means here in B.C., a lower court found earlier this year that notwithstanding the presence of a government-appointed board, Vanoc is under the “day-to-day control” of the IOC.
“Vanoc did not make the decision to exclude women’s ski jumping from the 2010 Games,” a B.C. Supreme Court judge ruled. “Vanoc did not support that decision. Vanoc does not have the power to remedy it.”
[...]
That finding cleared the way for the judges to rule that the anti-discrimination provisions of the Canadian Charter of Rights and Freedoms are not engaged by the circumstances in this case. The Charter applies to “all matters within the authority of parliament (and) to the legislature and government of each province.”
The court found that the “supreme” IOC is beyond the reach of either. “The decision of the IOC not to add women’s ski jumping as an event is not a policy that could be or was made by any Canadian government,” wrote the judges. “The charter cannot be so broadly construed as to include policies or practices that no Canadian government has jurisdiction to enact or change.”
Women Ski Jumpers Grounded…
The BC Court of Appeal has dismissed an appeal filed on behalf of a number of a group of women ski jumpers attempting to get inclusion into next years olympics being held in Vancouver. Written statements were not given, but will be available next week.
Previously, the BC Superior Court ruled that although there are definite Charter breaches and discrimination is evident, they do not apply to the Swiss based International Olympic Committee. On behalf of the women ski jumpers, they argue because the women’s event is not yet a recognized sport, they are under the jurisdiction of VANOC (Vancouver Olympic Committee), which as a Canadian organization is bound by the Charter.
There is no word to whether this will be appealed to the Supreme Court of Canada.
Should they continue to the SCC and win the IOC will be forced into one of three options:
1. Include them
2. Cancel the men’s event.
3. Hold the men’s event outside Canada, so the Charter does not apply, and they can hold only the men’s event.
As the eleventh hour of the games near, if they decide to go to the SCC, expect a quick turnaround.
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.
Ottawa abandons case against Charkaoui
Divisive terror law losing traction
Can we trust secret evidence, often borrowed from foreign countries, to throw people out of Canada?
Colin Freeze explains the security certificates:
… federal ministers sign off on a certificate after viewing secret CSIS information, which allows officials to immediately jail, and eventually deport, a non-citizen.
The “intelligence” used to do this is disclosed to judges but never fully revealed to the accused, drawn as it usually is from secret agents and wiretaps, sometimes placed within Canada but also frequently “loaned” from foreign governments on condition that the provenance be kept secret.
The legal meaning of private property, Conclusion
Click here for Part 1
Our courts couldn’t find any protection of private property from government action in the Charter. You can say that you don’t care because people like Kenk and Chatterjee are bad guys, even if no court of law convicted them of any crime. It looks like a pretty smart idea to go after a bad guy’s assets when there is a chance some sleazy lawyer will get him off. It shouldn’t happen to us because we are not bad guys. Our stuff doesn’t smell of marijuana. But the Civil Remedies Act doesn’t just target people who smell like drugs. You only need to be in the wrong place at the wrong time or even let wrong people use your property to get caught by this law. The statute specifically allows the government to take property of mentally ill found not criminally responsible or of people who were acquitted or who weren’t even charged. Again, this law doesn’t require any specific crime or any specific victim. Your property only needs to be “tainted.” The reasons are noble but the net is wide, and it’s the breadth of the law that you should be worried about. The law doesn’t work with exceptions. It targets general categories.
Because laws apply to general groups of people and don’t include lists of good guys, we should always check them for potential abuses. But this case also gives us a good chance to see what private property means in Canada in general. Chatterjee’s lawyers threw all Charter sections they could think of at the Superior Court judge. All failed. They dropped two out of four on appeal. Still no luck. Finally before the Supreme Court of Canada, all Charter challenges to property taking by the government were abandoned. And there is a good reason for that. Our modern constitutional law does not protect private property. We need to know this to understand our government and our legal system and to plan our lives accordingly. The starting point in this understanding should be the question of what property is.
Property is not a thing, it’s a relationship, as they say in first-year law-school classes. Your car is your property because you are in a certain relationship with other people. This relationship gives you a right to exclude anyone else from driving your car. The other end of this relationship is that other people have a duty not to take your car without your permission. But the most important thing about this relationship that makes your car your property is that the government will enforce it. The police will charge a car thief with a criminal offence. The courts will convict him or will order him to return the car if he took it accidentally. The only reason your car is yours is because the government lets you have it. The government gives you a permission to keep your car and to exclude others. If the government decides to take its permission back, you lose your property or some part of it. For example, if a police officer needs your car in an emergency, he can lawfully take it from you. Or the Parliament can pass a law allowing the government to take all cars with a milage below 10 mpg catching your Hummer in the net. There is no legal limit to how the Parliament can change your property relationships through statute because there are no constitutional protections of private property in Canada.
That’s why Chatterjee’s Charter arguments failed so miserably. We do not have a right to property in Canada like we have a right to life, liberty, or security. And the Ontario legislature can’t just pass a law infringing on those three lightly like it can with property rights. The Charter forces the government to follow the principles of fundamental justice if it wants to imprison, kill, or endanger someone. The criminal process is extremely demanding on the government because of the Charter, and the Parliament can’t take these rights from us because it can’t change the Charter on its own. For these reasons, our rights guaranteed by the Charter are truly our rights. Everything else are just privileges granted by the government, including property and ownership. You can say that the government is not some evil organization to be feared and distrusted, and you will be absolutely right. Canada is a democracy but the democracy is nothing but the rule of a majority. The very reason we put some crucial rights away from Parliament’s reach is to protect them from the majority. History knows many examples when democratic majorities persecuted smaller groups of citizens.
For this reason, it’s important to know what rights are protected and what rights are not. The Ontario’s Civil Remedies Act is a good example of how our property rights in Canada are not protected from the government. The public should know this, even if there are many perfectly good reasons for this lack of constitutional protection. The public should know that our property is just a government’s permission to call some things “ours.” This permission is not permanent, nor does the government have to follow any special fair process to take this permission back. Still, Canada’s federal and provincial governments have traditionally respected the stability of property and ownership. Because private property is critical to the survival and prosperity of our country, there is no reason to believe that Canadians will support any Parliament that tries to change the status quo. But we should be watchful when it comes to small abuses, especially against our less fortunate citizens “tainted” with crime, because there is no Charter challenge that can help them.
The legal meaning of private property, Part 1
Do you think you own your car? If the government convinces a judge that it’s more likely than not that your car is “tainted” with crime, the court can let the government take it from you. No conviction, trial, specific victim, or even specific crime are required. Ontario’s Attorney General asked the courts to let him seize a house and trucks of an alleged bike thief and drug dealer months before he could even stand trial. Another man lost thousands in cash and some personal property to the government because the banknotes smelled of marijuana. The government justifies this law by the need to fight crime and recover its costs. But the really interesting question for all of us is what property really means, do we have any true rights to it, and what the government can do to our property. Although these cases involved people who seem to be different from most of us, we should learn that ownership in Canada is really a permission from the government to have something, whether we are shady characters or law-school professors.
Igor Kenk had a bike store on Queen West in Toronto. One day cops staked him out. They saw money change hands after some guy cut locks on a bike and brought the bike to Kenk. They saw it twice, and then they arrested Kenk. After searching his store and other addresses connected to him, they found hundreds of bicycles, pounds of pot and some cocaine. The police charged Kenk with theft and possession for the purpose of trafficking. About 500 bikes were claimed after a public showing. The remaining 2292 bikes went to storage because no one showed up for them. Kenk was arrested in July, 2008. In October, the province gave him a notice that it would be applying to court for a forfeiture of his store, the bicycles, and his two pickup trucks under the Civil Remedies Act. Not only did he not have his criminal trial yet, but even his preliminary hearing will not be held until next March.
Kenk is not the first man to see his property slip to the government’s hands without any criminal conviction. Robin Chatterjee lost almost $30,000 in cash and other personal property without even being charged with a crime. All it took was the smell of marijuana coming from his things when the police stopped Chatterjee’s car for a minor violation. The police didn’t find any actual pot. When the Attorney General of Ontario asked the courts to let the government keep Chatterjee’s property, Chatterjee started a legal battle. He claimed the Civil Remedies Act was against the constitution. And he lost at every step of the way, including at the Supreme Court. But his case became a leading judicial decision on civil forfeiture—government’s taking of crime-connected property without compensation.
In many Canadian provinces, legislatures gave the government a right to take crime-connected property with a court’s permission. In Ontario, this right comes from the Civil Remedies Act. This law allows the government to take “proceeds” and “instruments” of “unlawful activity” without compensation. The purpose of the law is to compensate victims of crime in general and to recover costs of crime. Your property only needs to be associated with or “tainted” by crime to fall under the law’s sweep. The government doesn’t have to prove you committed any crime. It doesn’t have to produce any specific victim of crime. It simply must show to the court that your property is “tainted.” The standard of proof is more-likely-true-than-not, also known as the balance of probabilities.
The Chatterjee case ended up supporting the Civil Remedies Act. His lawyers started at the Ontario’s Superior Court by attacking the law on many fronts. They claimed that the province doesn’t have the power to pass a law that is essentially a criminal law. Under the Canadian constitution, only the federal government can do that. The court rejected this argument and said that a forfeiture to recover costs of crime and compensate victims is a matter of property and civil rights in the province. The lawyers also claimed that the law breached four sections of the Charter. The Superior Court disagreed again. On appeal, Chatterjee’s lawyers dropped two Charter challenges out of four but still lost on all counts. The version of the case that reached the Supreme Court of Canada didn’t allege any Charter violations. All Chatterjee tried to claim was that Ontario overstepped its powers because the Civil Remedies Act was essentially a criminal statute designed to punish people. The SCC unanimously rejected the appeal. So, the Ontario law stands as it is.
Our courts made it clear that the Charter does not apply when the government takes our property to recover costs of crime, even if you didn’t commit any crime. What’s more, courts’ rulings show that the Charter does not protect our property from the government at all. First, the Charter doesn’t even mention “property.” Second, not a single Charter section Chatterjee relied on convinced the courts that the Charter could imply property protection. He tried sections 7, 8, 9, and 11(d). Section 7 guarantees us fundamental justice when the government tries to take our life, liberty, or security. Section 8 protects us from unreasonable search and seizure. Section 9 prohibits the government from arbitrary arrests. Section 11(d) guarantees presumption of innocence and a fair trial. The Superior Court held that s. 7 does not protect “economic interests.” It also said that even the stress and the stigma of losing your property under the label of crime are not enough to harm our “security” that s. 7 protects. As for s. 8, the court said it applies to privacy, not property. Section 9 was rejected outright. Section 11(d) didn’t fly because the court held that “civil forfeiture [did] not qualify as an offence.” So there was no presumption of innocence to protect or fair trial to guarantee.
Click here for conclusion.
A basic right
Allan Rouben explains what trial within reasonable time is and a June 2009 SCC decision in R. v. Godin.
Major criminal law Charter cases to be released Friday: Grant, Suberu, Harrison
I have huge news for anyone interested in criminal law (and indeed, many accused persons).
After years of anticipation, the Supreme Court of Canada is finally set to release some of the most important criminal law Charter of Rights decisions since the Charter was introduced. This will have implications across Canada for thousands of criminal cases currently before the courts.
According to the latest bulletin, decisions in the following cases will be released on Friday, July 17, 2009:
- Musibau Suberu v. Her Majesty the Queen (Crim.) (Ont.) (31912)
- Donnohue Grant v. Her Majesty the Queen (Crim.) (Ont.) (31892)
- Curtis Shepherd v. Her Majesty the Queen (Crim.) (Sask.) (32037)
- Bradley Harrison v. Her Majesty the Queen (Crim.) (Ont.) (32487)
These cases promise to redefine the way that evidence is excluded from a criminal trial after a Charter breach has been found. The application of Charter, s. 24(2), and specifically the test for whether the adminstration of justice would be brought into disrepute by the admission of the evidence, is expected to be significantly different after Friday. The old test in R. v. Collins, [1987] 1 S.C.R. 265 was certainly overdue for a review after over twenty years of application and modification by trial and appellate courts.
Summaries of the four cases and the issues can be found here.
Political ad bans on transit are unconstitutional
Top court strikes down bus ad ban
Here is the text of the ruling.
(post sponsored by advicescene.com)
The Right to Die
All law students come across the Sue Rodriguez case at some point, and the policy reason for forbidding assisted suicide — that it will be abused by caregivers. My Constitutional Law professor said it was obvious why we don’t allow it and despite much pondering, I still do not understand. It is all the more poignant because a good friend of mine is in Ms. Rodriguez’s shoes — she has ALS; and it is no surprise to me that she would like to have her life ended at the time of her choosing so as to avoid the intense suffering that will come if the disease progresses to its final stages.
So I ask this question: How is there room for abuse if the person whose life is being ended requests that her life be ended and chooses the time that her life is ended? I take it as obvious that assisted suicide should only be permitted for certain types of degenerative ailments like terminal bone cancer and ALS where there is no chance of recovery and the later stages of the disease bring about the kind of suffering that no living creature should be asked to endure. Someone who recently acquired a spinal chord injury and does not like the idea of life in a wheelchair, for example, should NOT be granted an assisted suicide. As well, for fear of abuse, we should not permit caregivers to request an assisted suicide on behalf of someone who cannot communicate. This much I understand.
But why do we force those who are incapacitated beyond the point of having any meaningful quality of life to suffer the final stages of a disease like ALS against their own wishes? To me this is inhumane. I would like to share with you the words of my friend Amy (fyi Carolyn is Amy’s daughter):
‘It’s not that I’m afraid to die; I just don’t want to be there when it happens.’(Woody Allen)
During a recent telephone conversation, I was reminded of an item I saw for sale once in the New Yorker magazine: solid rosewood pole capped with silver, 11 feet in length for those people who wouldn’t touch anything with a 10 foot pole.
And so I touch on the thorny debate on death – virtual pole in hand. It is a slightly different perspective than a healthy person’s approach, I grant you, but I imagine many of the questions would be the same. Perhaps, too, after being immersed in the Tudor series over the Christmas holidays, one realizes that rationalization can hide a multitude of sins and beliefs and the thirst for wealth and power has changed little in the intervening centuries. Should one, like a queen endure until dethroned (which sounds simple enough), or take the pre-emptive route of choosing the time and place of death before an even more hideous one can be devised? I routinely debate whether it takes more courage to live with something as debilitating as ALS or more courage to choose death on my own terms.
At this point, in 2009, my debate involves an innocuous phrase “quality of life” rather than being persecuted for religious beliefs or witchcraft or, as a woman, creating controversy simply through holding an opinion. It also involves the concept of suffering. How do we quantify such a thing to say enough is enough and does physical suffering that we can see outweigh mental suffering that we tend to ignore? And what about mercy? Anne Boleyn purportedly had her scheduled being burnt alive commuted to beheading with a really sharp sword. One could argue whether that was merciful. Conversations at deathbeds routinely include comments that a quick and timely death for a person who has no chance of recovery from catastrophic circumstances is merciful but Lord help you if you wish for it yourself and you are too disabled to do it.
We do not have the liberty of getting a verbal answer from a beloved cat or dog when asked if they would like to live in pain or be euthanized and, emotion aside, the decision is often a financial one. I know it can be considered crass, even unethical to many but if my care, presuming I could get it without bankrupting my family, costs thousands upon thousands of tax payer dollars and I want to die, why can’t I and have that money be used for people who have lives to live and can be saved? Another aspect not addressed much is the fact that a planned death would allow my annoyingly healthy body parts (heart, lungs, liver, kidneys) to be given to someone who would die otherwise without them. My life’s tragic turn of fate would be of real value to several people and I would know that my death also meant life. In the end, since I truly am in Sue Rodriguez’ unenviable shoes, I echo her famous question, whose body is this? I would also like to point out, I have not committed a crime (treason anyone?) so should not be forced to endure the consequences as if I had.
If there is one redeeming quality in suffering ALS, it is that, in most cases, a person dies in their sleep overcome by carbon dioxide; an effective analgesic. At which point the suffering and quality of life issues become too much to bear in between “the now”, where I can still communicate and do some things and “the then” of lying there 24/7 and receiving whatever my senses are capable of taking in and relying on the care and whims of those who will look after me, is the one hundred thousand dollar question.
I am not advocating death; I am an advocate for choice. The concept of choice when it is about birth or death is a highly emotionally charged, ethically challenging, controversial and divisive topic. Despite all of it, people are born and people die every second of every minute of every hour of every day. Last year of all the people who visited hospitals in Canada, 225,000 of them got something else that they didn’t go in for and of those, 8,000 of them died from the new invader…and they didn’t want to. And the rule-makers are worried about literally a few people who want to hasten their death? Something is wrong with this picture.
So why have I chosen now to share my views on this heavy topic? In mid-February, Carolyn and I spent several hours with a production company filming footage for a PSA TV commercial and a documentary on this subject. Because it is a difficult and mostly ignored topic, it is due for a public forum and they wanted to interview people and organizations who have to deal with death on the front lines. Spearheaded by an organization called Dying with Dignity, I was approached to participate. I was pleased that I was able to be succinct and articulate enough despite my slurry speech but I have had a lot of time to think about this and it certainly opened the dialogue for Carolyn and I to discuss it; agonizing though it may be. So, coming soon on a screen near you…….
Oh, and for those of you who don’t have wills; get one, now, for you forfeit so much to bureaucracy without one. Write your wishes down already (cremation, Beethoven’s 9th Symphony performed live, non-resuscitation, open bar, Aunt Mabel in sequins tap dancing on a white grand piano). Those left behind would rather not guess your intentions and you may hate lilies – still.
I am not a Hollow Man and T.S. Eliot may end with
This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.
But not in my world.
Namaste and Amen,
Amy Doo
> : )
Copyright Law, Freedom of Expression and Canwest v. Horizon
In a previous post I erroneously stated that the appeal of Canwest Mediaworks Publications v. Horizon Publications had been dropped. As it turns out, the appeal is pending; the game is on. Those who wish to know more should visit the Seriously Free Speech Committee website where there is a wealth of information including the trial court decision and the Notice of Appeal. While browsing the site, I noticed that within some of the articles there are calls for Canwest to drop the suit. Although I completely understand why the appellants would want to be freed from the onerous burden of legal action, I am hoping that the case proceeds for the benefit of society.
Copyright law occupies an unusual place in the legal landscape. It is an extraordinarily complicated regime that affects our daily lives in hundreds of ways, yet it is rarely litigated. There are only a handful of appellate court decisions pertaining to copyright law; opportunities to move the law in a positive direction are infrequent and questionable decisions like Michelin can linger for decades.
While many cases of infringement involve activities that could reasonably be described as unjust enrichment, the wording of the statute is such that a black letter interpretation renders a number of practices unlawful that are in fact beneficial to society and do not involve usurping the gains of a copyright-holder. A prime example is the artistic practice of appropriation, i.e. using culturally recognized symbols (for which copyright usually subsists) to express a unique idea. In the Michelin case, a cartoon was distributed to promote a union drive which depicted a large smiling “Michelin Man” about to trample on a Michelin factory worker.
Although appropriation is an old artistic technique, it is becoming much more common in our media-rich culture, and I would suggest that the growing importance of appropriation is a natural evolution in a society where we are constantly bombarded with images and sound bites. No individual alive today created the English language. We were “bombarded” with it when we grew up, and we appropriated the words and phrases as tools for our own expression. This is a reasonable and indeed productive activity. It is for this reason that copyright protection is not permitted for words and ideas; they are the building blocks of expression that are part of our cultural heritage and rightly belong in the public domain.
In a media-saturated society, the same elements are at work with the many images and sound bites that we are exposed to. With the growing variety of tools to manipulate them, it is only natural that artists would incorporate some of these images and sound bites into their own unique works, and often as a means of social commentary. This is what artists do. They have never been satisfied with painting pretty pictures, but prefer to shine a harsh light on the society in which they live through the innovative use of symbols. This is an important part of the social dialogue and free exchange of ideas that underpin our culturally rich society.
The law of copyright, in its current form, depends upon the concepts of originality and substantiality to protect the building blocks of expression, and therefore only permits appropriation that is not substantial (with narrow exceptions for fair dealing as explained by David Fewer — thank you for your comment). This test is too simple to ‘get it right’. As a result, it has the incidental effect of stifling the vast majority of appropriative forms of artistic expression and social commentary, regardless of the social import and regardless of how creative a work is.
There can be no doubt that copyright law protects legitimate interests, and it must continue to do so. However, I respectfully submit that the current statute, as applied by the courts, does not adequately serve the dual objectives of “promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 at para 30.). To the contrary, the law actually discourages the creation and distribution of new works.
In a society where copyright cases are rarely litigated, the Canwest case is an invaluable opportunity. It is my hope (and apparently I am not alone) that the Canwest case results in a more nuanced enunciation of copyright law in Canada: one that allows appropriation in circumstances where it does not interfere with the legitimate interests of a copyright holder.
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