RSS FeedOn grandmothers and stunt driving
Sometimes a court case comes along that I simply love. Usually I love a case because it teaches me something about law, or because it is uniquely Canadian, or because it’s worth blogging about. This week’s stunt driving decision out of the Court of Appeal does all three. In R. v. Raham, Ontario’s highest court taught us how badly some of our laws are drafted and how lucky we are to have Francophone Canadians. There is also a reminder about a shockingly easy way to risk jail for making a left turn. I love this case.
Highway 7 between Ottawa and Toronto and grandmothers—I don’t know if there is something about this mix that leads to major debates in penal law, but on April 29, 2008 a woman passing a truck began an important case that culminated in an Ontario Court of Appeal decision on Thursday. Ms. Raham was driving home to Oakville from the Ottawa area and speeding. Closely in front of her was a tractor trailer, also speeding. They both were speeding at about 90 km/h in an 80 km/h zone. Ms. Raham stepped on it and started passing the truck.
It must have been a long truck because she kept accelerating until a diligent police officer driving behind her clocked Ms. Raham at 131 km/h (51 km over the limit). She did slow down after passing the tractor trailer—to 110 km/h. It was probably then that the officer pulled a surprised Ms. Raham over and charged her with “driv[ing] a motor vehicle on a highway while performing a stunt, to wit: driving at a rate of speed that was 50 kilometres per hour or more over the posted speed limit.” And that’s how a grandma was charged with stunt driving—a provincial offence punishable by a fine between $2000 and $10,000 or by up to six months of jail, or both. I am not even talking about licence suspension.
Ms. Raham’s lawyer, assuming she had one, didn’t like this charge. In Canada, if a penal law allows for jail time, it must contemplate the state of mind of the accused. There are two options: either the prosecutor must prove that the accused knew or should have known he/she was committing the prohibited act (full mens rea offences), or the accused should be able to raise the defence of due diligence (strict liability offences). This defence means you did everything you were supposed to do but the prohibited act still took place. In both cases the state of mind of the accused matters for conviction or acquittal. Our constitution always requires this when you are accused of something that can get you in jail. No jail without fault.
For some offences fault is not required. You can never go to jail for those. Ordinary speeding, parking, talking on your cellphone while driving (unless you kill someone), etc. come to mind. It doesn’t matter if you knew you were parking in the fire lane or if your speedometer was broken when you went 10 km/h over the limit. The law will punish you regardless of your fault. These offences are called absolute liability offences. Because punishments are relatively light, offences are frequent, and the threat to public safety is serious, the law wants quick justice without delving into your moral blameworthiness.
So Ms. Raham or her lawyer thought the stunt driving law allowed jail for an absolute liability offence. On their reading of the law, all you needed to do to commit the offence of stunt driving was to go 50 km/h over the limit. The law didn’t say anything about the mental state of the accused or if the fault was relevant to conviction. But it did threaten jail. Regular speeding offences are absolute liability offences. And the act they prohibit is identical to the stunt driving offence. The cop who pulled Ms. Raham even had a choice between a regular going-50-over-the-limit charge or a stunt driving charge. I guess the cop wasn’t in a forgiving mood that day.
The Justice of the Peace who tried Ms. Raham threw the constitutional argument out of the window and convicted the grandmother. She appealed to the Ontario Court of Justice, which acquitted her and declared the Ontario stunt driving law unconstitutional. It is from that decision that the government appealed to the highest court of Ontario. On Thursday, the Court of Appeal said the stunt driving law was constitutional.
The lower court’s theory that the Court of Appeal rejected was simple. Even, if stunt driving was a strict liability offence, its nature gutted any due diligence defence. The judge couldn’t wrap his head around how anyone could prove they did everything they should have done to avoid going 50 over if they were obviously speeding. He said you can’t prove you didn’t know you were speeding if you were going at least 50 over. And if you certainly knew you were speeding, how could you prove you did everything you were supposed to do to avoid going over 50? So your defence of due diligence would always fail making the offence effectively an absolute liability offence.
The Court of Appeal disagreed. Justice Doherty wrote that “[t]he defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense.” Even if you are going 49 over, but try really hard not to go 2 km/h faster, you will not be convicted of stunt driving if you do go over despite your reasonable efforts. Well, good luck with that in court, if you are accused of stunt driving. But you get the idea.
Of course, the legislature could have spared the courts so much legal wrangling if they drafted their laws better. We wouldn’t even be talking here if the Ontario Parliament expressly included the due diligence defence in the law. But they went far beyond just forgetting the defence. Here is the wording of the statute: “No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.”
A big part of the appellate decision is figuring out if these words mean two offences: a stunt or a bet, both in a race on a highway, or if they mean three offences: a race, a stunt, or a bet, all while driving. In the first case, the stunt offence would include elements of the race offence that contemplates the state of mind (no constitutional issue). In the second case, the stunt offence is stand-alone and figuring out the state of mind component is up to the courts (a constitutional issue).
The Court of Appeal preferred the second interpretation. And one of the decisive factors in its decision was the French version of the law, which was pretty straightforward unlike the English version. There you go: thankfully we have French-speaking Canadians and a constitutional requirement of bilingual laws. If one version of the law looks like it was drafted by a serpent from the tree of knowledge, we always have the other version for backup.
And the final lesson of this case is that you can go to jail for dashing in front of the waiting traffic in the opposing lane to make a left turn when the light switches to green. Seriously, check s. 172 of the Highway Traffic Act and s. 3, item 8-iv of Ontario Regulation 455/07.
(Post sponsored by AdviceScene)
How 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)
Now Even Shoplifters are Terrorists
Being a terrorist is en vogue these days. And even if it isn’t, seems like you might have a hard time escaping the label.
Minister MacKay claimed pirates off the coast of East Africa were “financial terrorists,” apparently a new brand or flavour of the terrorist trend.
Even the National Post, usually a publication known more for perpetuating terrorist myths than clarifying them, was quick to criticize this move in an editorial,
Oh boy. Since Sept. 11, 2001, we have watched ruefully for the inevitable debasement of the verbal coin of “terror” and “terrorism”; and here we have what seems like a lamentably clear example. Mr. MacKay has something of a point, insofar as acts of piracy are now generally classed with terrorism under Canadian law and UN conventions.
But the term “terrorism” exists precisely to distinguish ordinary thefts and kidnappings, with ordinary motives, from ones intended to undermine the international order and the legitimacy of states. It functions as a license for governments to transcend the ordinary limits and procedures of law, where to observe them would mean surrender to the political program of a minority.
That’s actually the problem with the current law. Applying the terrorist label does not give governments a license to trample rights and transcend “ordinary limits,” although it seems that a recent decision might indicate that’s exactly what’s happening.
The first member of Canada’s only major alleged terrorist plot, the Toronto 18, was sentenced this week. But it appears as if he was guilty without any knowledge of anything remotely related to terrorism. The broad and vague language of the current terrorism provisions means he could be convicted for any form of material support – including shoplifting.
Thomas Walkon of the Toronto Star explains,
By any reasonable definition of the term, this young man is not a terrorist. He did not plot to blow up buildings or behead politicians. Nor, according to evidence at his trial, did he know of any such alleged plots… He did shoplift from Canadian Tire gear that the judge determined was intended, if not necessarily used, for the ill-fated camping trips…
So why was this juvenile, whose only overtly criminal behaviour consisted of shoplifting, convicted of terrorism?
The answer lies in the wording of anti-terror legislation, rushed through Parliament after 9/11.
Under these anti-terror provisions of the Criminal Code, a person need not know anything about a specific terrorist plot – or even if a such a plot is being planned – to be guilty of terrorism.
But he is guilty if he knowingly does something – even indirectly – that is intended to further the objects of a group that, in the most general sense, has terrorist intentions.
Such as shoplifting camping gear.
Indeed, a suspect can be found guilty of terrorism even if this shoplifted camping gear is never used.
This position is an embarrassment to the Canadian legal system. The hallmark of criminal law in the common law system is a mental element and an act element. Someone who commits a crime without intending to do the act cannot normally be convicted (with some exceptions).
Doing an act that is never intended for a terrorist act, then being punished for it when it is retroactively labeled as material support to a terrorism conspiracy, is a miscarriage of justice.
Justice Sproat who ruled in this case had no choice but to convict the young man in this case given the wording of the statute. The full blame of this rests on Canadian Parliament, who overreacted with xenophobia when passing this law in that it was worded so broadly that it could be abused in this manner.
Perhaps more specifically blame can be leveled at the Justice Minister at the time, Irwin Cotler, who was charged with reviewing Bill C-36 and ensuring an adequate balance was struck between civil liberties and national security concerns.
Prof. Don Stuart of the Faculty of Law at Queen’s University warned the Special Senate Committee on Bill C-36 at that time,
I see in this bill a wider pattern of quick-fix law and order legislation. This is the kind of legislation of which Canada should not be proud and should not accept…
When I look at this bill, it is something that Canada did not need. We had ample law… Those of us who have been thinking about criminal law teaching and principles for years would see absolutely no reason to create new crimes to deal with terrorism and the types of police powers and CSIS powers that have been created here. They are quite extraordinary. I do not think we need them at all. We have plenty of laws to deal with this situation…
Despite recent government amendments, I see that they do not yet meet the high standard of justification needed to support massive dragnet powers of this sort. Basic principles of a criminal justice system that deserves the name require a meaningful proof before you send someone to jail of a meaningful act and what we call fault. Also, we need to have people fairly labelled and punishment must be proportionate. Notwithstanding the amendments the government has approved – the tinkering around with the definitions – in my view, the definitions are still far too wide. I include in that a consideration of the listing section.
In my view, the devil of this bill is in the detail. I do not think there are too many people in this country who have read every provision of this bill… It is far too complicated. To suggest that we actually know or Parliament knew what they were voting on when they passed it seems to be a stretch.
If you actually look at the way these new offences have been defined, they do not achieve what they say they will. The Justice Minister stands up and says, “We have a narrow offence about knowingly participating in a terrorist group,” but when you look at the bill, the word “knowingly” is nonexistent.
[emphasis added]
Prof. Stuart elaborated further on the failings of the new Bill in a seminal paper,
The Anti-terrorism Bill (Bill C-36): An Unnecessary Law and Order Quick Fix that Permanently Stains the Canadian Criminal Justice System.
Even more to blame is a law enforcement establishment that cast a net so wide that even those peripherally involved with an alleged terrorist act can be held complicit, even if they knew nothing about it.
When Canadians re-gain their sensibility and re-examine the fairness and justice of these provisions, and the potential for abuse, it should be the first thing re-visited by Parliament.
Britney Lacks Necessary Mental Element
A reporter recently pressed charges against Britney Spears for running over his foot with her car.
But on Friday, Deputy District Attorney Joseph D. Shidler said,
[the] only way the victim’s foot could have been where the video indicates it to be was by the victim placing it in that location.
Shidler had reviewed photos and videos from last year to assess her liability, and noted that she was driving very slowly in a straight path, surrounded by reporters with lots of noise and confusion.
Furthermore, Britney claims not to even remember the incident.
It’s not the first time she’s gotten in trouble while driving. In 2006, a scandal erupted when she was spotted driving with her child on her lap, and last year she had a misdemeanor hit-and-run charge in a parking lot.
Earlier this year she had an accident on the Los Angeles freeway.
But Brittney lacks the mens rea, or the mental element necessary for guilt for offence in this most recent incident.
There are some criminal acts that do not require mens rea at all, including absolute liability offences and some regulatory offences.
But otherwise the mental state or subjective awareness in a state of mind is needed in addition to the act requirement, or actus reus, component of the offence. The mental state also includes:
- intention
- knowledge
- willful blindness
- recklessness
In Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439, the defendant was pulled over by PC Morris, but stopped too far from the curb. The officer directed him to a specific location, and accidentally drove over the officer’s foot.
Morris exclaimed,
Get off, you are on my foot!
But Fagan turned off his ignition and said,
F*** you, you can wait.
After repeating the request several times, Fagan finally complied.
Fagan was charged with “Assaulting a constable in execution of his duties,” but he appealed as he had not initially run over the cop’s foot on purpose.
Although the court agreed that assault cannot be committed by omission, this assault occurred as a continual act of battery. Fagan developed the necessary mental element by continuing to keep the car on the officer’s foot.
The conviction was upheld.
The court said,
On the facts of the present case, the ‘assault’ alleged involved a ‘battery’. Where an assault involved a battery, it matters not, in our judgement, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand on another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So, for our part, we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and sitting in the car while its position on the foot is maintained.
This case was cited in the Supreme Court in R. v. Cooper, [1993] 1 S.C.R. 146 in assessing the contemporaneity of the mental and act element for a drunken person who accidentally strangled a friend
Had Brittney deliberately run over the reporter’s foot, or found out about it and kept the car in place, she may have been found guilty.
This time at least, we’re going to leave Britney alone.
