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A Conference

When: Saturday October 26, 2019

Where: Robson Hall, Moot Court

Register By October 19th

View the Conference Schedule

‘Legal knowledge’ and ‘knowing’ in the courtroom, often referred to as the law of evidence, has undergone radical transformation over the last ten years. 2019 marks the ten year anniversary of the landmark case of R v Grant, which reoriented the test for exclusion of evidence at trial due to the state’s Canadian Charter of Rights and Freedoms breaches as a balancing act in which the seriousness of the state conduct is measured, and on which the impact on the protected interest of accused persons were used to assess whether evidence should be excluded or included in a trial based on society’s interests in the adjudication of the merits of the criminal matter. What does the conception of knowledge mean in modern criminal legal proceedings? How has knowing and constructing criminal responsibility changed in the legal context over the last ten years in light of changes in evidence law, conceptions of vulnerability and enhanced digital and informational connectivity? How do we visualize criminality in the information age? This conference aims to discuss and unpack these questions.

Keynote Speaker: 12:45PM-1:45PM

Section 24(2) of the Charter: A Comparative Analysis (working title)

The decision of courts to accept or exclude evidence serves as a vital point of contact and communication between the legal system and the rest of the criminal justice system. Exclusion of improperly obtained evidence is the most discussed and litigated of all constitutional remedies not only in Canada, but many other countries. Following an approach informed by legal process and dialogic theories, it will be argued that courts should stick to what they do best- ensuring fair trials and effective remedies for violations of the rights of the specific litigants- but that they also need to be more active in asking the legislature and the executive including police services to take steps to prevent repetitive violations and if need should consider more intrusive remedies should similar violations persist. This would result in a very different and arguably smarter and more sustainable form of judicial activism than seen in the United States during the 1960’s. The court should also use exclusion decisions to inform their own practices including addressing concerns that much of the law restraining police conduct is unclear.

Featured Speakers:

Adelina Iftene, Schulich Law

Rebecca Bromwich, Carleton Legal Studies

John Burchill, Winnipeg Police Services

Michelle Lawrence, UVic Law

David Milward, UVic Law

Nicole O’Byrne, UNB Law

Michael Nesbitt, UCalgary Law

Lisa Silver, UCalgary Law

Erin Sheley, UOklahoma Law

Hygiea Casiano, UMan Psych

Sabrina Demetrioff, UMan Psych

Ruby Dhand, TRU Law

Kerri Joffe, ARCH

Adam Baker

James Gacek, URegina Justice

Rosemary Ricciardelli, MUN Sociology, Crim

Lauren Menzie, UAlta, Sociology

Taryn Hepburn, Carleton Sociolegal Studies

Alicia Dueck-Read, Robson Hall

Michelle Bertrand, UWinnipeg CJ

The Manitoba Law Journal has released volume 42(4) of its Criminal Law Edition (Robson Crim) and one of the featured articlesby Professor Craig Forcese raises compelling issues about intelligence reform in Canada. The article:

"...canvasses the “intelligence-to-evidence” dilemma in Canadian anti-terrorism. It reviews the concept of “evidence”, “intelligence” and “intelligence-to-evidence” (I2E). It examines Canadian rules around disclosure to the defence: the Stinchcombe and O’Connor standards and the related issues of Garofoli challenges. With a focus on Canadian Security Intelligence Service (CSIS)/police relations, the article discusses the consequences of an unwieldy I2E system, using the device of a hypothetical terrorism investigation. It concludes disclosure risk for CSIS in an anti-terrorism investigation can be managed, in a manner that threads the needle between fair trials, legitimate confidentiality concerns and public safety. The paper proposes both administrative and legislative changesaccomplishing these objectives."

Read more of this important piece by clicking here

We are thrilled to bring you the latest edition of the Criminal Law Special Edition of the Manitoba Law Journal - volumes 42(3)and 42(4). Academics, students and the practicing bench and bar continue to access this publication and contribute to it their knowledge and experience in the criminal law. The fact that we have, once again, elected to publish a double volume is a testament to the quality of submissions we have received over the last twelve months. We present twenty-five articles from twenty-nine authors, highlighting the work of some of Canada’s leading criminal law, criminological and criminal justice academics.

The Manitoba Law Journal remains one of the most important legal scholarship platforms in Canada with a rich history of hosting criminal law analyses.1 With the help of our contributors, the Manitoba Law Journal was recently ranked second out of thirty-one entries in the Law, Government and Politics category of the Social Sciences and Humanities Research Council (SSHRC). We continue to be committed to open access scholarship and our readership grows with each Criminal Law Special Edition released.

Our content is accessible on robsoncrim.com, themanitobalawjournal.com, Academia.edu,CanLII Connects, Heinonline, Westlaw-Next and Lexis Advance Quicklaw. Since our first edition in 2017, our Special Edition has ranked as high as the top 0.1% on Academia.edu where we have had 4,000 downloads and close to 7,000 total views. In the last twelve months, our own website, robsoncrim.com, has added almost 600 engagements with the Special Edition, attracting hits from Canada, the United States, United Kingdom, Australia and India.

Our readership engages with articles on subjects as diverse as the Tragically Hip and wrongful convictions,2 bestiality law,3 and the British Columbia courts sentencing response to fentanyl trafficking.4

Since launching in 2016, the Robsoncrim research cluster at the Faculty of Law, University of Manitoba, has continued to develop a unique interdisciplinary platform for the advancement of research and teaching in the criminal law. Robsoncrim.com has now hosted over 350 Blawgs, 5 with contributions from across the country and beyond. Our cluster has over 30,000 tweet impressions a month and our website has delivered almost 600 reads in the past twelve months. We are as delighted as we are humbled to continue delivering quality academic content that embraces and unites academic discussion around the criminal law. Our team of collaborators extends from coast to coast and is comprised of top academics in their respective crim fields.

The peer review process for the Special Edition in Criminal Law remains rigorously double blind, using up to five reviewers per submission, and has generated some truly wonderful articles for our readers. We are delighted to welcome long time contributors Dr. James Gacek and Dr. Rebecca Bromwich to our Robsoncrim.com online editorial team this year. James and Rebecca bring tremendous experience and an impressive body of law scholarship.6 As editors, we know they will continue to provide their collective wisdom to our publication and remain steadfastly committed to interdisciplinary and collaborative scholarship.

The upcoming year holds a number of exciting developments for the Robsoncrim.com collective. On October 26, 2019 we will be holding a national conference entitled “Criminal Justice and Evidentiary Thresholds in Canada: the last ten years” which will feature fifteen nationally established experts in criminal law and criminology discussing their original research in respect of evidence and knowledge production, marking the anniversary of the R v Grant7 decision from 2009. The conference will be free and will also go towards meeting the Law Society of Manitoba’s continuing professional development requirement. The event will feature Professor Kent Roach as a keynote speaker. The event will culminate in a special edition of the Criminal Law Edition slated for publication for 2020 and is supported by a Connections Grant from SSHRC as well a grant provided by the office of the University of Manitoba’s Vice President (Research and International). In addition, we will announce new membership to our editorial and collaborative team – visit Robsoncrim.com early and often for emerging details.

Our goal remains to provide a leading national and international forum for scholars of criminal law, criminology and criminal justice to engage in dialogue. Too often, these disciplines hide in silos, afraid to engage in cross- disciplinary exchanges. We believe that high quality publications in these disciplines, and indeed, other cognate disciplines, ought to exist in dialogue. We view this as crucial to enhancing justice knowledge: theory and practice, policy and planning, and even, in resistance to injustice. We strive to break down the barriers that keep these works in disciplinary pigeon holes. This is, of course, an ambitious path to embark upon, but the two volumes we have released this year represent another incremental step towards our goals. We hope you enjoy these volumes, and we thank our interdisciplinary collaborator team (https://www.robsoncrim.com/collaborators), our editorial team, our student editors and all of the MLJ staff.

Endnotes

1 David Ireland, “Bargaining for expedience? The Overuse of Joint Recommendations on Sentence” (2014) 38:1 Man LJ 273; Richard Jochelson et al, “Revisiting Representativeness in the Manitoban Criminal Jury” (2014) 37:2 Man LJ 365.

2 Kent Roach, “Reforming and Resisting Criminal Law: Criminal Justice and the Tragically Hip” (2017) 40:3 Man LJ 1.

3 James Gacek & Richard Jochelson, “Animal Justice and Sexual (Ab)use: Consideration of Legal Recognition of Sentience for Animals in Canada” (2017) 40:3 Man LJ 337.

4 Haley Hrymak, “A Bad Deal: British Columbia's Emphasis on Deterrence and Increasing Prison Sentences for Street-Level Fentanyl Traffickers” (2018) 41:4 Man LJ 149.

5 Amar Khoday, “Against the Clock: Criminal Law & the Legal Value of Time” (17 June 2019), online (blog): Robson Crim <tinyurl.com/y3npys9g> [perma.cc/KKN6-6N8C]; L Campbell, “A Reasonable Expectation of Privacy and the Criminal Code: Two Cases, Two Different Definitions” (30 July 2019), online (blog): Robson Crim <robsoncrim.com/single-post/2019/07/30/A-Reasonable-Expectation-of-Privacy-and- the-Criminal-Code-Two-Cases-Two-Different-Definitions> [perma.cc/DG4U-E2FE]; T Sicotte, “The Supreme Court Needs to Clean up the Sex Offender Registry” (18 July 2019), online (blog): Robson Crim <tinyurl.com/y6p5cg27> [perma.cc/VPN9-KFQG].

6 Rebecca Bromwich, “Theorizing the Official Record of Inmate Ashley Smith: Necropolitics, Exclusions, and Multiple Agencies” (2017) 40:3 Man LJ 193; Rebecca Bromwich & Jennifer M Kilty, “Introduction: Law, Vulnerability, and Segregation: What Have We Learned from Ashley Smith’s Carceral Death?” (2017) 23:2 CJLS 157; James Gacek, “Species Justice for Police Eagles: Analyzing the Dutch ‘Flying Squad’ and Animal-Human Relations” (2018) 21:1 Contemporary Justice Rev 2; Richard Jochelson & James Gacek, "Ruff Justice: Canine Cases and Judicial Law Making as an Instrument of Change" (2018) 24:1 Animal L 171.

7 R v Grant, 2009 SCC 32.

Punished for Aging: Vulnerability, Rights and Access to Justice in Canadian Penitentiaries

When: Friday October 25, 2019 at 3-4:30PM in Moot Court B

Who:Dr. Adelina Iftene, Schulich Law

Dr. Iftene will discuss her new book. Built around the experiences of older prisoners, Punished for Aging looks at the challenges individuals face in Canadian penitentiaries and their struggles for justice. Through firsthand accounts and quantitative data drawn from extensive interviews, this book brings forward the experiences of federally incarcerated people living their "golden years" behind bars. These experiences show the limited ability of the system to respond to heightened needs, while also raising questions about how international and national laws and policies are applied, and why they fail to ensure the safety and well-being of incarcerated individuals. In so doing, Adelina Iftene explores the shortcomings of institutional processes, prison-monitoring mechanisms, and legal remedies available in courts and tribunals, which leave prisoners vulnerable to rights abuses.

Some of the problems addressed in this book are not new; however, the demographic shift and the increase in people dying in prisons after long, inadequately addressed illnesses, with few release options, adds a renewed sense of urgency to reform.

Working from the interview data, contextualized by participants’ lived experiences, and building on previous work, Iftene seeks solutions for such reform, which would constitute a significant step forward not only in protecting older prisoners, but in consolidating the status of incarcerated individuals as holders of substantive rights.

Topic Overview

Voyeurism officially became a criminal offence in Canada when s 162 (voyeurism) was added to the Criminal Code of Canada in 2005. Since then, the Supreme Court of Canada (SCC) had not heard a case on the matter from when it was first enacted in 2005 through to the beginning of 2019. Then, in February of this year, the SCC delivered their first ruling on voyeurism in R v Jarvis – the case illuminates some of the important concerns held by the legislature and the judiciary concerning developing technologies and their relationship with personal privacy and sexual offences. While the SCC unanimously agreed that voyeurism includes a teacher secretly videotaping a student’s breasts they disagreed about how to determine where there is a reasonable expectation of privacy under the s 162 of the Criminal Code, voyeurism, laws.

Case Summary (R v Jarvis)

Ryan Jarvis was a high-school teacher in London, Ontario during the 2010-2011 period where he secretly filmed the face and cleavage areas of female students while talking to them at school. He surreptitiously used a camera that was hidden inside of his pen to hide the fact that they were being record. More than 24 videos were recovered from the pen with some as long as two-and-a-half minutes.

At trial, Jarvis was initially acquitted on a finding by the trial judge that it was unclear whether the videos of students’ cleavage areas were taken for a sexual purpose. The trial judge did however acknowledge that the students had a reasonable expectation of privacy while at school, in the classroom, walking through the halls, the cafeteria, staff offices, and while outside the building on school grounds.

On appeal from the Crown, the Ontario Court of Appeal affirmed the trial judge’s decision in aquitting Jarvis but provided different reasons for his innocence. The majority judgment reversed the finding by the trial judge and ruled that the videos of students’ cleavage areas were in fact taken for a sexual purpose. However, the majority of the court also reversed the trial judges finding that students have a reasonable expectation of privacy at while at school – the court reasoned that students should not have an expectation of privacy in public areas of the school such as the classroom or cafeteria.

On another appeal from the Crown, the SCC came to a unified ruling, on the determination of Jarvis’ innocence, wherein all nine Supreme Court justices found him guilty of voyeurism under s 162 of the Criminal Code of Canada – the opposite conclusion of both the trial judge, and the Ontario Court of Appeal. There were three key areas of agreement between the justices: that students had a reasonable expectation to privacy at school; that the videos were of a sexual nature; and agreement that s 162 of the Criminal Code (voyeurism) was passed as a proactive measure to address increasing concerns about more readily accessible, and evolving, recording technology that could be used for the invasion of privacy or sexual purposes. However, the Supreme Court justices were fractionated in their ruling on how to determine where a reasonable expectation of privacy exists, which result in two separate judgments.

Six justices formed the majority judgment which held that in order to determine whether a person had a reasonable expectation of privacy the court must consider the entire context in which the observation or recording took place. This includes: the location where the observation or recording occurred; the nature of the impugned conduct; the awareness or consent of the person who was observed or recorded; the manner in which the observation or recording was done; the subject matter or content of the observation or recording; any rules, regulations or policies that governed the observation or recording in question; the relationship between the parties; the purpose for which the observation or recording was done; and the personal attributes of the person who was observed or recorded. Conversely, the three justices representing the minority judgment more simply held that a reasonable expectation of privacy is infringed where the recording diminishes the subject’s ability to maintain control over their image and infringes their sexual integrity.

Comparing the Two Approaches to a Reasonable Expectation of Privacy

The approach taken by the majority to analyze whether there is a reasonable expectation of privacy in relation to a charge of voyeurism, was based on the jurisprudence surrounding s 8 of the Canadian Charter of Rights and Freedoms – which provides everyone in Canada with protections against reasonable search and seizure. S 8 enforces privacy rights (typically personal information) from unreasonable intrusion from the state and is therefore a comparable stepping stone for helping to establish grounds for enforcing privacy rights from unreasonable intrusion of other individuals. This lead to the SCC adopting an “entire context” approach where a lengthy non-exhaustive list of factors are considered to determine a reasonable expectation of privacy on a case by case basis. As the first ruling on voyeurism from the SCC this is a relatively unhelpful decision for determining when to pursue a legal action because it effectively means the courts should consider each case in isolation of their own unique factors and that judges should make instinctive decisions based on those factors.

In contrast, the approach taken by the minority is based on the principle that Charter values are only an interpretive aid in cases of ambiguity and that the definition of a reasonable expectation of privacy is clearly interpretable from the language used in s 162 of the Criminal Code. The first part of the test, “control over their image”, references who was in charge of the situation, and the second part of the minority’s test “infringes their sexual integrity” is taken from the sexual nature of the behaviour describe in s 162 (1) (a-c) of the Criminal Code. What the minority provides is a simple, clear, and effective two-part test for making a determination as to whether there is a reasonable expectation of privacy. This makes sense because the brunt of the analysis should be in determining whether the recordings were of a sexual nature as the purpose of the voyeurism legislation was to protect against sexual recordings with concern for developing filming technology.

The Balance between Privacy and Technology in 2019

It was George Orwell who first wrote that “Big Brother is watching you”, in reference to a slippery slope of government supervision which could lead to extremes such as a police state. While that may very well have been a legitimate concern in 1984 when he wrote the quote, in 2019 it is not just “Big Brother” that people should be worried about, rather, an equally daunting concern is rising wherein everyone and their dog either owns a spy drone or has easy enough access to obtain one within a 24-hour period. Beyond drones, for less than $100, Canadians can obtain a host of recording devices from a home-security sets to cameras embedded in everyday appliances.

With such easy access to recording technologies there is reasonable growing concern that privacy is being more and more impeded and may soon face extinction. One issue with enforcing privacy is that it can be difficult to mount a legal action action for breach of privacy where drone are used to commit the breach. The first issue with starting a lawsuit is that one may not know who is controlling the drone and there who to sue; second, not everyone has the tens of thousands of dollars it costs to complete a claim; and finally, by the time an action is completed years of breach of privacy by drone may have occurred. A fourth concern with other types of hidden cameras is that individuals are not even likely to know that they are being recorded and their privacy has been breached.

Because of these difficulties presented by developing technology that makes recording devices smaller, more powerful, and easier to hide the user’s identity the law must respond by encouraging more stringent police investigations and more frequent prosecutions when perpetrators are caught. Finally, to balance the pendulum swaying towards elimination of privacy, the law should favour a conviction of breach of privacy as a policy reason for deterring future breaches of privacy.

R v Jarvis is a clear example of a case where it has taken years to convict someone who had concealed a camera and secretly made sexual recordings; these recordings were also taken by an individual in a place of power, a teacher, that misused their special relationship and responsibility of care over their students to videotape them. Even in light of these extreme facts it still took two appeals to for the courts to find a conviction against Jarvis at the SCC as the two lower level courts refused to find him guilty. Not only should cases like this be more clearly identifiable as voyeurism in breach of privacy of a sexual nature but they should also not be centrally argued on whether or not a reasonable expectation of privacy can be found as the dwindling right to privacy should be more strictly protected.

A Proposed Solution to Reforming a Reasonable Expectation of Privacy

I would propose that the solution for protection the right to privacy would be for courts to reverse their approach and adopt an assumption that there is always a reasonable expectation of privacy: This assumption would be accompanied by two defences unique to cases of privacy where first, if the breach of privacy is committed by the one in possession of the property, or an agent acting on behalf of the individual in possession, for security purposes, then they may legally engage in a breach of privacy; and second, if the recorded individual provided consent then it is permissible.

The initial assumption provides the greatest protection of privacy by stipulating that there is a positive assumption that an expectation of privacy exists whether on public, private, or other types of property. The defences then function to protect individuals who wish to make consensual recordings or should have a right to make recordings for the sake of protection and security from being wrongfully sued or convicted of an offence. The first defence, security recordings, allowing property holders and agents to lawfully make recordings to protect people or property – these would include, for example, security cameras, and police investigation/interrogation recordings. The second defence protects individuals who had consent to take the stipulated recording and this would range from contractual agreements to friends who have requested a picture.

The approach of this legislation would be to effectively hold that there are only two scenarios in which society finds it permissible to make a recording: (1) for security and safety purposes, and (2) where the recording is consensual.

In practice, people could still have security cameras at their homes or businesses, and friends could still take pictures of one another or their children. The major difference in our legal framework and the cases coming before the court would be in that people could not take pictures of others who have not given consent at the beach, or a party, or record footage of a sporting game to which not all players agreed to be filmed.

The positive effect would be that anytime a non-security/safety secret recording device was found there would be an immediate source for a charge or lawsuit because this behaviour is intolerable in society and would not be consensual. While there would be cases that would be illegal wherein parents harmlessly took pictures of a sporting game when there kids were playing these cases would rarely come to court as they would not be worth the time or money to pursue. Contrarily, if the cases are often brought before the court it would show that the law is well-supported by society and that it is good it was enacted.

Citations

R v Jarvis –

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17515/index.doS

S 162 of the Criminal Code of Canada (Voyeurism) –

https://laws-lois.justice.gc.ca/eng/acts/c-46/section-162.html

S 8 of the Canadian Charter of Rights and Freedoms –

https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art8.html

The topic of sexual violence continues to be a hot debate in the public sphere. One such discussion topic that continues to spark heated debate is the concept of ‘consent.’ The reason that this topic can cause quite a stir is because people around the globe differ in views about the definition of consent. For instance, some people believe in the notion of implied consent, some believe that ‘no means no’ and others take the approach that only ‘yes means yes.’ Having these discussions are important because they educate members of society on the law and they can adjust social norms.

When this topic erupts, I tend be a passive listener. Being a wallflower does not necessarily mean that I do not have an opinion on the topic. Quite the contrary, sometimes the passive listener has the most to say. You see amongst the sea of faces in the class room and in the public sphere, quiet people like me who have experienced sexual violence. This should not come as a shock. If I look around my class, statistically one in three of my female colleagues and one in six of my male colleagues have likely experienced some from of sexual violence in their lifetime. [1] Yet we remain silent. This is because at the core of sexual victimization, is the stigma associated with it. In fact, according to Statistics Canada, “sexual assault is one of the most underreported crimes. And the research has attributed this to a wide range of reasons, including the shame, guilt and stigma of sexual victimization.” [2]

Over the course of my studies, I have had the opportunity to read many cases on this topic. One of the most significant cases I have read in my academic career is the Supreme Court’s decision in R v Ewanchuk [3]. This was a significant case in Canada because it defined the law of consent. [4]

In Ewanchuk, a 17-year old girl went for a job interview inside a van. When she was inside the van, the accused closed the door and made sexual advances at her. When the girl would tell him no, Ewanchuk would stop, but than he would start back up again in escalating advances. At trial, she testified that she did not take further actions, though she said no at multiple times, to stop the sexual conduct and explained that her inability to leave or resist Ewanchuk’s sexual advances was because she feared what he might do to her.

Ewanchuk argued that she did not proceed to object to his actions, which constituted for some of the judges in lower courts, a notional defence of “implied consent.” Ewanchuk was acquitted at both the trial and at appeal level. The Supreme Court of Canada disagreed and held that there is no defence of “implied consent” in Canada [5] and he was convicted. The Majority unpacked the meaning of consent in sexual assault cases. There is an actus reus component; “consent” means the complainant in her mind wanted the sexual touching to take place, and was not fearful or coerced into providing the consent. Nonetheless, an accused can assert the mistaken belief in consent defence to demonstrate they did not have the mens rea for the offence due to a reasonably demonstrative misapprehension as to consent. For victims of sexual assault, this was a victory and a defining moment of positive change. It marked the start of the ‘no means no’ era. [6]

When I read the decision in Ewanchuk, I felt that the decision was lacking in its analysis on the actus rea component. In paragraph 39 the Supreme Court explains that:

If a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established. The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective. [7]

I want to be clear, I think that the Supreme Court came to a good decision in Ewanchuk and I don’t believe that they erred in their decision. As a victim of a sexual crime, I wish that the jurisprudence would expand beyond the context of fear/duress and acknowledge the feelings of shame. For me, Ewanchuk perpetuates a stranger danger phenomenon. However, this is not often the case. According to Statistics Canada sexual assault offenders are often known to their victims. The data showed that “a friend, acquaintance or neighbour was the offender for 52% of sexual assault incidents, while a stranger was the offender for 44% of incidents.” [8]

“From a very young age we are taught to fear strangers. So, we grow up thinking we can pinpoint potential perpetrators—the creepy guy in the park, the man in the hoodie walking closely behind you. When we believe that these types of myths are reality, victims start to question what happened to them and are reluctant to report.” [9]

I can honestly tell you that fear was not the emotion that I held. I knew my perpetrator. Rather, I felt a deep sense of shame that followed me throughout my entire life. In addition to shame, I had an intense fear of the disapproval of others and a fear of being ostracized from friends and family. Gershen Kaufman, an expert on the emotion of shame stated in his book Shame: The Power of Caring, “Shame by its very nature, is humiliating.”[10]

The victim feels invaded and defiled, while simultaneously experiencing the indignity of being helpless and at the mercy of another person. Shame is a feeling deep within us of being exposed and unworthy. When we feel ashamed, we want to hide. Being shamed feels like being banished and unworthy to be around others. [11]

Victim’s advocate, Greg Gilhooly echoes my feelings. Gilhooly who was one of the first minor hockey players victimized by Graham James in the 1970s and 1980s, before James met and abused Sheldon Kennedy and Theo Fleury. Gilhooly who kept the abuse secret for years explained that the label triggered fears of being ostracized within hockey at the time. In Gilhooly’s book, I Am Nobody: Confronting the Sexually Abusive Coach Who Stole My Life, he explains that the abuse, turned him into “nobody at all.” “It stripped him of his self-esteem. It made him question his identity and his sexuality. It set him on a decades-long course of self-sabotage. He explains, I didn’t trust myself to understand who I was because I didn’t understand how I let this happen to me.” [12]

As a one-day inspiring lawyer I want to explain that I am not jumping on every victim’s rights movement. In fact, quite the contrary, I am a strong believer in the presumption of innocence, and I believe justice is a balancing act. However, for the law to evolve, “society needs to understand the offence better to ensure justice.” [13]

What ever happened to Ewanchuk? Ewanchuk, who was acquitted at two levels of Court before being convicted at the Supreme Court is now a prisoner incarcerated in Bowden Institution. After his release from prison from assaulting the 17-year-old girl, he went on to sexually assault an 8-year-old child, which resulted in a 16.5-year sentence. [14] This would be Ewanchuk's fifth sexual assault conviction.[15]

[1] “Statistics,” online: Sexual Assault Centre <http://sacha.ca/resources/statistics>.

[2] Shana Conroy & Adam Cotter, “Self-reported Sexual Assault in Canada, 2014,” (11 July 2017), Statistics Canada, online: <https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/14842-eng.htm>.

[3] R v Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330.

[4] Jeremy Barretto, Ten Years After R v Ewanchuk: Confirmation That No Means No, online: the Court <http://www.thecourt.ca/ten-years-after-r-v-ewanchuk-confirmed-no-means-no/>.

[5] Valerie Borodina, “R v Ewanchuk,” (27 March 2015), online: <https://prezi.com/z6imkbf-lwii/r-v-ewanchuk/>.

[6] Supra note 4.

[7] Supra note 3 at 39.

[8] Supra note 2.

[9] Shawn Fields, “Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders,” (2017) Wis L 149 Rev 429 at 429.

[10] Beverly Engel, “Why Don’t Victims of Sexual Harassment Come Forward Sooner?” (16 November 2017), online: Psychology Today <https://www.psychologytoday.com/ca/blog/the-compassion-chronicles/201711/why-dont-victims-sexual-harassment-come-forward-sooner>.

[11] Ibid.

[12] Nick Faris, “Greg Gilhooly Speaks Out: How One of Graham James First Alleged Victims Found Justice” (7 March 2018), National Post, online: <https://nationalpost.com/sports/hockey/greg-gilhooly-speaks-out-how-one-of-graham-james-first-alleged-victims-found-justice>.

[13] “A Lesson in Fixing a Flawed System, Lawyer, author and survivor Greg Gilhooly Spoke to law students on Criminal Justice Reform for Victims of Sexual Assault,” (22 March 2018), UM Today, online: <http://news.umanitoba.ca/a-lesson-in-fixing-a-flawed-system/>.

[14] R v Ewanchuk, 2010 ABCA 298, [2010] A.W.L.D. 4841 at para 1.

[15] Ewanchuk v Canada (Attorney General), 2017 ABQB 237, [2017] 9 W.W.R. 533 at para 1.

2017, the year of #MeToo is behind us, which means we’re no longer shocked at the prospect of a government official grabbing a woman by her genitalia, Harvey Weinstein’s career is decidedly over and countless male comedians have written half-hearted apologies for masturbating in front of female fans in last-ditch attempts to salvage their affiliations with the few bigwigs who had yet to officially cut ties with them.

Two years later, after legions of people in the public eye have taken a stand against abusers in an industry fueled by sexual exploitation, it would seem to most of society that we’re reaching a turning point regarding women’s rights, particularly in the workplace.

The truth is, the war is far from over. We are only now beginning to see the trickle-down effect of how the lifestyles of the rich and famous impact the fiduciary or sexualised relationships in our own daily lives and jobs. Speaking from experience, employers that grossly benefit from the assumption that women will tolerate sexual misconduct are still a dime a dozen, their behaviour largely unchanged by such an immense social phenomenon.

Many people, more than we’d like to admit, believe that from sex workers to retail sales associates to servers, women are signing themselves up to be subject to degrading remarks or outright sexual assault by working in a given field. Others even go as far as to justify these behaviours by pointing out that some women choose to appear in a manner deemed ‘sexual’ by society, as if it’s an open invitation to be on the receiving end of criminal acts that generally go unpunished. It is especially so in the restaurant industry.

The Criminal Code defines sexual assault as the intentional application of force to another person, whether directly or indirectly. Attempting to or threatening to apply force to another person, where they either have, or lead that other person to believe they have, the ability to affect their purpose is another form of sexual assault.

From experience, I am familiar with both forms of sexual assault, but have either failed to appreciate them as criminal acts in the moment, or have felt that pursuing legal action wouldn’t be worth the time or energy likely required to lay a conviction. From experience I can also say that I am not alone and have had countless women in the workforce share their stories with me.

From outright groping to brushing against someone when there was space to get by without physical contact, unconsensual touching is the cornerstone of sexual assault in the restaurant industry. How does this tie into the Code? Intentionality. Often, these acts are accompanied with a shrug as if to suggest the assailant couldn’t ‘help himself’, or a laugh when they realize the discomfort they’ve caused. They are more than merely incidental acts of physical contact. There is often a level of taunting, and in situations where the assailant refuses to feign innocence, the risk of trauma is even greater for the victim. This open secret in the restaurant industry forces people into a tough spot: access to a livable wage at the expense of human dignity.

As a server, you can make anywhere from no tips to several hundred dollars in an evening. As such, we’re conditioned not to flinch at the feeling of foreign bodies pressing up against ours, as hot dishes and sharp knives parade by. Our bodies ostensibly become public domain. This is an institution where men flaunt their sexual misconduct at young girls the same way they would an Ivy League degree, and sometimes other women, hardened by their long careers in the industry, are complicit in such wrongdoing.

Clearly, what establishments expect of service staff and how staff see their role are two different stories. I’m of the belief that a worker’s responsibilities are to show up on time, leave their personal life at the door and ensure that they’re facilitating an enjoyable experience for the client. What employers in the industry expect is someone who will take kindly to being cornered by drunk customers on their way back from the bathroom, nod and smile when cooks flick their skirt as they walk by.

But at what point does our failure to report these acts constitute consent or acceptance? In my view, never. Explanations of discomfort are often dismissed, or result in threats to our job security, even after reporting the most egregious of misconduct to our superiors. Far fewer criminal assault cases see the light of day than the actual frequency at which the crimes occur. This is due to a combination of our notion of sexual assault being affected by what is portrayed in the media, the societal stigma that continues to exist post-#MeToo and the trauma of explaining the events to authorities who may not be sympathetic to what occurred.

The disturbing thing is that the desensitization we experience as employees of a multi-billion dollar industry that profits off of our mistreatment speaks volumes about the lengths we’ll go to avoid having to make things “awkward”, to share our stories of abuse with other women and to merely stand up and say no. After all, that’s what the industry is, isn’t it? Just one long no that men think is a wink and an unspoken yes.

In 2014, the small country of Brunei, on the island of Borneo, became the first East Asian nation to supplement their existing civil penal code with Sharia law. Otherwise known as Islamic law, Prime Minister and Sultan Hassanal Bolkiah enacted the Syariah Penal Code Order, to be implemented on a roll-out basis. Sharia law calls for the enforcement of strict corporal punishment in response to a variety of criminal acts that are seen as incompatible with Islam. Most recently, the code has established that the punishment for engaging in consensual homosexual sex or anal sex is death by stoning, which applies to Muslims and non-Muslims alike.

In effect as of April 3rd 2019, the new provisions stirred an international outcry. The public have initiated boycotts on businesses owned by or affiliated with the Sultan and his administration, such as the Dorchester Collection, which owns nine luxury hotels throughout North America and Europe. Similarly, authorities such as Amnesty International and Human Rights Watch have referred to the provisions as “vicious punishments”<1> that violate the country’s international legal obligations.<2> That being said, it is yet unclear whether highlighting the human rights implications of the country’s new laws will lead to change.

In Canada, the Canadian Charter of Rights and Freedoms protects citizens against government policies, legislation or initiatives that infringe upon human rights, such as discrimination on the basis of sexual orientation or religion. The rights afforded by the Charter are crucial, particularly in the context of criminal legal proceedings and the administration of justice. They outline the importance of treating all people with dignity and respect, irrespective of aspects of their identity that may differentiate them from other demographics. Meanwhile, 70% of the Brunei’s population is Muslim, forcing religious minorities to subscribe to ideology that may be irreconcilable with their beliefs, which speaks to another facet of Sharia law’s threat to fundamental human rights.

Adding to the conflicts of Muslim and non-Muslim, or gay and straight, the recent provisions also highlight another, less explicit issue of inequality: trans erasure. While “homosexual sex” is punishable by death, the provisions establish that “lesbian sex” is punishable by forty lashes with a whip. One could reasonably infer, in light of the consequence for anal sex also being death, that gay sex here involves men with penises. Correspondingly, lesbian sex, the punishment for which is far less severe, must apply to women with vaginas. Bruneian law operates on the presumption that genitalia determines gender, which in turn contributes to the disparity between the distinct punishments for the two sexual acts.

What the vocabulary used tells us is that the nation of Brunei has no regard for the lives of queer people of any designation, whether transgender and/or homosexual or other. Irrespective of punishment, reducing an entire demographic of people to a body part is dehumanizing and antiquated. This rigidity is in sharp contrast with the Charter, which allows for an expansive approach in the court’s consideration of previously unrecognized forms of discrimination, where an analogous ground is successfully compared to a preexisting (enumerated) right.

While it is not difficult to understand that the laws are brutal in nature, it may be more challenging to grasp that countries can opt not to abide by international law. Given the how many jurisdictions and legal systems exist, the strict enforcement of international law would be an extremely complex undertaking. As a result, the only potential ramifications flowing from these atrocious punishments are unstable international relations with larger and more powerful countries, or economic sanctions. Being a country rich in oil, the Brunei government might only be forced to modify such laws if they experience a sharp decline in oil sales as a result of the enactment.

An affront to basic human dignity, the laws are Draconian in comparison to the constitutional issues that affect similarly marginalized groups in Western countries. Given that such as gay marriage, adoption and biological parenting have generally been normalized in modern Western society, it is especially horrifying that laws calling for the stoning of the LGBTQ2S+ community not only continue to exist, but are continuing to be enacted. Consequently, the new penal code not only calls into question the morality of using death as punishment, but it also raises questions about Brunei’s place in the context of an increasingly global society.

1 https://www.cnn.com/2019/03/27/asia/brunei-anti-lgbt-stoning-law-intl/index.html

2 https://www.hrw.org/news/2019/04/03/brunei-new-penal-code-imposes-maiming-stoning

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Manitoba is facing some of the highest numbers in the nation regarding repeat offenders. Overall, there is a 33 per cent recidivism rate for offenders who receive a jail sentence as part of their criminal conviction. For youth, Manitoba has the highest rate of recidivism in the country, at approximately four times the national average. For adults, Manitoba has the highest adult incarceration rate among the provinces. This number increased by 64 per cent between 2006-2017. To calculate recidivism rates, Manitoba Justice looks at those who have been convicted of a criminal offence or have probation supervision within two years of completing a prior sentence. Therefore, these numbers do not capture those who commit offences outside of the two-year period.

Although the statistics above may seem to paint a gloomy picture of the justice system in Manitoba, the data is clear; when offenders are paired up with community supports or perhaps an alternative sentencing remedy recidivism rates drop. Community-based sentencing focuses on providing alternative ways to sentence offenders other than by sending them to jail. Community-based sentence looks at other options like restorative justice processes, community service options, treatment for addictions and/or looking at workplace support initiatives. Some of the most recent numbers from Manitoba Justice demonstrate that community-based sentencing sees recidivism rates drop by over half to 15 per cent.

Manitoba has other progressive initiatives that seek to provide supports to offenders depending on the specific barriers they may face in the regular court system. For example, the Winnipeg Drug Treatment Court program, which is available to offenders who commit crimes because of their dependency on drugs. This Court takes into consideration their addictions in assessing their sentences and include counselling and treatment for the offender. Re-offending rates drop to 11 per cent in this Court.

The Mental Health Court in Manitoba is also a progressive option for those suffering from mental illness. Custodial sentences are not made in this court, because offenders either have their charges stayed or are served a community-based sentence. There is a mental health professional as a part of the assessment team.

Also, this past February, a new Manitoba court was opened to recognize the different needs of people with fetal alcohol spectrum disorder (FASD). This new court will sit one day per week and will include judges who have a profound understanding of the intricacies of someone with FASD. The courtroom itself will be slightly different in order to accommodate the needs of someone with FASD. The room will be quieter, with fewer distractions.

These initiatives are very important and are a huge part of supporting those who may not be appropriately treated in the regular court system. However, there are other issues in the system that preclude these programs from reaching their full potential.

For example, Manitoba has a very high number of people who are being held in custody on remand. Approximately two-thirds of inmates in provincial jails are waiting for a court date. This means, that if they are not allowed out on bail, they will be waiting for their day in court in jail. During this time, their access to supports and programming is limited. This delay may affect recidivism rates.

For obvious reasons, many of these non-custodial options are reserved for those who have committed less serious crimes. This is logical, but also begs the question of whether those who commit the most serious crimes may be the ones in need of the most supports. Although this concept is an uncomfortable one, it is fair to question the outcomes of the current system and consider whether there are more creative ways that could encourage lower rates of re-offending for the most serious offenders, but also ensure the deterrence and moral components of our justice system are recognized.

As we all consider our future as lawyers or as general members in the legal community, it is important that we recognize that we can play a role in supporting a better system. There will be many options for us to participate in community initiatives, pro bono activities, or assisting with new creative and progressive judicial programs.

However, one of the most important issues facing Canada’s legal system is the lack of visible diversity. By including people with different backgrounds and perspectives not only as lawyers and judges, but within all levels of the legal system (RCMP, WPS, correctional institution, etc.) we would create a better, stronger and more fair legal system. Currently, Indigenous people make up 18 per cent of Manitoba’s population, but represent approximately 74 per cent of inmates in provincial jails.

As a legal community, we need to do better to understand this. It is clear that minority groups are no less talented and having more visible representation of marginalized groups would likely improve efficiency in the Canadian legal system. Some may argue that the law is an objective and neutral arbitrator and therefore the diversity of the legal community is irrelevant to the outcomes of justice, but I disagree. The individuals that are behind the law, in many difference capacities, shape our legal system, and how those involved in it are treated. It is a naïve approach to believe that bias plays no role in the legal community. It is clear that there is no rational reason to continue to exclude marginalized groups. In fact, more should be done to ensure that those who had been traditionally excluded take on publicly visible roles. By putting visible minorities in position of authority it will not only make our legal system better, but it will send a message that this is space for all people to participate in at a decision-making level.

Sources

https://news.gov.mb.ca/news/index.html?item=45038

https://www.justice.gc.ca/eng/rp-pr/jr/rg-rco/2018/mar07.pdf

https://www.cbc.ca/news/canada/manitoba/fasd-court-manitoba-1.5004051

http://www.manitobacourts.mb.ca/provincial-court/problem-solving-courts/mental-health-court/

http://www.manitobacourts.mb.ca/site/assets/files/1081/wpg_drug_treatment_court_brochure-web.pdf

Richard Devlin, A. Wayne Mackay & Natasha Kim, “Reducing the Democratic Deficit: 1 Representation, Diversity and the Canadian Judiciary, or Towards a “Triple P” Judiciary” (2000) 38:3 Alb L Rev 734 at 789, 796.

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As a society, we place enormous value on our section 8 Charter privacy right which protects us from unreasonable privacy infringements. Despite this, we are constantly surrounded by cameras nearly everywhere we go- from supermarkets, to schools, to the roads. Although we are a far cry from an Orwellian society where “Big Brother is always watching”, a line still exists that, when crossed (usually criminally), it’s left for the Court to determine whether our privacy right guaranteed under the Charter was infringed.

In the recent case of R v Jarvis, the accused, a teacher in London, Ontario, used a video pen to record his female students’ cleavage and chest areas without their knowledge or consent. Mr. Jarvis was charged with voyeurism under the relatively new s 162(1)(c) of the Criminal Code which reads:

162(1)

Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if…

(c) the observation or recording is done for a sexual purpose.

Since there was no question that Mr. Jarvis made videos of his students for sexual purposes, the main question before the Supreme Court was whether the students recorded by Mr. Jarvis were in circumstances that would give rise to a reasonable expectation of privacy.

In reviewing the facts of the case, the Court decided to take an expansive rather than narrow reading of s 162(1) because a narrow reading would undermine Parliament’s purpose to prevent sexual exploitation- particularly that of youth.

In their ruling, the Court raised several legal principles regarding privacy. First, in determining whether a person can reasonably expect privacy in a situation requires a contextual analysis. Secondly, privacy is not an all or nothing concept. Finally, they held that just because you know that you are observed, it doesn’t mean that you give up your privacy rights- something that’s especially pertinent in today’s society where cameras are virtually everywhere.

Writing for the majority, Justice Wagner of the Supreme Court held that “in determining whether a person who is observed or recorded was in circumstances that give rise to a reasonable expectation privacy is whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation at issue”.[1] To illustrate this, they gave the example of a woman in a washroom and a person in a public park. Whilst a woman in a public washroom should expect a high degree of privacy (i.e. no video recordings), a person lying on a blanket in a public park should expect a lesser degree of privacy. In their application of the test, the Court looked at contextual factors to determine whether the students recorded by Mr. Jarvis had a reasonable expectation of privacy including:

(1) Location where Mr. Jarvis made the recordings

(2) What he recorded

(3) Consent (or lack thereof) of the students recorded

(4) How Mr. Jarvis made the recordings

(5) Who and what Mr. Jarvis recorded

(6) Rules that regulated or prevented Mr. Jarvis from recording

(7) Relationship between Mr. Jarvis and those recorded

(8) The purpose of Mr Jarvis’ recording

(9) Personal attributes of the students recorded

The Court first looked at location and ruled that a school isn’t a public nor a private place, but rather a quasi-public place where entry is limited to certain people including teachers, students and other employees. While the Court found that students should have lowered expectations of privacy in areas like hallways where there are lots of students, they also found that there were school board rules governing recordings like those made by Mr. Jarvis- which should have given the students some expectation of privacy. Secondly, the Court found that the students didn’t consent to the recordings and were recorded using hidden camera technology. Finally, the sexual subject of the videos and the societal view that sexual body parts should be afforded high levels of privacy. Ultimately, these contextual factors (alongside other contextual factors) resulted in the Court ruling that Mr. Jarvis’ actions were indeed an infringement of the students’ reasonable expectation of privacy.

The Court’s definition of a “reasonable expectation of privacy” in R v Jarvis starkly contrasts cases like R v Le where I believe the Court gave the phrase a “reasonable expectation of privacy” an arguably different meaning. The facts of Le are quite simple: a young man named Tom Le was in his friend’s backyard when several police officers entered the backyard on the premise that they wished to speak with the occupant of the house. Le had a bag with him that contained drugs, money and a weapon. The police didn’t like how Le handled his bag and questioned him about it… and Le made a run for it. Le was ultimately charged with ten criminal offences which were upheld both at the Ontario Superior Court of Justice and Ontario Court of Appeal.

In their ruling, the Court of Appeal found that the police were unlawfully on Le’s friend’s property. They then applied a similar test to Jarvis and looked at whether Le had a reasonable expectation of privacy in his friend’s backyard. Unlike Jarvis however, the Court ruled that Le had no reasonable expectation of privacy in the backyard because he didn’t control who came and went. If the same reasoning was applied to Jarvis, it’s likely that the students wouldn’t be found to have had a reasonable expectation of privacy because they didn’t control the comings and goings of people in the school. While it’s beyond dispute that the manner in which both Le and the students of Jarvis were observed was unlawful, I believe that the context is where the distinction between these two cases arises. Whilst Le was observed by police officers who were in the course of their duties and afforded a lower “reasonable expectation of privacy”, the students in Jarvis were afforded a higher “reasonable expectation of privacy” because the case involved alarming contextual factors including the sexual nature of the videos and the special bonds formed between a teacher and his students (which in no way should be sexual).

If anything is made clear from these two cases, it’s that in light of the criminal law, what constitutes a “reasonable expectation of privacy” is truly a sliding scale which is left to the Court to decide on a case-by-case basis.

Sources

Legislation:

Criminal Code, RSC 1985, c C-46.

Jurisprudence:

R v Jarvis, 2019 SCC 10.

R v Le, 2018 ONCA 56.

Jack Sparrow. The Captain of the Black Pearl and legendary pirate of the Seven Seas, Captain Jack Sparrow is the irreverent trickster of the Caribbean. Fictional run-ins with the East India trading company, stealing treasure, and ultimately fighting for territory seems like quite far-fetched from reality. But the truth is Piracy, not even in its online form, but rather maritime piracy is making a sizeable come back in certain areas of the globe, and the problem is prosecution of these pirates, and protecting yourself from them, is not as easy as it once was or appears in the Pirates of the Caribbean.

According to Paul Bruno, most sea piracy is a crime of opportunity. Pirates, like other criminals, avoid operating in difficult environments. If controlling factors are not present then the possibility of piracy grows along with the severity of pirate attacks. The main reasons for piracy are not exclusive to crimes against ships. Social acceptance, lack of legal consequence, chronic unemployment, and opportunity all play a role in supporting a criminal enterprise.”

The Criminal Enterprise aspect is large. The Pirates are not part of an organized syndicate, like what we would see in Pirates of the Caribbean, or the historically pirate culture, rather they are often disenfranchised individuals picked up by larger organizations, promised what they think is a lot of money, and sent off to steal and kidnap. Some Pirates have actually been found to be functioning at the behest of terrorist organizations who gain a portion of the ransom or funds collected by the pirates. So how do various nations who utilize this shipping route combat piracy? Can they actually prosecute them, or do they need to be deterred away via military and lethal force?

The issue is that the legal strategy is constantly changing, only in a few American cases were pirates actually criminally charged by the country of the citizens they attacked. In other cases, the Pirates are charged on the basis of the flag they fly on their vessel. Hugh Williamson reports in the Canadian Naval Review that, “Because most of the piracy was rooted in Somalia, under the authority of several UN Security Council Resolutions, the universal jurisdiction for high seas piracy was extended into the territorial seas and on to the land of Somalia. This allowed foreign militaries to take action against suspected pirate vessels or pirate bases ashore. It was made very plain, however, that this situation applied only to Somalia, and did not expand the international laws dealing with piracy with respect to other states.

The report also identifies three methods of prevention, however international law and criminal law may actually hinder the self-protection. In theory, the first solution is for the vessels to defend themselves, or arm themselves with deterrents. Current international law does not recognize the ability to arm yourself, even though in centuries prior arming your vessel to protect yourself from piracy was totally legal. Insurance companies also warn against it on the basis that there is a lack of specialized training, and it may lead to more harm than good. The second remedy to Piracy is to have Canadian Warships escort the vessels, which in theory sounds good, but also actually violates international law unless every time they are in another territory water they get permission. As stated by the Canadian Naval Review, “Any Canadian warship accompanying them would be in violation of the rules of innocent passage and could only be present with the consent of the coastal state.”

The final but more common option is hiring a private protection company. This is does not come without its own issues. There have been instances where the private protection has occasionally tortured or killed surrendered pirates. One security team set fire to a small pirate boat filled with bound pirates and was intentionally circulated online as a warning to other pirates. This is its own legal issue, specifically an issue of jurisdiction regarding federalism. The shipping itself and maritime laws falls under the federal government, while the regulation of private security companies comes under provincial jurisdiction. Therefore the protection against piracy becomes even more complex.

If we really break this down, it is both difficult to prosecute or protect from modern day pirates. There is no set legal process for dealing with international pirates, and there defending yourself may end up having you criminally charged regarding various policies of both Canadian maritime law, and the laws of the state whose water you happen to be in. While the title of this article was meant to be remotely humourous, the reality is we not actually be able to prosecute Captain Jack Sparrow, or defend yourself from the black pearl, especially if he is operating in or out of Somalia.

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It is always wonderful when a new collaborator joins the team at Robsoncrim.com. Our collaborators help our blogging happen, but more importantly they continue to expand our network across Canada joining criminal law, criminology, justice and corrections scholars in a living constellation of knowledge dissemination. They are also vital for our peer review network for the Manitoba Law Journal's Robson Crim Edition. We are delighted to have Dr. Rosemary Ricciardelli join us at Robsoncrim.com.

Dr. Rosemary Ricciardelli is a Professor of Sociology, the Coordinator for Criminology, and Co-Coordinator for Police Studies at Memorial University. Her research is centered on evolving understandings of gender, vulnerabilities, risk, and experiences and issues within different facets of the criminal justice system. Beyond her work on the realities of penal living and community re-entry for federally incarcerated men in Canada, her current work includes a focus on the experiences of correctional officers and police officers given the potential for compromised psychological, physical, and social health inherent to the occupations. Her sources of active research funding include: Correctional Services Canada, the Social Sciences and Humanities Research Council of Canada, the Canadian Institute of Health Research (CIHR), Memorial University’s Office of the Vice President Research and Harris Centre.

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If you were born in the 1990’s, much of your growth period or learning period, would have been just post 9/11. Since that horrible tragedy, the concept of protecting the “homeland,” form foreign and domestic terror has become a major focus in North America, not strictly limited to the United States. Canada has seen its fair share of terror attacks, some as recent as 2018, such as the van rampage in Toronto on April 23, the Quebec City mosque shooting on January 29, 2017, and the stabbing and vehicle attack in Edmonton on September 30, 2017. What is ever changing is the nature of what inspires the attackers.

Going back to the attacks of September 11th 2001, Al-Qaeda, a sophisticated terror organization with multi-million dollar funding, arguably from various states, and wealthy individuals coordinated attack on a foreign state by destroying civilian targets. It was planned, and training took years, according to the 9/11 Commission Report. Arguably, what we see now globally, are not planned or sophisticated attacks, rather they are “lone wolf terrorist attacks,” individuals radicalized via the internet or hate of some sort who commit atrocities in the name of the cause they represent. We saw this in Christchurch, when a white-nationalist slaughtered innocent worshipers at a mosque, we saw this with the van rampage in Toronto, with a self-proclaimed “incel” who hated women, and we saw this in Ottawa when an ISIS inspired individual murdered a Canadian soldier, and attempted to kill parliamentarians.

Criminal Laws regarding terrorism in Canada are quite reasonable, they are even so up to date that they include prosecuting individuals who leave Canada to join terrorist entities. The question is, how does one prevent the poisonous ideologies from seeping into the minds of those who are vulnerable? Can Canada implement punishments for distribution of material? Can they sensor it? Has that already been done? How does the state patrol these ideologies without breaching freedom of conscience?

Many questions, some of which have been answered by the Canadian Criminal Code. The recent addition of Bill-59, makes it a criminal offence to “advocate or promote the commission of terrorism offences in general” and “terrorist propaganda.” It can amount to five to ten years in jail. Interestingly, even if you share material or compliment the dealings of a terrorist style ideology, (Incel, white nationalist, radical religious fanatics, etc,) without the intent of causing harm or a terrorist style attack, you can still be charged.

I would suggest while it is good to penalize individuals for support of terror, it still does not prevent the root cause of people being inspired by these hate groups. While giving hugs to radical extremists will not cause them to give up the cause they are so passionate about, isolation and marginalization or the feeling or belief that one is isolated or marginalized gives rise to radicalist behaviours. Often the craving to belong in a group, and to blame others for the feeling of being marginalized inspired individuals to become extreme and join those who feel the same way, or advocate an ideology that justifies their hateful feelings. Often times these individuals are in a space where they feel the best way to be remembered is infamously, by going down as a hero to their respective community by doing an unspeakable act of murdering innocent people to bring clout to their cause.

How does the government or Criminal Code prevent that via policy? The truth is that this is a societal issue regarding inclusion. There will always be people who hate, promote darkness, and death, but if we work with social policy, to make sure that those who feel marginalized and isolated are integrated into “mainstream” society for lack of better word, you would not need to police the thoughts, minds, and ideologies of citizens. Again, there will always be people who hate, and that is inexcusable, those who kill should face the full force of the law, and those who encourage attacks, and death should face the same penalties. However, regarding the teenagers who are inspired to go overseas and fight for a foreign terrorist entity, or the man who decided to get in a van and run over people in Toronto, these individuals feel that the world hates them for one reason or another. If we work with those who are identifiably from vulnerable demographics, marginalized, and isolated individuals, if we not only encourage governmental policy, but progressive social policy that stresses inclusion and compassion we can prevent the marginalization that inspires hate and terror.

The ideologies of hate cannot only be combated with strict law. You cannot deter people who glorify death with punishments of the legal system. Deterring only works for individuals who feel remorse, or who ultimately feel guilt. Combating certain aspects of terror must be done via the Criminal Code, but preventing the lone wolf style attacks requires more than just strict criminal policy, it requires social and political policy that prevents the further marginalization of isolated individuals.

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Dr. James Gacek has been with Robson Crim from the get go, first as a doctoral student of law at the University of Edinburgh Law School, one of the world's foremost research institutions, and now, as a Faculty Member at the University of Regina in Justice Studies. Dr. Gacek has emerged as one of Canada's brightest and most promising scholars in corrections & carcerality, critical security studies, judicial reasoning, green criminology and media & popular culture. We are delighted to welcome him to the team of editors at Robson Crim. His appointment will add an extra layer of expertise in the running of the Criminal Law Edition of the Manitoba Law Journal and of our blog content.

We continue to bring strong content to Robsoncrim.com and the journaland we know that Dr. Gacek will further strengthen our goal to be an interdisciplinary home to criminological, and sociol-legal content, in addition to our criminal law core. With the addition of Dr. Gacek our editorship are residents of British Columbia, Alberta, Saskatchewan and Ontario, and contributors span the nation and indeed the world. Welcome aboard, Dr. Gacek!

Dr. James Gacek's Biography

Dr. James Gacek is an Assistant Professor at the Department of Justice Studies at the University of Regina. With Professor Rose Ricciardelli, he recently completed a post-doctoral fellowship through the Department of Sociology, Memorial University of Newfoundland, where he engaged in a national longitudinal study with Correctional Services Canada. He recently completed his doctoral studies at Edinburgh Law School, University of Edinburgh, and hisdoctoral thesis focuses upon electronic monitoring in contemporary Scotland, a measure that is wholly provided by one private contractor (G4S Scotland). James’s work concerns the experience of delivering and receiving this form of supervision, and the texture of the new form of carcerality that it creates (Gacek, 2019; forthcoming; Sparks and Gacek, 2019; Gacek and Sparks, forthcoming). Arguably, this is precisely an example of Malcolm Feeley’s (1991, 2014) new techniques and modalities of punishment. So for James the question of what forms of penal subjectivity (and subjection) are brought into play through a contractual relationship between state authorities and private providers is a central one.

He has lectured in criminology and criminal justice at the University of Manitoba and the University of Winnipeg. He continues to publish in areas of incarceration, genocidal carcerality, critical issues in media, justice, and security studies, the exploitation of human-animal relations, and the broader politics of judicial reasoning. With Richard Jochelson, he has recently co-authored Criminal Law and Precrime: Legal Studies in Canadian Punishment and Surveillance in Anticipation of Criminal Guilt (2018, Routledge) as well as co-edited the forthcoming anthology Sexual Regulation and the Law: A Canadian Perspective (Demeter Press, 2019).

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Now running at the University of Winnipeg:

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A prominent tension in democratic societies, including Canada, is the competing interests between police investigative powers and the freedom of the press. In the 2018 Supreme Court of Canada case R v Vice Media Inc., the Court’s ruling demonstrates how the tension can be balanced.

An explanation of the case followed by a review of the analysis demonstrates the current framework for balancing investigative powers of police and the freedom of the press. Moreover, the majorities decision outlines an edited framework of analysis and the minorities decision suggests that the majorities updated analysis may be disregarded in similar future cases reaching the Supreme Court of Canada.

Outline of the Case

In May 2014, Vice Media Inc. journalist Ben Makuch wrote three articles about suspected Canadian ISIS member Farah Mohamed Shirdon. The stories were based on conversations between Mr. Makuch and Mr. Shirdon over a messenger app. The app does not retain conversational history. The only record of the messages is on screen captures that were in the possession of Vice Media Inc.

In February 2015, the RCMP applied to an authorizing judge for a production order to obtain the screen captures. The RCMP did not notify Vice Media Inc. as they did not want the media group to destroy the screen captures. An application for a production order made by one party to a judge in the absence of the other party is known as ex parte production order under s. 487.014 of the Criminal Code. The authorizing judge from Ontario Court of Justice approved the RCMP’s application as Mr. Shirdon was under investigation for multiple terrorist related offences.

Vice Media Inc. brought an action against the order, calling it an “overboard fishing expedition”. The Crown defended the ex parte production order stating that the demands of a terrorist investigation oughtweigh Vice Media Inc.’s rights to freedom of the press. After losing the action at trial and on appeal, Vice Media Inc. appealed to the Supreme Court of Canada. Vice Media Inc. further argued that the police should not be able to obtain a production order ex parte unless their special expression rights are properly considered by the court and if the investigation is legitimately substantiated.

In similar cases, media outlets are often concerned with maintaining the privacy of their sources to avoid a “chilling effect”. Yet, in the present case, the majority and minority agreed that a chilling effect was irrelevant as Mr. Shirdon was not keeping his identity private.

How the Supreme Court Balances the Tension

The five-judge majority decision was written by Justice Moldaver. The judgment acknowledges that the existing framework governing applications for police search warrants is the Lessard framework. The framework was a result of a 1991 case involving the CBC, where the court outlined nine factors to consider. The factors consider relevant statutes, discretion, privacy of the media, and the reasonableness of conduct.

However, Justice Moldaver states that the majority has reorganized the Lessard factors into a four-part analysis for simplification. The four steps are notice, statutory preconditions, balancing, and conditions. Notice refers to the consideration of whether it is appropriate to notify media outlets in the circumstances. Statutory preconditions are the consideration of relevant statutory requirements. Balancing is the most expansive step and includes considerations such as potential for chilling effects, the scope of materials sought, the likely probative value of materials, whether police have exhausted alternatives to obtain materials, and the role of media in a democratic society. Conditions refers to the consideration of whether conditions may be applied to the order to minimize unduly impeding on media.

The majority found that the approval from the authorizing judge from Ontario Court of Justice was consistent with the four-part analysis. The RCMP had a legitimate concern that the screen captures may be compromised if Vice Media Inc. was given notice. The statutory preconditions were met. The importance of the terrorist investigation was found to outweigh the inconvenience to Vice Media Inc. in the balancing step. Finally, the authorizing judge was found to be acting reasonably within their discretion in not applying conditions.

It is important to note that the majority also rejected Vice Media Inc.’s contention that the RCMPs investigation of Mr. Shirdon was insufficiently substantiated to move forward with requesting a production order of the screen captures. Justice Moldaver clarified that police investigations do not have to reach a particular stage in order to be granted a production order as a case can easily turn on even a small amount of evidence.

In summary of the majorities findings, the Lessard framework was edited to simplify the balancing process between interests of police investigative powers and freedom of the press. The majority dismissed Vice Media Inc.’s appeal.

Minority Decision

The minority came to the same conclusion as the majority yet stated that an alternative analysis should be used. On behalf of four judges, Justice Abella wrote the minority judgment.

The minority states that s. 2(b) of the Charter be explicitly acknowledged in the analysis regarding the freedom of the press. Section 2(b) of the Charter includes the right to expression and specifically “freedom of the press and other media of communication”.

Justice Abella writes that freedom of the press includes “the right to transmit news and other information, as well as gather information without undue governmental interference”. Therefore, the minority states that the majorities analysis is incomplete as it fails to uphold freedom of the press as enjoying distinct and independent constitutional protection when balancing the interests of investigative police powers and the media.

Overall, the majority and minority agree that in the present case, balancing police investigative powers with freedom of the press upholds the RCMP’s ex parte production order. Furthermore, the majority has simplified the analysis used to balance competing demands. Yet, the four-judge minority is generally made up of newer justices to the Supreme Court, suggesting that it may only be a relatively brief period of time before the analysis is once again changed.

It has been a while since we added collaborators to the Robson Crim collective. What does a collaborator do, you might ask? A collaborator contributes to our research network in multiple ways - they enhance our international & national interconnections; they bridge divides between disciplines; they may contribute blogs or encourage their students or peers to contribute blogs; they may contribute to our scholarly conferences or writings; and they form an essential part of our peer review network for the Criminal Law Edition of the Manitoba Law Journal.

It is our distinct pleasure to add an interdisciplinary dimension to our team by welcoming Dr. Hygiea Casiano to our collective. Dr. Casiano is the Associate Medical Director for Adult Forensic Services and an Assistant Professor of Psychiatry at the University of Manitoba. She completed her residency in Psychiatry at the University of Manitoba in 2009.

She has sub-specialty certification in both Child and Adolescent Psychiatry as well as Forensic Psychiatry through the Royal College of Physicians and Surgeons of Canada. Dr. Casiano is a past recipient of the Canadian Academy of Psychiatry and the Law (CAPL) Fellowship as well as the Rappaport Fellowship, provided by the American Academy of Psychiatry and the Law (AAPL). Her academic interests have included research on Criminal Responsibility and Fitness to Stand Trial issues, the impact of media on youth, and self-harm in detained youth. She is eager to collaborate with others on this blog, and welcomes emails of interest regarding further research opportunities.

While the representation of offenders is typically skewed to younger inmates, there is a significant proportion of elderly offenders currently being supervised within both the provincial and federal correctional system. The proportion of aging offenders in custody has skyrocketed over the last few decades, “making middle-aged and elderly offenders, one of the fastest-growing demographics” in prison. [1] The phenomenon known as the “grey wave” [2] was first identified in 1999, which consists of "older" inmates who are 50 years of age and older.”[3] In the late 1999’s, the Correctional Services of Canada (CSC) reported that aging offenders in federal institutions was at an all time high, consisting of 15% of the prisoner population.”[4] Since that time, the number has risen substantially and today the proportion of aging offenders is estimated to be “one-quarter, or 25% of the prison population; a growth rate of 77%.”[5] The “grey wave” does not seem to be abating. “Projections based on population modeling suggest that in the next five years, the greatest growth is expected for non-Aboriginal men aged 50 to 64.”[6]

What is Driving this Trend?

Howard Sapers, former Federal Correctional Investigator of Canada, believes that “significant shifts in sentencing reforms”[7] is a contributing factor increasing the proportion of aging offenders in prison. In addition, tough on crime policies and legislative reforms have also been contributing to the “grey wave” phenomenon. Due to governments reforms and western ideals, prisoners are “serving longer sentences and receiving significantly fewer opportunities for parole as a result of mandatory minimum penalties.” [8] In addition, the Correctional Investigator of Canada has also suggested that the “tightening of parole eligibility criteria and expansion of indeterminate sentencing designations” has also been a main contributor to the “grey wave.” [9] On one hand, the Office of the Correctional Investigator reports that “older offenders are more likely than younger offenders to have been convicted of more serious violent offences.”[10] There is a public interest in keeping violent offenders in prison longer. [11] On the flipside, it is also well documented that in most cases, aging offenders “present a lower risk to the community” due to their age. [12]

A Cause for Concern

The needs of aging offenders are very different from their younger inmate counterparts. The importance of understanding these unique needs and distinct barriers should be a high priority for both federal and provincial correctional directives across the country. The Correctional Investigator of Canada explains that, “health is generally poorer behind bars.” [13] The Correctional Services of Canada explains that in mainstream society, “older” is about 60 or 65-years-old but this is not the case for prison populations.” [14]

Ivan Zinger, the Correctional Investigator of Canada explains that due to lifestyle differences, “you can basically add a factor of 10 years on chronological age.” [15] The reasons for such a staggering difference “may be exacerbated by substance abuse, poor diet and an unhealthy lifestyle which are often characteristics of offenders.” [16]

The reality is that many older offenders will require “treatment of chronic diseases and illnesses associated with aging including cancer, emphysema, dementia, diabetes, cardiovascular disease” and palliative cancer. [17] In addition to treatment, many aging offenders require adaptive equipment and healthcare providers to accommodate their aging needs.

A Human Rights Issue

It seems that the “grey wave” is not only an issue plaguing Canadians. Campaigners around the globe “have urged that the rise in elderly people detained in prison is causing issues for a prison system totally unsuited to meeting their basic needs.” [18] In addition, the systemic issues plaguing aging offenders have caught the eye of some heavy players in the human rights community. In fact, in 2018 both the Canadian Human Rights Commission and the Office of the Correctional Investigator launched a joint investigation into the systemic discrimination of aging and elderly offenders in both federal and community corrections. Today in our Canadian prison system, the volume of offenders with significant medical issues has reached a point where “prisons are inaccessible and ill-equipped to manage their health care needs.”

Whats the Solution?

The research indicates that older offenders in the correctional system “experience more chronic health conditions than younger offenders.” [19] Given the current projections regarding the aging offender population, there appears to be a need to develop a long-term initiative to appropriately deal with aging offenders in prison and their eventual release back in to the community. Developing innovative solutions to meet the unique needs of aging offenders must be a top priority for both provincial and federal correctional institutions.

Ivan Zinger explains that penitentiaries should not become hospitals, “especially when it’s the most expensive age cohort to incarcerate while posing the least risk to public safety.” [20] One long-term initiative could be increasing parole reviews for aging offenders. Releasing offenders to Community Correctional Centres may also pose a problem because typically these facilities are not well equipped to accommodate the unique medical needs of aging offenders.

One costly idea is to start “retrofitting institutions with special assistive devices and equipment to meet everyday housing, ambulatory, toileting, bathing and feeding needs of an aging offender population.” [21] The costs associated with construction may not be a practical endeavour for prisons and Community Correctional Services. In addition, the current building structures in prisons and at Community Correctional Centres may not allow for construction projects to accommodate adaptive equipment. A more cost-effective solution maybe to contract with agencies or Community-Based Residential Facilities to meet the needs of aging offenders.

With this volume of offenders with significant medical issues, this should provoke the need for Correctional Services of Canada to explore creative solutions for geriatric initiatives. If policy makers and correctional institutions do not take steps to deal with the complex needs of aging offenders, it could be just a matter of time before the Courts impose their own solutions to insure the basic needs of aging offenders are met.

References

[1] May Bulman, “Why has the Proportion of Elder Prisoners Risen so Drastically.” (29 November 2017) online: Independent <https://www.independent.co.uk/news/uk/home-news/elderly-prisoners-jailed-over-50-age-numbers-increase-2002-figures-a8082921.html>.

[2] Zi-Ann Lum, “Grey Wave hitting Canadian Prison, Ombudsman Warn.” (1 November 2011) online: Vancouver Observer <https://www.vancouverobserver.com/world/canada/2011/11/01/grey-wave-hitting-canadian-prisons-ombudsman-warns>.

[3] Dr. Armstrong-Esther, “Older Offenders in the Correctional Service of Canada,” online at Correctional Service of Canada <https://www.csc-scc.gc.ca/text/pblct/forum/e062/062c_e.pdf>.

[4] Elizabeth Payne, “Federal Correctional Investigator: Needs of Aging Prisoners not being met” (22 June 2018) online: Ottawa Citizen <https://ottawacitizen.com/news/local-news/federal-correctional-investigator-needs-of-aging-prisoners-not-being-met>.

[5] Ibid.

[6] Beaudette & Stewart, “Older Offenders in the Custody of the Correctional Service of Canada” (2014) <http://www.csc-scc.gc.ca/research/005008-rs14-21-eng.shtml>.

[7] “Canada’s Aging Prison Population – Do we Care?” online: International Federation of Aging <https://www.ifa-fiv.org/canadas-ageing-prison-population-do-we-care/>.

[8] Ibid.

[9] Ibid.

[10] “Forum on Corrections Research,” online: Correctional Service Canada <http://www.csc-scc.gc.ca/research/forum/e062/e062c-eng.shtml>.

[11] Supra at note 3.

[12] Ibid.

[13] Lauren Krugel, “Aging Inmates: Correctional Service of Canada has Strategy in the Works,” (26 December 2017) online: The Canadian Press <https://www.thespec.com/news-story/8023888-aging-inmates-correctional-service-of-canada-has-strategy-in-the-works/>.

[14] Supra at note 3.

[15] Supra at note 13.

[16] Supra at note 3.

[17] Summary of Issue and Challenges Facing Older and Aging Offenders in Federal Custody, Office of the Correctional Investigator <http://www.oci-bec.gc.ca/cnt/comm/presentations/presentationsar-ra0911info-eng.aspx?texthighlight=aging+offenders>.

[18] Supra note 1.

[19] Older Offender in the Custody of the Correctional Service of Canada (August 2014) online: Correctional Service Canada <http://www.csc-scc.gc.ca/research/005008-rs14-21-eng.shtml>.

[20] Gemma Karstens-Smith, “Canada’s Aging Prison Population calls for Strategy Overhaul, Advocates Say” (25 January 2017) online: The Canadian Press <https://www.thestar.com/news/canada/2017/01/25/canadas-aging-prison-population-calls-for-strategy-overhaul-advocates-say.html>.

[21] Supra note 17.

Can voluntary consumption of alcohol or other drugs absolve an accused person of a criminal conviction for a general intent offence? Canadian courts have ruled on the issue and come to different conclusions. The Supreme Court of Canada has yet to provide a clear ruling on the matter.

The tension in the issue is between Canadians protection from impaired offenders (such as impaired drivers and sex offenders) and an accused’s moral responsibility for an act committed “involuntarily”. The opposing demands of justice are rooted in s. 33.1 of the Canadian Criminal Code and ss. 7 and 11(d) of the Charter. The consensus is that a s. 1 Charter analysis is required to balance the competing demands. Another possibility worth considering is whether the actus reus and mens rea may be flexible enough to uphold s. 33.1.

In the 1994 case of R v Daviault, the accused, an alcoholic, was presumed to have consumed seven or eight beers during the day and the majority of a 40-ounce bottle of brandy later the same day. That night, the accused allegedly sexually assaulted a partially paralyzed elderly woman whom he knew through his wife. The Supreme Court of Canada allowed the appeal from the accused and directed a new trial. The majority noted that when the accused is intoxicated to a state like automatism, the mental element required may not be met as required by sections 7 and 11(d) of the Charter.

The Canadian Parliament responded in February 1995, by introducing Bill C-72. The bill amended the Criminal Code by adding section 33.1. The section states that self-induced intoxication is not a full defence that an accused lacked the general intent or voluntariness required to commit the offence which threatens or interferes with the bodily integrity of another person.

Section 7 of the Charter says “[e]veryone 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”. Those contending section 33.1 is unconstitutional argue that the voluntary element or mens rea component would be contrary to their “right to life liberty, and security of the person”.

Similarly, section 33.1 is criticized as incompatible with section 11(d) of the Charter. The sections states “[a]ny person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. More specifically, section 33.1 has been described to allow an accused to be found guilty without all the essential elements being proven.

In the case of Duncan 2005, the Ontario Court of Justice stated that section 33.1 is not justified as it infringes on section 7 and 11(d) of the Charter as per the aforementioned arguments. In addition, the court notes that section 1 of the Charter is not sufficient to save the Criminal Code provision in question. Section 1 states that rights and freedoms are subject to limits demonstrably justified in a free and democratic society. On the other hand, the British Columbia Supreme Court has found that s. 33.1 of the Criminal Code is saved by s. 1 of the Charter from ss. 7 and 11(d).

Based on inconsistencies between courts, a ruling from the Supreme Court of Canada is overdue. When the Supreme Court is faced with a case appropriately challenging the constitutionality of s. 33.1, the question may simply be whether s. 1 of the Charter overrides s. 7 and 11(d). Alternatively, could it be possible that the actus reus and mens rea are flexible enough to allow s. 33.1 of the Criminal Code to remain constitutional?

One may logically conclude that someone who willingly consumes alcohol or other drugs may be found to willingly put themselves in a position to potentially act in an automatic state. Therefore, holding the person responsible for their actions while in an automatic state seems reasonable. An accused’s responsibility for a general intent offence is not necessarily contrary to s. 7 or 11 as the accused’s liberty to take a risk is being recognized. A focus on an accused’s lack of liberty while in an automatic state does not appear to consider the circumstances fully.

The case of Fagan v Metropolitan Police Commissioner is a classic example of the flexibility of the actus reas and mens rea. In the case, a police officer asked Mr. Fagan to move his car. Mr. Fagan reversed his car and accidentally rolled onto the officer’s foot. The officer yelled, and Mr. Fagan cursed at the officer and refused to move. The court had little trouble finding Mr. Fagan guilty. The court clearly stated that the act was not an omission (failure to move), but rather an ongoing act. The mens rea component was determined to occur when Mr. Fagan had the intent for the car to be where it already was.

In a similar way, a court may reasonably find that the voluntariness component of the actus reus began when the accused willingly consumed alcohol or other drugs and continued when an accused was involved in criminal conduct “automatically”. Similarly, general intent could be reasonably identified when an accused chooses to take the risk of entering an uncontrolled state that may result in illegal conduct.

In summary, the Supreme Court of Canada has yet to clarify the constitutionality of s. 32 of the Criminal Code. The exercise will likely lead to a s. 1 Charter analysis. However, it will be interesting to see whether the court considers the flexibility of the actus reus and mens rea as reconciling the Charter and Criminal Code.

In the recent case of R v Boudreault, the Supreme Court of Canada took a step in the right direction for the rehabilitation of disadvantaged offenders. Prior to this decision, section 737 of the Criminal Code stated that anyone found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act was required to pay a mandatory victim surcharge to the state, no matter the seriousness of the offence. The amount of this fee was 30% of the fine imposed or, where there was no fine, $100 or $200 per charge depending on whether it was a summary conviction or an indictable offence. The provision was found to infringe section 12 of the Charter, which states that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. The court went on to find that it was not justified or saved under section 1 of the Charter.

While these fees may seem inconsequential to some, to disadvantaged and marginalized offenders their payment may simply be impossible. In examining both the individuals involved in the case and the “hypothetical man”, the Supreme Court took note of the similarities between them. These similarities include living in poverty, struggling with addiction and some suffering from mental illness. Their inability to pay the victim surcharge can have the ultimate effect of creating an indeterminate criminal sanction. The court noted that the surcharge only served to further stigmatize and public shame the disadvantaged offenders. In the words of the court, “Put simply in our free and democratic society, it is cruel and it is unusual.”

Criminal offenders in Canada often face substantial barriers to their re-integration into society. This is especially true of offenders struggling with the problems outlined above. Criminal offenders commonly experience the criminal justice system as a revolving door, characterized by a repeated cycle of exiting and re-entering the system. Correctional Services Canada estimates that approximately 80% of women prisoners and 90% of male prisoners have a prior conviction.1 This statistic, together with the fact that 70% of the individuals who come in contact with the criminal justice system in Canada meet the criteria for mental illness or substance abuse, demonstrates that change is long overdue.2

The court in Boudreault correctly noted that, although programs promoting reintegration exist, those struggling with mental illness, addiction or poverty often have difficulty accessing or keeping up with such programs. Without addressing the underlying conditions and root causes of criminal behaviour, the revolving door will continue to turn. Not only do programs need to change but so too does the criminal justice system at large. Other mandatory minimum forms of punishment must also be eliminated. Mandatory minimums remove from judges the ability to exercise discretion and examine each offender’s circumstances and life experiences in fashioning the appropriate punishment. Greater judicial discretion would also involve moving away from a simple fixation on guilt or innocence toward an approach that focuses on compassion and understanding for both the victim and the offender. While it is easy to say that criminal offenders are the authors of their own misfortune and responsible for the consequences that follow, it is important to take a deeper look at the complex social, psychological and economic factors at play.

While the court was correct in noting that programs that assist victims of crime serve a valid public purpose, this purpose must be balanced against the need to support the important goals of rehabilitation and reintegration. This can only be achieved if offenders have the resources necessary to escape the revolving door and truly reintegrate into society. In the absence of such resources, offenders will continue to serve what amount to indeterminate sentences. In striking down section 737 of the Criminal Code, the Supreme Court clearly signalled that such cruel and unusual punishment ought not be tolerated in a just and civilized society.

Although the decision in Boudreault represents significant progress, the court arguably missed an opportunity to provide additional guidance on how true rehabilitation and reintegration can be realized. As overall awareness of mental illness, substance abuse and poverty increase, the legal system needs to evolve accordingly. Hopefully, further changes benefiting all citizens - including criminal offenders who have already paid for their crimes - will follow shortly.

Footnotes

1 Jamil Malakieh, “Adult and youth correctional statistics in Canada, 2016/2017” (last modified 29 June 2018), online: Statistics Canada <https://www150.statcan.gc.ca/n1/pub/85-002-x/2018001/article/54972-eng.htm> [https://perma.cc/3KQ6-LJUC].

2 “What we heard - Transforming Canada’s criminal justice system” (last modified 27 March 2018), online: Canada Department of Justice <https://www.justice.gc.ca/eng/rp-pr/other-autre/tcjs-tsjp/p1.html> [https://perma.cc/VCG8-Z7XE].

See the full pdf here: https://tinyurl.com/y25wcvyu

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Bitcoin. Cryptocurrency. Blockchain. The world of virtual currencies seems to be exploding all around us. This rapid expansion of new currencies has created a lot of confusion and even fear surrounding virtual currencies. Possibly the most well-known cryptocurrency, Bitcoin has been shrouded in mystery ever since its introduction. Satoshi Nakamoto the so-called creator of Bitcoin announced the “Peer-to-Peer Electronic Cash System” on October 31, 2009, however, Satoshi Nakamoto, a presumed pseudonym, has never actually been identified.

The concept of anonymity is one of the reasons that there have been security concerns regarding the trading of cryptocurrency. In a nutshell, virtual currencies have created a decentralized cash system that completely cuts out the middleperson, where currency can be sent online, directly, from one user to another.

Traditionally, these “middlepersons” have been banks, who the public have trusted to ensure that deposits and withdrawals are accounted for. With cryptocurrency, instead of having a central entity like a bank that would manage in-going and outgoing expenditures, peer-to-peer networks of computers act as managers of these expenditures. In other words, say X (the sender) sends cryptocurrency to Y (the receiver), this cryptocurrency would be sent from your computer and then blasted out to the entire network. Y, the receiver of the currency, would have a key or code to access the currency, but before the transaction can be completed a verification process needs to take place. This is so that transactions cannot be duplicated. This is done by what industry members call “mining” done by “miners.” What these “miners” do is they check the transactions to make sure it is not a counterfeit or duplicate transaction. And why would they do this? Mining takes a ton of computer power, so these independent “miners” invest some of their own-person computer power and in return they receive cryptocurrency, in this example, Bitcoin. This is the only way valid Bitcoins can be created.

Once you send money via a cryptocurrency there is no going back. The transaction is absolutely permanent and unalterable as it added to the blockchain. It is also generally anonymous as there is not central system and transactions are not actually connected with a personal identity.

There are benefits to cryptocurrency. Supporters argue that it cuts out 3rd parties like banks that have for too long manipulated the financial arena and they also allow for global transactions in areas of the world where access to banks or small loans are limited. They also remove the necessity of having hard currency in bills in cash.

However, there is no denying there is a dark side. Enter the dark web. The dark web is part of the internet that most of us probably have never visited or would even know how to get there because you cannot access it through Google. In fact, you need special software to access it and the information on it. What it does do though, is that it allows you to surf the web while encrypting your identification as you go so your IP address is unreadable. One of the most popular software programs used to access the dark web is called TOR which was actually created by the US government. And although it might sound like a shady spot on the internet, not all activities on the dark web are nefarious. TOR is still supported by the US government and plays a role in state security as well as allowing journalists to connect secretly with sources and has even been used by dissidents of authoritarian regimes to share information.

But what happens when these two worlds collide? In February 2011, a new website appeared on the dark web. It was called Silk Road, named after the ancient trade network that connected East Asia to Southern Europe. This website used the encryption power of the dark web combined with the anonymity of Bitcoin to sell drugs over the internet. It was like a black-market Amazon service where users to could buy and sell drugs anonymously. Once you placed an order on Silk Road, it was transmitted through the mail. The site even allowed you to place reviews on sellers and products. Shortly after it’s launch, Gawker.com published this article regarding Silk Road exposing it to the general public and politicians. Most notably New York Senator Chuck Schumer who called for a “crackdown” on Bitcoin, the complete shutdown down of Silk Road, and the prosecution of those behind it.

For nearly two years the owner of the site, going by the pseudonym “Dread Pirate Roberts” named after a character in the Princess Bride operated the site alongside a mysterious figure called Variety Jones. The owners of the site made their profits by attaching a “percentage” to the sales, which it seems buyers and sellers were willing to pay for in order to enjoy the access and security of this system. As the site grew, so did law enforcement's interest in identifying the owners. Undercover surveillance of the site began, with law enforcement engaging with the paid moderators of the site in an attempt to identify them and then to overtake their accounts to secure access to the Dread Pirate Roberts.

During this time, the site itself was also becoming vulnerable to illegal hacker attacks. These attacks would take down the site and require the Dread Pirate Roberts to pay millions in bribes to regain control of the site. It was after numerous shutdowns of the site that resulted in the Dread Pirate Roberts to initiate a murder-for-hire against another Silk Road user for blackmail. However, his murder-for-hire requests and payments were going right to an undercover police officer. If you want to hear the in-depth story of the investigation, check out this podcast: https://casefilepodcast.com/case-76-silk-road-part-1/.

On October 1, 2013, after a long-term undercover sting operation, a fake murder-for-hire, and the arrest of two corrupt federal agents, 26-year-old Ross Ulbricht was apprehended in a San Francisco library. He was arrested, charged and convicted and is currently service a double life sentence plus 40 years. According to the indictment, Silk Road had over $1.6 billion in sales from 2011 - 2013.

His family describe Ross as libertarian who created Silk Road so that users had access to a site which protected their privacy and allowed them to access goods that were traditionally illegal. He believed at the time that people should have the right to buy and sell whatever they wanted, so long as they were not hurting anyone else. He had always remained staunchly against hosting items such as stolen items, child pornography, and generally anything used to harm or defraud others.

Supporters of Ross have also made arguments that Silk Road actually reduced harm associated with the drug trade. They argued that it took users off the streets and reduced the risks of buying contaminated drugs as the review process kept vendors accountable. There have also been arguments from Ross’s family that he was not the one behind Silk Road. He graduated from University of Texas with a degree in physics, and then got his master’s from Pennsylvania State University. Neither of these areas of study fulfill the requirements for what would be needed to host a site as sophisticated as Silk Road. His family also argues that the sentence he received was not proportionate to his actions and to what others have received. Ross is still currently serving his time and his family is advocating for his release, so I guess the only question that remains is who is now running the still active Silk Road?

References

https://gawker.com/meet-silk-roads-alleged-drug-lord-a-29-year-old-calif-1440275594

https://www.wired.com/2015/04/silk-road-boss-first-murder-attempt-mentors-idea/

https://freeross.org/what-was-silk-road/

https://freeross.org/wp-content/uploads/2018/01/Ex2_StudyOfUserExperiences_Bingham.pdf

https://blockgeeks.com/guides/what-is-cryptocurrency/

https://www.youtube.com/watch?v=fUjSVrh9UN4

https://gawker.com/the-underground-website-where-you-can-buy-any-drug-imag-30818160

https://casefilepodcast.com/case-76-silk-road-part-1/

Students in my undergraduate law and legal studies criminal law class were invited this term to author blog posts. Here is a compilation of excerpts from their best work this term.

As an aside, thank you, Carleton students, for many great years! Your energy, intelligence, and enthusiasm are an inspiration. As I move back into the legal profession and away from my full time faculty role, I look forward to watching you rise as colleagues and professionals in many fields relating to criminal law.

Student Essay Excerpts:

"All murders committed during a forcible confinement be treated as first-degree murder pursuant to section.231(5)(e) of the Criminal Code. This provision thus covers a wide range of scenarios in which offenders may have varying degrees of moral blameworthiness,51 and yet shoehorns them all into one severe sentence. This same reasoning toppled s.95(1) to a s.12 Charter violation in R v. Nur, [2015] 1 SCR 773, and as such, so too must this provision fail."

-Delany Gilmore

"Anti-stalking legislation should not require subjective fear on the part of the victim for culpability of the accused. There is no consensus on an objective standard of fear within the psychology community which is arguably the community best equipped to define fear, identify the presence of fear and clarify if the emotional response of fear is predictable and could be successfully subjected to an objective test. Rather it seems as though the bench has sought to create a standard for which there is no objective scientific support and as a result, base findings of fault on actus reus which cannot reasonably or objectively be measured. "

-Jennifer Draper

"The infanticide provision should be reformed. Fear or anxiety over social disapproval, or financial stress, is not an excuse for murder, it is a reflection of the persistent continuation of the patronization of women. Stereotypes about women still exist and women’s bodies are unjustly over policed. By narrowing the scope of the provision to focus on women that suffer from postpartum psychosis or another medically recognized severe dissociation from reality, we can then emphasize how our feminist efforts to create avenues to help women in need, are there for all women to utilize and benefit from. In essence, I believe that a discussion on the intersectional issues of aiding women in crisis must be had. We must consider that through robust social programming, we can work to mitigate the stress of motherhood and protect both mothers and their children. "

- Danica Nardi-Lamadeleine

"When an individual with a mental illness commits a crime but is not found NCRMD due to the severity of their illness, they are obligated to go through the criminal justice system. However, due to the increasing number of individuals with less serious illnesses such as depression, anxiety, double personality disorder, the psychiatric facilities are exceeding their capacity in the penitentiary system. Additionally, these people often encounter segregation which aggravates the situation and their mental state. Therefore, they are not receiving the adequate care to be reintegrated into society at the end of their sentence, which results in the cycle of recidivism."

- Dagny Connolly

"Scientific research on mental disturbance related to childbirth widely disproves “that all women who murder their infants are suffering from serious mental disorder.”15 The image of a vulnerable mother frames the accused as a “victim” deserving of increased leniency over other criminals. Infanticide acts as a partial defence to murder, even in circumstances where the mens rea for murder was established. Current legislation needs reform to reflect the value a human life holds; infanticide law should not allow mothers to get away with murder."

-Olivia Kabelin

"In light of contemporary scientific knowledge on the affects of postpartum depression in both females and males, that the determination of fault under the law of homicide, specifically infanticide, as described in section 233 of the Criminal Code, be reformed.1 This reform is to include both men and women to the current gender-specific provision, an operationalized definition of a mental disturbance that is defined as a mens rea element, and a requisite threshold that is casually connected to both the birth and the killing."

-Taylor Geyer

"If R v Latimer, [2001] 1 SCR 3 was revisited today, new consideration should be given to cognitive distortions in light of what we now know about how, even if legally and practically, a person has options, a parent may have given up and may genuinely believe killing their child is the only option. The notion of necessity distorts the mind, and therefore the fault under the law of homicide should be reformed to incorporate understanding of this cognitive distortion."

-Fatma Alobeid

"Treating homicide of peace officers as first degree murder under Section 231 (4) of the Criminal Code of Canada creates bias and distrust within our society. Police officers are a very important aspect in society and their lives should be protected, however, the provision does not do this. It in turn states that lives of civilians are of less degree of importance than agents of the state."

-Tashera Joseph Mofford

"law enforcement members should not be protected by special laws because of their position in society. For these reasons, it is in Canadians’ best interest to change the determination of fault for first-degree murder."

-Brina Underwood

"In reality, the crime of infanticide is usually committed because of a variety of contextual factors, like maternal inadequacy, pre-existing mental illness, prior physical and sexual abuse, mercy killings, and substance abuse.11 These factors are common and may be experienced by anyone in a caretaking position. The image of the family unit is always changing, and Canadian law must change in response. The infanticide provision was created to give a less harsh sentence to new mothers,12 but I believe this must extend to anyone in a caretaking position that may experience the same contextual factors listed above that a biological new mother may face."

-Kelsey Drummond

"The Criminal Code has other provisions that are more effective in addressing a mother who murders her newborn baby. For example, s. 229 of the Criminal Code defines culpable homicide by using general terms.7 This provision does not specify the relationship between the victim and the offender, or the sex of the offender, so it can be more broadly applied to all individuals. This causes the purpose of the infanticide provision to be redundant since there are broader provisions and defences that already deal with a mother murdering her child."

-Taylor Bogle

"It is evident that reform is needed as infanticide is rooted in “unsound and outmoded notions of mental disturbance, reflects an anachronistic view of women, and is arbitrarily restrictive”.24 Justice is alleged to be blind however, women are being granted dispensation which ignores the experiences of nonbirth parents."

-Kayla Nardelli

"The mens rea of Canada’s infanticide law must be reformed as the current provision provides dangerous leniency, makes unfounded claims that lack modern medical evidence and is sexist in nature."

-Maisie Sturrock

"The blameworthiness that is proportionate to a conviction of murder requires a subjective knowledge of the likelihood of death. For this reason, the stigma applied to such a crime should not be applied in cases where death is accidental."

-Thomas Shaw

"Corporate wrongdoing resulting in death be dealt with under the first-degree murder provision irrespective of the planned and deliberate requirements and this crime should be considered an absolute liability offence to exclude the ‘due diligence’ defence."

-Calysta Chin

"I do not dispute the fact that the crime of killing a police officer is of utmost severity. However, I would argue that the current provision of said crime outlined in s. 231(4) of the Criminal Code of Canada30 is unjust and requires amendment. The rigidity of s. 231(4) and the disregard for the proof of subjective mens rea can cause offenders to be treated unjustly due to the lack of consideration for mitigating factor."

-Ajitha Nair

"The right to be treated equally and without discrimination should extend to the amount of value placed on individual lives. The enactment of this law implies that certain persons, such as peace officers, have higher value, and therefore any acts which result in the death of these persons are to be punished more severely. In a society wherein the primary duty of the government is to the citizens, it is unconstitutional that this law exists."

-Hannah Dever

" The CCC, S.231(2) declares, “Murder is first degree when it is planned and deliberate”.For murder to be planned and deliberate, the actus reus element must be accompanied by the mens rea or “guilty mind”. If both these elements are present when a murder has occurred, a charge of first degree murder should be actively enforced. When improving S.231(4) of the CCC, the determination of fault should be reformed so that mens rea is present at all times. This change will eliminate the present inconsistency between S.231(2) and S.231(4) of the CCC, where a first degree murder charge is resultant only if the homicide is planned and deliberate."

-Roshauna Sahadeo

"Under Section 235(1), all murder is punishable by a minimum of life imprisonment.24 The only distinction is made in Section 745(a) and (c) where first degree murder convictions carry a minimum of twenty-five years of parole ineligibility while second degree carry a ten year minimum.25 Rigid sentencing provisions make it difficult to impose fit sentences for crimes with varying facts."

-Andrew Hall

During the high-profile homicide case involving Tina Fontaine in 2014, the Winnipeg Police Service (“WPS”) engaged in a controversial investigative technique known as “Mr. Big”. This policing tactic was developed by the RCMP in the early 1990s and has been used across Canada on more than 350 occasions as of 2008. Mr. Big operations are used by law enforcement in situations where they have a strong belief that a suspect is responsible for committing a serious crime (usually murder) but do not have sufficient evidence to lay charges.

Mr. Big operations are implemented in a variety of ways, they all follow a common narrative. Undercover police officers approach the suspect and attempt to develop a relationship, and slowly begin working together. This stage can last several months. The suspect is then asked to engage in a number of seemingly illegal tasks, such as delivering suspicious packages or counting large sums of money.

Eventually the suspect is introduced to the idea that the undercover officers work for a criminal organization. The suspect is then required to meet the head of the ‘ficticious’ criminal organization, Mr. Big. In a job-interview setting, Mr. Big asks about the suspects criminal past and the specifically the crime under investigation by police. As the meeting goes on it becomes clear that confessing to the crime will allow the suspect to become a member of the criminal organization and have protection from the police.

Although unsuccessful, the WPS attempted to utilize this technique to catch Tina’s suspected killer, Raymond Cormier. Cormier was set up in an apartment where the undercover officers conducted surveillance and slowly befriended him. An officer, acting as “Mohammed”, a neighbor in Cormier’s apartment block hired Cormier for small jobs eluding to the fact that he worked for a man named “Mr. J”. Cormier says he was paid approximately two-thousand dollars for engaging in odd jobs, which required him to pick up luggage at the airport marked with a red ribbon and bring it to a specified location, clean up Mohammed’s apartment after he told him he assaulted his girlfriend, and travel to B.C. to engage in a “collection”. In B.C. “Mr. J” confronted Cormier about the murder of Tina Fontaine, where he denied committing the murder and immediately suspected that the police were involved. Cormier was later arrested and charged with second-degree murder but was never convicted.

Due to the nature of Mr. Big operations, one of the main concerns that arise are the reliability of the confessions they produce. In 2014, shortly before the Tina Fontaine homicide case, Mr. Big operations were scrutinized by the Supreme Court of Canada in a pair of decisions, R v Hart and R v Mack. The decision in Hart recognized the vulnerabilities of suspects to falsely confess to crimes under Mr. Big operations. In an attempt to address this issue, the Hart decision stated that confessions obtained during a Mr. Big operation are presumptively inadmissible unless the crown can establish: 1- On a balance of probabilities that the probative value of the confession outweighs its prejudicial effect; and 2- Whether the statements should be excluded on the basis of abuse of process. In Mack the court gave further clarification on how the framework established in Hart should be applied. It illustrated that the court still has the ability to utilize confessions obtained in a Mr. Big operation if they meet the criteria established in Hart. These decisions marked an important evolution of the law related to Mr. Big operations and will impact the decisions of cases for years to come.

Citations

R v Hart, 2014 SCC 52.

R v Mack, 2014 SCC 58.

“Undercover Operations” (5 January 2015), online: Royal Canadian Mounted Police <http://bc.rcmp-grc.gc.ca/ViewPage.action?siteNodeId=23&languageId=1&contentId=6941>.

As a society, we place enormous value on our section 8 Charter privacy right which protects us from unreasonable privacy infringements. Despite this, we are constantly surrounded by cameras nearly everywhere we go- from supermarkets, to schools, to the roads. Although we are a far cry from an Orwellian society where “Big Brother is always watching”, a line still exists that, when crossed (usually criminally), it’s left for the Court to determine whether our privacy right guaranteed under the Charter was infringed.

In the recent case of R v Jarvis, the accused, a teacher in London, Ontario, used a video pen to record his female students’ cleavage and chest areas without their knowledge or consent. Mr. Jarvis was charged with voyeurism under the relatively new s 162(1)(c) of the Criminal Code which reads:

162(1)

Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if…

(c) the observation or recording is done for a sexual purpose.

Since there was no question that Mr. Jarvis made videos of his students for sexual purposes, the main question before the Supreme Court was whether the students recorded by Mr. Jarvis were in circumstances that would give rise to a reasonable expectation of privacy.

In reviewing the facts of the case, the Court decided to take an expansive rather than narrow reading of s 162(1) because a narrow reading would undermine Parliament’s purpose to prevent sexual exploitation- particularly that of youth.

In their ruling, the Court raised several legal principles regarding privacy. First, in determining whether a person can reasonably expect privacy in a situation requires a contextual analysis. Secondly, privacy is not an all or nothing concept. Finally, they held that just because you know that you are observed, it doesn’t mean that you give up your privacy rights- something that’s especially pertinent in today’s society where cameras are virtually everywhere.

Writing for the majority, Justice Wagner of the Supreme Court held that “in determining whether a person who is observed or recorded was in circumstances that give rise to a reasonable expectation privacy is whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation at issue”.[1] To illustrate this, they gave the example of a woman in a washroom and a person in a public park. Whilst a woman in a public washroom should expect a high degree of privacy (i.e. no video recordings), a person lying on a blanket in a public park should expect a lesser degree of privacy. In their application of the test, the Court looked at contextual factors, apprised of s.8 Charter values, to determine whether the students recorded by Mr. Jarvis had a reasonable expectation of privacy including:

(1) Location where Mr. Jarvis made the recordings

(2) What he recorded

(3) Consent (or lack thereof) of the students recorded

(4) How Mr. Jarvis made the recordings

(5) Who and what Mr. Jarvis recorded

(6) Rules that regulated or prevented Mr. Jarvis from recording

(7) Relationship between Mr. Jarvis and those recorded

(8) The purpose of Mr Jarvis’ recording

(9) Personal attributes of the students recorded

The Court first looked at location and ruled that a school isn’t a public nor a private place, but rather a quasi-public place where entry is limited to certain people including teachers, students and other employees. While the Court found that students should have lowered expectations of privacy in areas like hallways where there are lots of students, they also found that there were school board rules governing recordings like those made by Mr. Jarvis- which should have given the students some expectation of privacy. Secondly, the Court found that the students didn’t consent to the recordings and were recorded using hidden camera technology. Finally, the sexual subject of the videos and the societal view that sexual body parts should be afforded high levels of privacy. Ultimately, these contextual factors (alongside other contextual factors) resulted in the Court ruling that Mr. Jarvis’ actions were indeed an infringement of the students’ reasonable expectation of privacy.

The Court’s definition of a “reasonable expectation of privacy” in R v Jarvis starkly contrasts cases like R v Lewhere I believe the Ontario Courts gave the phrase a “reasonable expectation of privacy” an arguably different meaning. The facts of Le are quite simple: a young man named Tom Le was in his friend’s backyard when several police officers entered the backyard on the premise that they wished to speak with the occupant of the house. Le had a bag with him that contained drugs, money and a weapon. The police didn’t like how Le handled his bag and questioned him about it… and Le made a run for it. Le was ultimately charged with ten criminal offences which were upheld both at the Ontario Superior Court of Justice and Ontario Court of Appeal.

In their ruling, the Court of Appealfound that the police were unlawfully on Le’s friend’s property. They then applied a similar test to Jarvis and looked at whether Le had a reasonable expectation of privacy in his friend’s backyard. Unlike Jarvis however, the Court ruled that Le had no reasonable expectation of privacy in the backyard because he didn’t control who came and went. If the same reasoning was applied to Jarvis, it’s likely that the students wouldn’t be found to have had a reasonable expectation of privacy because they didn’t control the comings and goings of people in the school. While it’s beyond dispute that the manner in which both Le and the students of Jarvis were observed was unlawful, I believe that the context is where the distinction between these two cases arises. Whilst Le was observed by police officers who were in the course of their duties and afforded a lower “reasonable expectation of privacy”, the students in Jarvis were afforded a higher “reasonable expectation of privacy” because the case involved alarming contextual factors including the sexual nature of the videos and the special bonds formed between a teacher and his students (which in no way should be sexual).

If anything is made clear from these two cases, it’s that in light of the criminal law, what constitutes a “reasonable expectation of privacy” is truly a sliding scale which is left to the Court to decide on a case-by-case basis.

Footnote

[1]R v Jarvis, 2019 SCC 10 at para 70, [Jarvis].

Sources

Legislation:

Criminal Code, RSC 1985, c C-46.

Jurisprudence:

R v Jarvis, 2019 SCC 10.

R v Le, 2018 ONCA 56.

I’ve only been in law school for a short time, but I’m already concerned with the direction that my education is taking. It is possible that this is because I’m still a first year, and that the opportunities for different types of learning will open up in future years. That being said, I have some issues with what I have been learning. Some may say I’m too cynical, some may say that I’m ungrateful for the incredible chance I’ve been given to better myself and further my education. They may be right. That does not change my fundamental feelings of alienation, frustration, and futility, and my desire for an education which encompasses all outlooks on our legal system.

The very first case that my class and I read was called Armory v Delamirie. For anyone unfamiliar, this is a short, simple case, from back in the late 18th century. In this case a poor young chimney sweep had brought a broach of sorts to a wealthy jeweler, notorious for underhanded dealings, to obtain an evaluation. Upon hearing the worth of the item, the boy demanded it back, and was presented the empty holder, with the jewel removed.

At trial, the judge awarded the young boy the highest award he could. This would seem to be an unremarkable choice for a first case to show to fresh law students, indeed it has a number of useful features for anyone new to the field. It is a case which is easy to understand. It can teach us about important principles of law, such as stare decisis and finders law. It can help us understand the overarching structure of the system in which we are entering.

What this case will not teach law students however, is how to think critically about the system in which we are about to be immersed. There can be no question in this case that justice was done. No question of whether or not the judge erred. The young innocent boy was given back the item which all would agree was rightfully his, and the greedy jeweler was made to suffer for his immoral transgressions.

This is a perfect example of the system working how we all would like to imagine that it does. This is not a system with which I am familiar. A system in which an impoverished child may upset the hierarchy of power and punish a wealthy businessman who has transgressed against him is wonderful, but I would assert that excluding the exception of Armorie v Delamirie, this is not a true evaluation of our current justice system or how it interacts with our society.

How many cases would it be possible to find in which the situation was reversed? I suspect that most property cases are that of someone with a lot of property protecting it against someone with less. The court system works to protect private property, backed up by the coercive force of police, prison sentences, and hefty fines. The goal of protecting private property is one that is inherently skewed.

Those in society who have property seek to protect it and use the justice system to maintain the status quo. It is not normally an impoverished child who is seeking to protect their property – normally this child has no property of any worth to protect! How many cases are there in which it is the one without any wealth or power who was forced by circumstance to transgress against the wealthy? Why are we not showed one of these cases as our introduction to the Canadian legal system? Is this not a more realistic picture of what goes on in the legal system? Is it not more common for the wealthier individual – the one with the finances to hire the better lawyer – to win the day and protect their property from those who would take it from them?

I suggest that to show fresh law students a case such as this would paint a more accurate picture of the profession and system into which we are about to enter, however it would miss the most beneficial aspect of the Armorie case. The most valuable aspect of this case is that it serves to reassure any new students who hear it. They are assured that the system is morally just. The system isn’t in place merely to hold up the status quo, it is there to do justice, and make sure that all is right in the world. No one hearing the case of Armorie v Delamirie for the first time would question the decision made, and the undeniable morality enforced by the decision. This is a case which stifles critical thinking. Instead of seeing areas of our system which could be improved, problems which need to be solved, we are presented with a shining jewel of optimism, justice, good judgement and morality, which is expected to be extrapolated to the system as a whole.

The whole justice system is not like Armorie v Delamirie. Sometimes in this system the bad guy wins. Often in this system, the rich guy wins. Instead of warning us about these dangers, and teaching us to think critically about cases where this may happen, we are shown the opposite. Instead of teaching us to engage with every case and think about it from different angles, we are encouraged to accept the morality of the judgements before us, the ones which we in future will argue before a court, and hold up as proper examples of justice being done. What about where justice has not been done?

No system can get it right all the time. I am not suggesting that the Canadian system is not a good one. I am not suggesting that we should overthrow the system completely. I merely think that law students should not be led down a path where questioning the status quo is discouraged. Questioning the status quo is what we should be doing every day, with every case, as representatives of a system which holds enormous power over the everyday lives of Canadians. We should not assume that every case is like that of Armorie v Delamire, we should not assume that justice will implicitly be done just because it was so in the cases that we have been shown. Injustices occur in this system, and if we cannot teach law students to seek them out and challenge them, then they will inevitably continue.

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