RSS FeedThe 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.
The Charter Does Not Apply to Copyright Law
Despite the public attention that has been directed at copyright law recently, the issues surrounding the Charter right to freedom of expression have been absent from the public discourse. The matter was litigated last fall when the Supreme Court of British Columbia cited the Federal Court’s dubious Michelin decision to summarily cast aside any Charter defences to copyright infringement. I’m talking about the decision in Canwest Mediaworks Publications v. Horizon Publications, 2008 BCSC 1609, and I am surprised that it drew so little public attention.
In this case, political activists created and distributed free of charge a satire of the Vancouver Sun newspaper in an attempt to draw attention to the alleged editorial bias of the Sun’s parent company, Canwest Mediaworks. Canwest is responsible for 80% of the newspapers sold in B.C., and the freedom of expression issues are fairly obvious with respect to truth-seeking and the marketplace for ideas that a democratic society requires to function properly. Meanwhile, from a policy standpoint, it is difficult to see any benefits that accrue to society by protecting Canwest’s copyright interests in this context, let alone any benefits that would trump the value of the Charter. However the Court saw no merit in the Charter issues.
The decision was appealed but Canwest decided not to pursue the matter. While some civil liberty supporters cheered this outcome, the fact that the Canwest decision was not reevaluated means that both Michelin and Canwest represent the current state of copyright law in Canada with respect to the Charter.
Canadian legal scholars have yet to weigh in on Canwest, but they have been unanimous in their criticism of Michelin. According to Vaver, “the … view in the Michelin case, with its disturbing assertion that the freedom of expression guarantee in the Charter of Rights and Freedoms can never override copyright ‘property’ should be rejected.” (David Vaver, Copyright Law ( Toronto: Irwin Law, 2000) at 195). Similar sentiments have been expressed by David Fewer, Jane Baley and Karen Lowe.
I respectfully agree. Copyright law is necessary to facilitate a business model that is widely accepted in our society but it affects the ability of various parties to communicate and is therefore likely to affect Charter rights from time to time. How absurd to suggest that copyright law is immune to Charter scrutiny.
Yet, there are two concurring cases as precedents, and typically the loser pays the winner’s costs, so it is unlikely that these decisions will be overruled in the foreseeable future.
Those who are interested are encouraged to read the following:
David Fewer, “ Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada” (1997) 55 U. Toronto Fac. L. Rev. 175.
Jane Bailey “Deflating the Michelin Man: Protecting Users’ Rights in the Canadian Copyright Reform Process” in Michael Geist, Ed., In The Public Interest: The Future of Canadian Copyright Law (Toronto, Irwin Law 2005).
Karen Lowe “Shushing The New Aesthetic Vocabulary: Appropriation Art Under the Canadian Copyright Regime” (2008) 17 Dalhousie J. Leg. Stud. 99.
The Michelin case makes for interesting reading as well: Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (T.D.) (1996), [1997] 2 F.C. 306.
NOTE: Shortly after publishing this note I learned that the appeal was not dropped. Bloggers beware: there are a lot of news articles on-line and many are not current. Some have the facts wrong. It is easy to be misinformed. As well, due to a computer glitch, the original post was deleted so this post is a ‘resurrection’ of sorts. Unfortunately the insightful comments by Pulat Yunusov and David Fewer were lost in the process. I am very disappointed … but life goes on.
Why You Should Never Talk to the Police
Moin A. Yahya, Associate Professor of Law at U. Alberta has posted a couple of interesting videos on why criminal suspects should never talk to the police.
Most experienced defence lawyers will tell you that the first words out of their mouth when they get the 3AM phone call from the jail are: “don’t say anything!”
But for some reason, criminally accused often don’t seem to get it.
The videos feature a professor of law (formerly a defence lawyer) as well as a police officer explaining why suspects would do well to heed the advice and exercise their right to remain silent.
Though the videos are reflective of American law, the principles are largely applicable here in Canada. Though we do not have a 5th Amendment, Canadians have long had a right to silence which is now constitutionally entrenched in s. 7 of the Charter (see R. v. Singh, 2007 SCC 48 for a discussion).
And now, without further ado, here is why you ought not to speak to the police:
If you have limited time, I’d suggest skipping forward to 8:20, where the professor discusses the “top 10 reasons why you should never speak to the police.”
[YouTube clips reposted from U. Alberta's Law Faculty Blog]
SCC: No Privacy Interest in Things We Throw Out
The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17, which concerns privacy interests in garbage and other abandoned items. The Court ruled that a police search of garbage abandoned at the curb does not require a warrant and can be done without violating the Charter.
Calgary police suspected that Mr. Patrick was operating an ecstacy lab in his house. Acting on this suspicion, the police attended at the house on six occaisions to retrieve and search through garbage bags, looking for any evidence of criminal activity.
The garbage bags had been placed inside garbage cans, which in turn had been left outside in a small shed for collection. The shed was on Mr. Patrick’s property, and the police had to reach over the property line to grab the bags.
As a result of these searches, police retrieved numerous incriminating pieces of evidence. The bags contained things like packaging for a digital scale, a receipt for muiatic acid, torn up chemical recipes, etc. Some of the items were contaminated with ecstacy.
Partly on the basis of the evidence collected in this way, the police were able to obtain a warrant to search Mr. Patrick’s home. After forcibly entering his home, they discovered precursor chemicals, scales, a pill press, and 2679 ecstacy pills.
Patrick argued that his section 8 Charter right to be free from unreasonable search and seizure had been violated.
The Court unanimously decided that it had not.
The central issue in the case was whether Patrick, by placing his garbage bags outside to be picked up by municipal garbage collection, had abandoned any interest in those bags.
Thus, the case was was essentially resolved as a property law question.
The majority cited R. v. Dyment, [1988] 2 S.C.R. 417 for the proposition that abandonment of an item automatically disposes of one’s privacy interest in that item:
In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it.”
[Patrick, at para. 22.]
Next, they cited R. v. Stillman, [1997] 1 S.C.R. 607 as standing for the same proposition:
In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded.”
[Patrick, at para. 23.]
A finding that an accused person has abandoned an item seems, therefore, to be dispositive of any section 8 claim about that item. That’s a pretty narrow view of privacy.
Ironically, in Stillman, the seizure of a discarded tissue was held to have breached the accused’s section 8 rights. In that case, a young man was in custody at RCMP headquarters for five days. During the course of his detention, Stillman blew his nose into a tissue and tossed it out. The police retrieved the discarded tissue and obtained Stillman’s DNA.
The Supreme Court in Stillman focussed on the fact that the accused was in custody and had no real alternative to giving up his bodily samples:
[W]hen an accused person is in custody, the production of bodily samples is not an unforeseen occurrence. It is simply the inevitable consequence of the normal functioning of the human body. The police are only able to profit from the production of the samples because the accused is continuously under their surveillance. For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody. … In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples? He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”
[Stillman, at paras. 58-59.]
Why is the custody versus out of custody distinction so significant?
The reality of modern urban life is that the only realistic way to dispose of household garbage is through the municipal waste system. The production of household garbage is not an unforseen occurrence. It is simply the “inevitable consequence” of civilization. The garbage has to go somewhere. It is completely impractical (and probably illegal) to have to burn every piece of garbage that you want to keep private. Indeed, in Calgary, where Mr. Patrick lived, by-laws make it illegal to dispose of household garbage in any way other than by placing it in a waste container for collection.
Thus, whether you are in custody or at home, the waste you produce will eventually end up in the hands of the state.
(Incidentally, Calgary also has a by-law making it illegal to scavenge through someone’s garbage. The police violated the by-law, but I doubt whether anybody wrote them a ticket. Isn’t the existence of this by-law indicative of the important privacy concerns that we have in our waste? The majority dismissed the relevance of the by-law [Patrick, at para. 68].)
Despite recognizing the important privacy concerns with respect to the contents of a household garbage bag the Supreme Court simply could not get past the abandoment issue:
Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.). As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle. Many of us may not wish to disclose these things to the public generally or to the police in particular.
…
[A]part from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302). … The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.
[Patrick, at paras. 30, 40; emphasis mine.]
So when exactly does household waste become abandoned such that the police can freely look into that window? The defence argued that the privacy interest in garbage should continue until the garbage becomes anonymous. The Court rejected this view outright:
The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house.
[Patrick, at para. 54.]
Is that actually “too extravagant to contemplate?” Is the defence’s proposal such a bad idea? I certainly think that the personal items I throw in the trash ought to remain private until they cease to exist. I bet a lot of Canadians would agree with me. The municipal garbage system, to me, is like an Orwellian memory hole.
The Court concluded that the moment we toss our garbage bags to the curb, our privacy interest in the contents of the bags is at an end. It doesn’t matter if the garbage bags are on your side of the property line. It doesn’t matter if you take pains to drive your garbage bags all the way to the dump site. The majority held that:
Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.
…
[T]he appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection. The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.
[Patrick, at paras. 64, 73.]
There was a brief concurring opinion by Justice Abella. Though she did not believe that a Charter breach had occurred in this case, her focus was not on the abandonment issue.
Abella J. found that abandonment alone should not automatically leave household waste open to police scrutiny. She was concerned that under the majority’s approach, the police would have unrestricted access “to information most people would never expect to be publicly accessible.” In her view, a person has a diminished, but not extinguished, expectation of privacy in respect of garbage which has been abandoned [Patrick, para. 90].
Given that there was some expectation of privacy, this expectation would have to be balanced against the legitimate interests of the state in investigating crime. Abella J. did not believe that prior judicial authorization in the form of a warrant would strike the appropriate balance. Instead, she felt that police must have a reasonable suspicion. “Reasonable suspicion” was not defined in the judgment, but it usually refers to some articulable grounds for believing that a crime has taken place. It is more than a mere hunch, but something less than reasonable and probable grounds; a fairly low threshold.
“[I]n my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion. Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal. Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.”
[Abella J., concurring, in Patrick, at para. 77.]
Certainly when we throw our garbage out we are giving up a proprietary claim to it. But I think that our proprietary claim has to be treated as distinct from our privacy interest. I think it’s an inherent expectation of Canadians that what we throw out will be free from scrutiny by other members of the public, and certainly by the state.
Abella J.’s decision is much more compelling in that it recognizes a legitimate (though diminished) expectation of privacy in things we throw out.
Unfortunately, today’s majority decision significantly abrogates our privacy rights in this country.
Amicus Curiae sits down with Justice Binnie of the Supreme Court of Canada
Ahmed Farahat of UWO’s new law paper interviews Justice Ian Binnie. From the February issue of Amicus.
If I can start by asking you: when did you first decide to embark on a career in law?
I think when I was in college. I arrived at it by a process of elimination. I could see all sorts of jobs that I was congenitally incapable of doing. I did a lot of debating in my undergraduate years, and becoming a barrister seemed like fun.
I noticed in your biography on the Supreme Court’s website that you did your LL.B. in Cambridge. Why did you get your law degree from the UK?
At the time I went, Ontario accepted entry to the British bar to go straight to the Bar Admission Course. So I thought: here is an opportunity to see another part of the world and get an educational qualification that is recognized in Ontario. Unfortunately, when I was away they changed the rules and when I came back, they said well, now you have to get an LL.B. from an Ontario law school. Seemed like a good idea at the beginning.
How was the Cambridge experience different from the one you had here at the University of Toronto?
The experience in the UK is totally different from University of Toronto. In the UK, they studied medieval English, Roman law, and all kinds of topics that were absolutely of no practical importance whatsoever. Toronto, when I got there, was experiencing quite a golden age with Bora Laskin and many interesting professors. So there was eventually no duplication at all between the three years I spent at Cambridge and the two years I spent at Toronto. And there is no doubt that Toronto’s education was of a higher order. The English system has law as an undergraduate degree, so you go straight from high school to law, whereas in Canada, students already completed their undergraduate degree. In England, there was no real reason to go into law other than escaping history and literature and all the other courses you performed poorly in during high school.
Man Not Criminally Responsible for Greyhound Bus Beheading; Victim’s Family Call for Punishment
Justice John Scurfield ruled Thursday that a man accused of beheading and cannibalizing a Greyhound bus passenger is not criminally responsible (“NCR”) due to mental illness.
Vince Li’s trial lasted only two days and heard from two expert witnesses, both psychiatrists, who testified he is mentally ill.
Both the prosecution and the defence argued that Li cannot be held criminally responsible because he was suffering from schizophrenia and believed God wanted him to kill the victim because he was a force of evil.
Li did not know the victim, Tim McLean, before sitting beside him on the bus, nor did he speak with him during several hours before the attack, which Scurfield J. described as ”grotesque”, ”barbaric”, and ”strongly suggestive of a mental disorder.”
A psychiatrist called by the prosecution Wednesday testified that Li cut up McLean’s body because he believed that the victim would come back to life and take revenge.
Having been found NCR, Li will be institutionalized without a criminal record. He will be reassessed every year by a mental health review board to determine if he is fit for release into the community.
McClean’s family are vowing to fight the law that allows those found NCR to be released into the community if they are rehabilitated. The family argues that these people should instead serve a minimum sentence in jail.
Howard Barbaree, Phil Klassen, and Padraig Darby, experts in the areas of law and mental health, have written a terrific commentary on this issue published in the Globe and Mail. In it, they argue that “Canada should be proud that it has developed a thoughtful, balanced and fair treatment system for mentally ill individuals who commit criminal acts.” The commentary is entitled, “The mentally ill who break the law deserve ‘all mercy and humanity’“.
In my own opinion, this proposed punishment, dubbed “Tim’s Law,” would be unconstitutional. It would violate a person’s Section 7 right to liberty under the Canadian Charter of Rights and Freedoms.
A finding of ‘not criminally responsible’, pursuant to Section 16 of the Criminal Code, is just that. A finding that the person is not a criminal.
The proposal by the McClean family is this: once released by a mental health review board, a person becomes capable of meeting the fault requirement for the past act that they commited while suffering from mental illness. The illogic of the proposed punishment is that a person who is now capable of appreciating right from wrong should be punished for what they did when they were not capable.
In common law countries such as Canada, the test of criminal liability is expressed by the Latin phrase, actus non facit reum nisi mens sit rea, which means that “the act does not make a person guilty unless the mind is also guilty”. Not explicitly stated in this this phrase is the requirement that the actus reus (act) and mens rea (guilty mind) must overlap in time.
In the case of Li, if he recovers from schizophrenia and is released by a mental health review board, he will merely have the capability of having mens rea for present actions. This capability of having mens rea will obviously not overlap in time with his past actions. Therefore, the punishment proposed by the McClean family, although perhaps understandble on an emotional level, would be cruel and unconstitutional as it would be inflicted on a person who has committed no crime under law.
Criminal Code, R.S.C. 1985, c. C-46, s. 16:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7:
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.
