Supreme Court won’t hear immunity claim from former Quebec Lt.-Gov.

By The Canadian Press - Thursday, May 23, 2013 at 10:45 AM - 0 Comments

OTTAWA – The Supreme Court of Canada won’t hear an appeal from a former lieutenant-governor of Quebec who claimed royal immunity from criminal charges.

Lise Thibault, who held the provincial vice-regal post between 1997 and 2007, is charged with fraud and breach of trust in relation to hundreds of thousands of dollars in expense claims.

Lower courts have rejected her argument that as the Queen’s representative she is not subject to the criminal justice system on the principle that the Crown can do no wrong.

Thibault is to go on trial next April.

She also faces a civil suit brought by the province.

As usual, the Supreme Court gave no reasons for refusing to hear the case.

Supreme Court upholds acquittal of mom who left newborn baby in Walmart toilet

By The Canadian Press - Friday, May 17, 2013 at 4:46 PM - 0 Comments

OTTAWA – The Supreme Court of Canada has upheld the acquittal of a Saskatchewan woman who gave birth in a Walmart bathroom stall and left the newborn in a toilet.

In a 5-2 split decision, the court ruled in favour of April Halkett, who was found not guilty in June 2009 of abandoning the baby boy two years earlier in the store in Prince Albert, Sask.

Halkett testified at trial that she didn’t know she was pregnant and left the store because she thought the child was dead. A store manager later pulled the baby from the toilet and he survived.

“We’re done. It’s over and that is a relief for my client,” lawyer Pam Cuelenaere said after the decision was released Friday.

Continue…

Supreme Court upholds acquittal of mom who left newborn baby in Walmart toilet

By The Canadian Press - Friday, May 17, 2013 at 11:15 AM - 0 Comments

OTTAWA – The Supreme Court of Canada has upheld the acquittal of a Saskatchewan woman who gave birth in a Walmart bathroom stall and left the newborn in a toilet.

In a 5-2 split decision, the court ruled in favour of April Halkett, who was found not guilty in June 2009 of abandoning the baby boy two years earlier in the store in Prince Albert, Sask.

The Crown appealed the case to the Saskatchewan Court of Appeal and then the Supreme Court and both upheld the findings of the trial judge.

The trial judge said he believed Halkett’s testimony that she didn’t know she was pregnant and left the store because she thought the child was dead.

Halkett testified that she didn’t know she was expecting a baby because she tested negative three times on home pregnancy tests and she was still getting her period.

She told the court she thought the child was dead because of its blue pallor and the fact that it wasn’t moving. Continue…

Supreme Court to rule on case of mom who left newborn baby in Walmart toilet

By The Canadian Press - Friday, May 17, 2013 at 8:15 AM - 0 Comments

OTTAWA – A Saskatchewan woman who gave birth in a Walmart bathroom stall and left the newborn in a toilet will find out her fate this morning.

The Supreme Court of Canada is set to rule on the case of April Halkett.

Halkett was found not guilty in June 2009 of abandoning the baby boy two years earlier in the store in Prince Albert, Sask.

But the Crown disagreed with the verdict and took the case to the Saskatchewan Court of Appeal, which upheld the findings of a trial judge.

The judge said he believed Halkett’s testimony that she didn’t know she was pregnant and left the store because she thought the child was dead.
Continue…

Supreme Court to rule on case of mom who left newborn baby in Walmart toilet

By The Canadian Press - Friday, May 17, 2013 at 6:12 AM - 0 Comments

OTTAWA – A Saskatchewan woman who gave birth in a Walmart bathroom stall and left the newborn in a toilet will find out her fate this morning.

The Supreme Court of Canada is set to rule on the case of April Halkett.

Halkett was found not guilty in June 2009 of abandoning the baby boy two years earlier in the store in Prince Albert, Sask.

But the Crown disagreed with the verdict and took the case to the Saskatchewan Court of Appeal, which upheld the findings of a trial judge.

The judge said he believed Halkett’s testimony that she didn’t know she was pregnant and left the store because she thought the child was dead.

Lawyers for the Saskatchewan government argued before the province’s highest court that the mother had a duty to take reasonable steps to determine if her baby, who was later placed in foster care, was alive.

Continue…

Top court to hear appeal of couple who sued Air Canada over English-only service

By The Canadian Press - Thursday, May 2, 2013 at 10:16 AM - 0 Comments

OTTAWA – The Supreme Court of Canada has agreed to hear the appeal of a couple who sued Air Canada when they weren’t able to order a 7Up in French.

Michel and Lynda Thibodeau filed eight complaints with the official languages commissioner over the English-only services they say they received from Air Canada during trips taken between January and May, 2009.

The Federal Court awarded the couple $12,000 in compensation for the times Air Canada did not serve them in French.

Air Canada was also ordered to apologize to the Thibodeaus.

But the Federal Court of Appeal set aside the lower court’s judgment and reduced the amount of money awarded to the couple.

As is its custom, the Supreme Court did not provide reasons for its decision.

Thomas Mulcair vs. The Supreme Court vs. The Liberals

By Aaron Wherry - Tuesday, April 30, 2013 at 1:59 PM - 0 Comments

Further to Mr. Mulcair’s concerns about the Supreme Court, Francoise Boivin wrote to the other parties to ask that they support the NDP’s call for disclosure. Stephane Dion has now responded for the Liberals.

Madam Member,

On behalf of the Liberal caucus, thank you for your letter dated April 29, 2013.

In your letter, you suggested that the Liberal caucus join the New Democratic Party in asking the Conservative government what its response will be to the motion passed by the Quebec National Assembly on April 16, 2013.

This motion calls for the federal government to release archived documents related to the constitutional negotiations which led to the patriation of the Constitution in 1982.

However, the federal government has already stated that it does not intend to give policy directives to civil servants responsible for the application of the Access to Information Act.

We would like the government to hold firm in this respect. The Conservatives already have a tendency to politicize everything; there is no need to encourage them in this bad habit. The last thing we should do is politicize the application of the Access to Information Act.

We believe this act should be strengthened; however, this should be done as part of a global legislative review and not in response to one specific request for information.

In your letter, you criticize the Supreme Court. Your leader, Mr. Mulcair, took things one step further by accusing the Supreme Court of never having had the intention to seriously investigate the allegations of inappropriate communications between judges and members of the executive branch in 1981.

We are distancing ourselves from these irresponsible and unfounded comments. There is no doubt in our minds that the Supreme Court investigated as it should.

We suggest that you leave history to historians. But, let’s not be naïve: separatist leaders have a vested interest in reinforcing the idea of a scheme in the minds of Quebeckers in order to undermine their confidence in the Supreme Court, in Canada and in the Charter of Rights and Freedoms.

To summarize, your leader has demonstrated irresponsibility on three fronts by attempting to politicize the application of an act, by criticizing the Supreme Court without foundation and by playing the game of separatist leaders.

If the NDP wants to play that game, it will have to play it with the Bloc alone once again.

Sincerely,

Hon. Stéphane Dion, MP
Liberal Democratic Reform and Intergovernmental Affairs critic

Thomas Mulcair and the Supreme Court

By Aaron Wherry - Tuesday, April 30, 2013 at 8:30 AM - 0 Comments

Over the weekend, Emmett Macfarlane questioned the wisdom of Thomas Mulcair’s decision to question the Supreme Court in regards to new questions around the Patriation Reference.

Yesterday, after QP, Mr. Mulcair was questioned about all of this.

What we’re doing is standing up foursquare in defence of the independence of the Supreme Court. We want to make sure that these documents that Canada does have are made public, that all this is put in the full light of day. We have a version that has come to us from England, full documents that have been provided to a Canadian historian. We want to make sure that the Canadian documents are put out as well. I wasn’t the only person to note that a laconic press release of several lines on a Friday afternoon at 4:30 didn’t do a lot to reassure people but that’s why we’re continuing the work today. Françoise Boivin, our Justice Critic, has written to the other parties, not only the official parties represented in the House but also to the Bloc and to Madame May of the Greens to make sure that everyone is requested. So we’ve asked all parties to help us move forward and get the full answer to this. That is the fundamental question here. It’s respect of our judicial institution to make sure that the separation of powers is fully respected in our country and that’s what we’re hoping to get an answer on…

What we’re trying to do is to establish whether the version that has been provided by Great Britain in very concrete documents is exactly what is borne through by the Canadian documents that do exist. We know that. They’ve just been blanked out, redacted, I guess is the word. So we want to make sure that those full documents are put forward for public view so people understand what took place. It’s important to defend our democratic institutions, to defend the independence of the judiciary and of course above all the independence of the Supreme Court from interference or communication between the executive and the judiciary.

Look, all you have to note is the fact that we had a Native Affairs Minister who recently stepped down for having written to the tax court. There have been cases of Liberals and Conservatives before that with communication between the court. That independence of the judiciary has to operate both ways. We’re standing up foursquare in defence of the independence of the judiciary. We want all Canadians to know if the Canadian documents confirm what has already been provided by Great Britain.

Frederic Bastien raises questions about top court’s review into Constitution allegations

By The Canadian Press - Sunday, April 28, 2013 at 6:15 PM - 0 Comments

MONTREAL – The author of a new book that alleges some the Supreme Court of Canada justices intervened in the patriation of the Constitution says he has questions about the internal review into the matter.

Frederic Bastien says he wants to know more details about how the Supreme Court conducted its investigation.

He also wants to know why the Canadian government continues to keep some documents from the period secret.

The court launched the review after Bastien’s book, “La bataille de Londres,” set off a political controversy in Quebec.

In the book, Bastien says that Canada’s then chief justice of the Supreme Court provided information to the Canadian and British governments on discussions between the justices about the legality of repatriation.

Continue…

How the Supreme Court and Tom Mulcair made something out of not much

By Emmett Macfarlane - Saturday, April 27, 2013 at 9:56 PM - 0 Comments

Late Friday the Supreme Court released a statement regarding its internal investigation into allegations—published in a recent book by scholar Frédéric Bastien—that two of its justices made inappropriate disclosures about the Court’s deliberations regarding the 1981 patriation reference case.

Drawing on documents obtained from the British government through freedom of information requests (Bastien also received Canadian documents, but they were apparently heavily redacted), the book alleges that, in 1980, former Justice Willard Estey informed British officials the Court would be addressing the patriation issue, which centered on whether the federal government under Pierre Trudeau required provincial consent to seek constitutional change (at the time, the Canadian Constitution did not have its own amending formula: any changes thus required an Act of the British Parliament). More significantly, it is alleged that then-Chief Justice Bora Laskin revealed to British and Canadian government officials that the Court was divided on the issue and also gave his two cents on when he thought a decision would be forthcoming.

If the allegations are true, Estey’s and especially Laskin’s actions were completely inappropriate. The Court jealously guards the substantive details of its internal decision-making in order to preserve its institutional independence and impartiality. Details about how specific cases are rendered could threaten the institution’s legitimacy, particularly in the context of the patriation reference, which led to constitutional negotiations in which Quebec was left the odd province out. That case—one of the Court’s most politically explosive—continues to feed nationalist sentiment in Quebec.

But while the allegations may create a disappointing black mark on the reputation of two former judges, they do not come close to calling into question the validity of the Court’s ruling. There is no sense that the personal communications described in the book were designed to influence the Court’s decision. Nor, it should be noted, were they successful if that was the aim. Even if we twist this story into one of crazy conspiracy, where Laskin was working with Trudeau to help bring about patriation, they did not succeed: Laskin was on the losing side of a Court decision that said Trudeau was bound, by convention though not by law, to seek substantial provincial consent.

Nevertheless, the book’s allegations unsurprisingly caused an uproar in Quebec, where the idea of betrayal prospers (the story of the kitchen accord meetings where the federal government got all remaining provinces on board, except Quebec, is recalled by some Quebec sovereigntists as “the night of the long knives”).

Quebec’s National Assembly unanimously called on Ottawa to release all documents regarding the patriation process and to investigate the claims. This demand was probably inevitable. Sovereigntists make hay out of any hint that Quebec’s interests were harmed by federal institutions, and federalist provincial parties in Quebec have to make a show of “confronting Ottawa” just to keep pace. More disappointing was that the federal leader of the Official Opposition, Tom Mulcair, voiced support for the motion as well. “It’s what everyone wants,” he said.

Imprudently, and perhaps far too self-conscious about a perceived threat to its reputation, the Supreme Court then announced it was conducting an internal investigation.

Nothing was going to come from this. All of the judges involved in the 1981 case are dead. There were unlikely to be phone records. Estey and Laskin were unlikely to have kept their own records about having inappropriate conversations. Why the Court announced an investigation into some rather vague allegations of misconduct by two deceased judges is a bit of a puzzle. And yesterday the Court released an entirely predictable short statement: “The Supreme Court of Canada conducted a thorough review of its records and it does not have any documents relevant to the alleged communications by former Chief Justice Bora Laskin and former Mr. Justice Willard Estey in relation to the patriation of the Constitution of Canada. This concludes the Court’s review.”

Enter Mulcair. The Court’s statement, he said, was simply not credible. “You won’t find something you don’t ask for. Those documents were given to Mr. Bastien by the Canadian government … and large elements were taken out. So the first thing that one would have expected the Supreme Court to do is to ask for the full version, read them, and start an investigation,” he said. “Instead, what they seem to have said from this cryptic, one-paragraph statement, is: ‘We looked in our filing cabinet and we don’t have them.’ … It’s a clear indication that the Supreme Court had no intention all along of ever dealing with this issue seriously. But unfortunately, it is an extremely serious issue.”

The implication of Mulcair’s comments is either that the Supreme Court is lazy and incompetent or that it is hiding something. Coming from the leader of the Official Opposition, and an aspiring prime minister, these comments have more potential to harm the Court than Bastien’s book. They are irresponsible, not only for the attempt to sully the Court’s integrity, but also for feeding the notion that the patriation process itself was illegitimate.

It is deeply troubling that a federalist leader would pour salt in this old wound. The comments serve nothing except raising doubts about the 1982 Constitution itself (which public opinion polls routinely show to be as popular, or even more popular, in Quebec than the rest of Canada—even if many in Quebec were angered by the process leading to it). And it feeds a pattern by the NDP under Mulcair of questionable judgment as it pertains to the Constitution and Quebec.

The Court’s response to the book’s allegations was unhelpful, to say the least. It should probably have avoided addressing the story at all. Further, by releasing its statement about the end of the investigation late on a Friday—a tactic of timing that modern governments the world over use to minimize the impact of bad or controversial news—the Court reveals itself to be all too strategic and sensitive to public relations. This does not excuse Mulcair for his comments, but the Court compounded this “controversy” by responding to it the way elected politicians would.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His new book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role is published by UBC Press.

Top court’s review into Constitution allegations unacceptable: Quebec

By The Canadian Press - Saturday, April 27, 2013 at 2:38 PM - 0 Comments

MONTREAL – Quebec’s deputy premier says he’s not satisfied with an investigation into allegations that some the Supreme Court of Canada justices intervened in the patriation of the Constitution.

Canada’s top court announced on Friday that it had completed a review of its records and found no documents related to the allegations.

The court launched the review after the recent publication of a book that alleges two of its former justices interfered in the political process and engaged in backroom discussions.

Francois Gendron, the Parti Quebecois’ deputy premier, says the allegations are very serious and the court’s decision to end the review is unacceptable.

Continue…

No documents on Constitution repatriation allegations: Supreme Court

By The Canadian Press - Friday, April 26, 2013 at 10:01 PM - 0 Comments

OTTAWA – The Supreme Court of Canada says it cannot find any documents related to explosive new allegations that some of its members intervened in the patriation of the Constitution.

The court scoured its archives after the recent publication of a book that alleges two of its former justices interfered in the political process and engaged in backroom discussions.

That search came up empty, the court says.

Continue…

Supreme Court dismisses Crown’s appeal of MacIntosh abuse case

By The Canadian Press - Monday, April 22, 2013 at 4:26 PM - 0 Comments

HALIFAX – Nova Scotia’s Public Prosecution Service will conduct a review of how it handles extradition cases after the Supreme Court of Canada ruled the Crown took too long to bring an accused sex offender to trial.

The high court, in an oral decision delivered Monday, rejected the Crown’s appeal of a lower court decision that quashed all 17 sex offence convictions against a Nova Scotia man involving boys in the 1970s.

In December 2011, the Nova Scotia Court of Appeal threw out the convictions against Ernest Fenwick MacIntosh on the grounds that a 14-year delay between the original allegations and the trial was too long.

Continue…

Supreme Court restores conviction of man who sexually assaulted his niece

By The Canadian Press - Friday, April 19, 2013 at 10:48 AM - 0 Comments

OTTAWA – The Supreme Court of Canada has restored the sexual assault conviction of a Newfoundland and Labrador man.

In its unanimous 7-0 decision Friday, the Supreme Court says an appeals court erred in overturning the man’s conviction.

The man — who cannot be identified because of a publication ban — was convicted by jury of sexually assaulting his niece.

During an initial interview with a male police officer, a social worker and her mother, the girl described only one incident of sexual abuse and could not remember many details.

In a subsequent interview with a female police officer, the girl described more incidents that she said she did not feel comfortable talking about in the presence of a male officer and her mother.

The appeals court was troubled by inconsistencies in the girl’s testimony and overturned the conviction.

But the Supreme Court said the jury had all the information it needed to reach its decision to convict.

“Respectfully, the court of appeal, while rightly conscious of its responsibility to conduct a thorough review of the record, erred by applying the wrong legal test in carrying out that review,” Justice Thomas Cromwell wrote for the court.

“It further erred by failing to take a sufficiently deferential stance in relation to the credibility findings made by the jury.”

Updated: Supreme Court won’t hear Canadian Press appeal in Tommy Douglas case

By The Canadian Press - Thursday, March 28, 2013 at 1:00 PM - 0 Comments

OTTAWA – The Supreme Court of Canada has squelched an effort by The Canadian Press to lift the shroud of secrecy over an intelligence dossier compiled on socialist trailblazer Tommy Douglas.

The high court said Friday it won’t hear reporter Jim Bronskill’s appeal in his long-running fight to have more information in the Douglas file made public.

Paul Champ, the news agency’s lawyer, said the refusal to hear the appeal was disappointing.

“This decision is a blow to the study and understanding of Canadian history,” he said.

Continue…

Updated: Supreme Court rules on police powers for snooping on text messages

By The Canadian Press - Wednesday, March 27, 2013 at 11:23 AM - 0 Comments

OTTAWA – Police need special wiretap orders — not just ordinary search warrants — to intercept cellphone text messages as part of criminal investigations, the Supreme Court of Canada ruled Wednesday.

In a 5-2 split decision, the court sided with wireless carrier Telus (TSX:T) by agreeing that text messaging is essentially another form of conversation and should receive the same protection to which private communications are entitled under the Criminal Code.

“Text messaging is, in essence, an electronic conversation,” Justice Rosalie Abella wrote for the majority of the court. “Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.

“The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled.”

Continue…

Supreme Court allows bank overtime lawsuits to go ahead as class action cases

By The Canadian Press - Thursday, March 21, 2013 at 11:34 AM - 0 Comments

OTTAWA – The Supreme Court of Canada has cleared the way for a pair of class-action lawsuits against CIBC (TSX:CM) and Scotiabank (TSX:BNS) seeking hundreds of millions of dollars for unpaid overtime to go ahead.

The banks had sought leave to appeal a lower court decision allowing the cases, but the Supreme Court dismissed the application.

The lawsuits allege thousands of workers were denied overtime pay even though they were assigned more work than could be completed within their standard hours.

A lower court had denied class action status to the CIBC case, while a different court had allowed class action status be granted to the Scotiabank lawsuit. Continue…

Updated: Supreme Court won’t hear the appeal of a man who killed Quebec political aide

By The Canadian Press - Thursday, March 14, 2013 at 6:23 AM - 0 Comments

OTTAWA – The Supreme Court of Canada will not hear the appeal of a man convicted of killing an aide to a Quebec cabinet minister.

Francis Proulx was found guilty in 2009 of murdering Nancy Michaud, who worked for Claude Bechard, a member of then-premier Jean Charest’s Liberal cabinet.

Proulx was sentenced to life in prison without possibility of parole for 25 years.

He has acknowledged his 2008 crime, but argued he should not be held criminally responsible because of a mental disorder.

Proulx wanted the top court to overturn the conviction and order a new trial.

As is usual in leave to appeal rulings, the justices gave no reasons for refusing to hear the appeal.

The case was a grisly one.

Proulx entered Michaud’s house in Riviere-Ouelle, in the lower St. Lawrence region, and took her hostage while her two children slept.

He also took credit cards and personal identification numbers and, shortly afterward, shot her in the head.

Before disposing of the victim, he had sex with her corpse.

Continue…

Supreme Court sides with Metis in historic Manitoba land claim dispute

By The Canadian Press - Friday, March 8, 2013 at 10:33 AM - 0 Comments

OTTAWA – The Manitoba Metis Federation has won a victory in a land dispute more than a century in the making.

In a 6-2 ruling, the Supreme Court of Canada says the way the federal government handed out land to children of the Metis more than 100 years ago failed to live up to its constitutional obligations.

“The federal Crown failed to implement the land grant provision … in accordance with the honour of the Crown,” the decision says.

The long-running legal battle stems from a deal that ultimately made Manitoba Canada’s fifth province.

The Manitoba Metis Federation claims the federal government never lived up to its obligation to set aside thousands of kilometres of land — including all of present-day Winnipeg — for the children of the Metis.

The Crown “acted with persistent inattention and failed to act diligently to achieve the purposes” of the land-grant agreement, the judgment reads.

“This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade…. This was inconsistent with the behaviour demanded by the honour of the Crown: a government sincerely intent on fulfilling the duty that its honour demanded could and should have done better.”

Government lawyers had countered that the Metis lawsuit was filed far too long after the land deal, and that Ottawa did not actually violate its side of the agreement.

The Supreme Court court ruling, which comes after a legal dispute dating back three decades, could potentially open the door to land-claim negotiations.

The Supreme Court Senate reference: It’s going well

By Paul Wells - Wednesday, March 6, 2013 at 10:38 AM - 0 Comments

Guys, I’m pretty sure if we try hard we can get the PM to say something cranky about Liberal judges today in Question Period. I suspect he’s in a mood. His Supreme Court reference on changes to the composition of the Senate is having a lousy ride through the judicial process.

Setback 1: Two weeks ago the Supremes rejected a(n insane) request from the Justice Department that the top court not bother to receive legal arguments in the reference, a request the feds made on the ridiculous grounds that everything that could be said on this specific set of reference questions has already been said in more than a century of general debate on Senate-related issues.

Setback 2: Considerably more embarrassing for the government. Continue…

Supreme Court of Canada upholds decision in bathtub murder conspiracy

By Steve Rennie, The Canadian Press - Friday, March 1, 2013 at 2:05 PM - 0 Comments

OTTAWA – The Supreme Court of Canada has dismissed the appeal of a young man convicted of conspiring to help two teenaged girls drug and drown their alcoholic mother in a bathtub.

In doing so, the high court clarified the stage at which someone becomes part of a conspiracy.

A lower court convicted the man — whose name is protected under the young offender law — of conspiracy to commit murder for his role in the 2003 death of his girlfriend’s mother

The court heard he suggested that the sisters — who were 15 and 16 years old at the time — ply their mother with alcohol and pills in the bathtub of their Mississauga, Ont., home.

Police uncovered a chat log between the young man and his girlfriend from a week before the murder.

Continue…

Supreme Court to hear N.L. case of father convicted of drowning daughters

By The Canadian Press - Thursday, February 28, 2013 at 11:41 AM - 0 Comments

OTTAWA – The Supreme Court of Canada has agreed to hear a Crown appeal in the case of a Newfoundland man sentenced to life in prison after his two daughters drowned.

The Crown is asking the justices to overturn an appeal court ruling that ordered a new trial for Nelson Hart.

He was found guilty in 2007 of first-degree murder in the deaths of three-year-old twins Karen and Krista on Aug. 4, 2002, at Gander Lake in central Newfoundland.

Last fall, the Newfoundland and Labrador Court of Appeal ruled 2-1 that a confession Hart gave during an elaborate undercover RCMP operation should not have been entered as evidence.

The appeal judges were divided on the key question of whether the confession obtained during the so-called “Mr. Big” sting was the result of improper conduct that violated Hart’s rights.

As usual in applications for leave, the Supreme Court gave no reasons for agreeing to hear the case.

Supreme Court won’t hear Toronto 18 sentence appeal

By The Canadian Press - Thursday, February 28, 2013 at 10:20 AM - 0 Comments

OTTAWA – The Supreme Court of Canada will not hear the cases of three members of the so-called Toronto 18 terrorist group who wanted to appeal their sentences.

Ontario’s Appeal Court had previously upheld the maximum sentence for ringleader Zakaria Amara and significantly increased the sentences of two co-conspirators.

All three sought leave to appeal their sentences to the Supreme Court, but today the high court declined to hear the cases.

The decision means their sentences stand, including Amara’s sentence of life in prison with no chance of parole for 10 years — the harshest penalty available for a terrorism offence.

Saad Khalid and Saad Gaya are in prison on 20-year and 18-year sentences, respectively, after the Court of Appeal for Ontario increased their sentences by six years each.

All three were convicted in 2009 after pleading guilty to terrorism charges in a plot to bomb CSIS headquarters, the Toronto Stock Exchange and other targets including a military base.

The Whatcott case: Drawing a line between free speech and hate

By Emmett Macfarlane - Wednesday, February 27, 2013 at 1:18 PM - 0 Comments

The Supreme Court has drawn a line between free speech and hate speech, but it did so with a slightly shaky hand.

The length of time it took the Court to provide a constitutionally acceptable approach to identifying hate speech—504 days from the hearing of the case to today’s decision—suggests spotting an “unacceptable” level of hate isn’t as straightforward as the justices seem to think.

At issue in today’s ruling were flyers distributed by William Whatcott containing a vile attack on gays that suggested exposure to homosexuals would “lead to the early death and morbidity of children,” among other odious beliefs. While no thinking person would find such thoughts acceptable on a moral level, whether the expression of such thoughts should be subject to state sanction presents a fundamental constitutional issue relating to freedom of expression under the Charter of Rights. The Court found that two of his four pamphlets fall under the Code.

Today’s decision keeps in place part of the Saskatchewan Human Rights Code that prohibits expression “that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.” The decision also largely upholds the most relevant precedent (the 1990 Taylor case), but with a few changes that narrow the definition and application of “hatred.”

First, drawing largely on the Taylor case, the judges confront the obvious problem that emotion is central to a person’s reaction to speech, and that an approach that interprets “hatred” should not be premised simply on eliminating feelings of dislike. The purpose of the legislation is to prevent the risk of harms associated with “extreme” examples of speech, such as discrimination. The Court settles on “detestation” and “vilification” to describe the harmful effects (abandoning a third word from the Taylor case, “calumny,” as unnecessary).

Second, the Court emphasized that the focus should be on the effects of the speech, rather than on the nature of the ideas expressed. “If the repugnancy or offensiveness of an idea does not exclude it from Charter protection under s.2(b), they cannot, in themselves, be sufficient to justify a limit on expression.” Thus a blanket prohibition on hateful ideas would clearly be contrary to the core of freedom of expression. The distinction drawn here is between such expression and expression “which exposes groups to hatred.”

Finally, the judges find that the phrase “ridicule, belittles or otherwise affronts the dignity of” in the Code does not meet the standard of “detestation” or “vilification” and should be severed from the legislation.

This approach faces a number of challenges, which the judges make their best attempt to address. How can this standard of detestation or vilification be identified? Feelings, even the deepest, most extreme feelings that result from hatred, are inherently subjective. We can’t rely on the feelings of a potential victim of hate speech; after all, people react to different ideas in different ways. Instead, the Court lays out what it calls an “objective” approach: would a “reasonable person,” knowing the full context and circumstances of the hateful speech, believe it likely to raise the risk of discrimination or some type of societal harm?

Courts have long relied on this mythical reasonable person to deal with the interpretation and application of inherently subjective concepts. The problem, of course, is that reasonable people might reasonably disagree. To some extent the Court has reinforced the idea that hate speech, like pornography, is something a reasonable person knows when he or she sees it. The Court hasn’t put forward a definition so much as it has attempted to lay down a threshold for acceptable speech. But that line is obfuscated by the very emotions it is purportedly based on.

A more fundamental problem is that the Court’s notion of a risk of “harm” that results from hate speech is ill-defined. Shouldn’t there be evidence that the expression of hatred had actual discriminatory effects? The judges acknowledge that the Taylor case was subjected to criticism along those lines: the Court’s approach does not do enough to ensure limits on free expression were “demonstrably justified.”

Today’s decision responds to these concerns by saying such criticism “ignores the particularly insidious nature of hate speech. The end goal of hate speech is to shift the environment from one where harm against vulnerable groups is not tolerated to one where hate speech has created a place where this is either accepted or a blind eye is turned.” As a result, the best approach to take is one of a “reasonable apprehension of harm.”

While laudable in theory, the scenario where hateful speech produces an actual harmful environment for vulnerable groups seems to imply a lowest common denominator expectation of the reaction broader society will have to the hateful speech. Why expect, however plausible, that a harmful environment will be produced rather than the opposite: where individuals drown out the haters with expression of their own?

The argument that hate speech is “insidious” doesn’t appear to give sufficient weight to free expression. In fact, the “reasonable apprehension of harm” approach seems to act in direct contradiction to the Court’s stated position that the standard of review should be based on the effects of the speech rather than the ideas contained within.

It is highly likely that the Court took so long to render a decision in this case because the judges had to work hard to come up with unanimous reasons everyone could agree on. (A rare 6-0 judgment, the result of the retirement of Justice Deschamps, who took part in the hearing but retired more than six months before the decision was rendered and so could not sign on). The result is a bit of a messy compromise, where the standard laid out for lower courts to follow ultimately boils down to “some hateful ideas are okay, but not the really hateful ones that a reasonable person thinks might cause discrimination or harm.”

For some people, this will all seem eminently reasonable. For others, it is a line-drawing exercise fraught with difficulty.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo.