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The legal and political worlds were set abuzz late last week with the release of the much-anticipated decision of the Supreme Court of Canada in the case officially called Reference Re Supreme Court Act ss. 5 and 6, but known to most as the Nadon Reference.  The case required the Court to consider the validity of the federal government’s appointment of the Honourable Marc Nadon to the country’s highest court. Justice Nadon was, at the time, a semi-retired judge of the Federal Court of Appeal, and the government appointed him to replace the retiring criminal justice giant Morris Fish, who retired from the Court in the summer of 2013.  The Supreme Court of Canada is composed of nine justices, of whom three are traditionally appointed from either the Quebec legal profession or the Quebec Courts.  At the time of his appointment, Nadon, J. was neither a member of the Quebec legal profession (a lawyer), nor of Quebec’s courts.  This was the focus of the challenge. The challenge was started by a prominent Toronto immigration lawyer who, ironically enough, went to the Federal Court (one step below the very Court from which Nadon, J. was appointed), seeking an Order preventing the appointment.  The argument was that even though Nadon, J. had been a Quebec lawyer for many years before going to the Federal Court, he could not go to the Supreme Court of Canada from the Federal Court system if he were to go as a Quebec appointment. There has been much speculation as to why the government appointed Nadon, J. in the first place.  According to many, he was not only not on the short list, but was not even on the “long list” of those generally expected to get the nod.  There is a consensus among many, however, that it was Nadon, J.’s spirited dissent supporting the federal government's refusal to repatriate Canadian Al Qaeda  member Omar Khadr to Canada from Guantanamo Bay that caught the government’s favour. It cannot be forgotten that this government has supported tightened and toughened criminal justice laws relating not only to drugs, but also to firearms, and of course international terrorism.  Perhaps the Prime Minister felt that Nadon, J. would bring deference to government, and not challenge, in his opinions at the high court. Whatever the various motivations, the case was watched carefully, and by many.  Some were interested in the politics and what it means for the Court.  Others were interested in the law. The Court’s decision, shared by six of the seven judges who heard the case, was that the appointment was invalid.  It was not just because the government had gone about the process in the technically problematic fashion of appointing someone who did not meet the eligibility criteria on the face of the Supreme Court Act.  If that were the only reason, then without doubt, the government could just change the Supreme Court Act and try again.  What matters about the case is that the Court recognized that the spirit of the law requiring that Quebec appointments come from a pool of either Quebec judges or Quebec lawyers means something. Canada is a country of numerous legal systems.  Some call it inter-normativity.  Others describe it as multiple legal streams flowing into one “legal river”.  The Court held that the integrity of one of the most important streams, the civil law, as well as the legitimacy of the Court in the eyes of many in the country’s most populous province, Quebec, required that the government follow the basic expectation that the Quebec contingent on the Court be from Quebec, in terms of legal tradition and not just last name. So, what does this mean for the criminal law?  We cannot know yet what will be the “ins and outs” for future challenges to, say, antiterrorism laws, or whether the the next appointment will be any less deferential than this one may have been.  What strikes me, however, is two things.  First, the Court struck a blow for judicial independence.  It is the Court’s place to interpret law, and when the government tries to change the fundamental law of the nation – the Constitution – without going through the peculiar super-majorities that that requires, the Court has shown it will stand up and draw the line.  For criminal accused, who are typically the most feared and least supported, this is an extremely important – even vital – attribute of the legal system.  Indeed, the golden thread of the criminal law, which is the presumption of innocence, depends for its very breath, on a judiciary that is not afraid to stand up to the state. The second observation is this: unlike in many titanic constitutional struggles over the years, this case was not a battle of the federal government versus a huge corporation or against a competing provincial government.  This was not even the Crown versus an accused in the well-understood forum of the criminal trial. What this was, was a creative and fearless lawyer who thought something was wrong, and he stood up to fight it.  Had he not done so, Nadon, J. would be a Justice of Canada’s highest Court.  This writer does not know what that would have meant and what his legacy would have been, but knows that what happened means at least this: our legal system still not only allows, but creates great open space for, creative, courageous and independent lawyers to bring truth to power, and to win.  As a result, the Nadon Reference means, to me at least, that the Courts and the legal profession are both independent.  Hear hear.

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In the last blog post, we examined the case of Joseph Lloyd, a small-time dealer of cocaine, methamphetamine and heroin in the downtown eastside who was able to persuade the Court that the recent changes to the Controlled Drugs and Substances Act, which provide for mandatory minimum jail sentences for certain drug offenders (including, in his case, repeat-sellers of certain hard drugs) provided for penalties that are so harsh that they can be described as being “abhorrent”, “intolerable”, “grossly disproportionate” and “cruel and unusual.” There is ample evidence that the trend is not limited to the downtown eastside, and not just to the drug world. Consider the case of 29-year old Glenn Sheck, whose night started with a visit to an Earl’s Restaurant just outside White Rock.  He was carrying a Louis Vuitton bag but did not realize that he was under close police surveillance.  Sitting in the restaurant alone, he looked up to see police members quietly ask him to come with them.  Once outside, he was arrested and searched.  In the Louis Vuitton police found some serious firepower: a 9 millimeter Glock handgun equipped with ten rounds in the clip. Mr. Sheck was found guilty of the unlawful possession of a loaded, prohibited firearm, and the Crown, having proceeded against him under new mandatory minimum penalties in the Criminal Code, sought a three-year sentence, despite the fact that he was before the Court with no criminal record.  As a result, Mr. Sheck asked the Court to strike down the law and sentence him under the old rules, in which there was no mandatory minimum. The judge agreed that a three year sentence would be excessive and harsh for Mr. Sheck, but at the same time, noted that Mr. Sheck's case was a very serious one, having brought a loaded handgun that was easily and readily accessible into a busy restaurant.  Although a three year sentence for a first-time offender in these circumstances would be excessive and harsh, the judge found that such a sentence would not rise to the level of being what the Canadian Charter of Rights and Freedoms calls “cruel and unusual punishment.” However, just as in the case of Mr. Lloyd in the downtown eastside, Mr. Sheck had other hypothetical scenarios to present to the Court.  And he was successful. In the Sheck case, the reasonable hypothetical was was a young, foolish person who has a loaded restricted firearm in circumstances that look very serious at first blush, but after learning more context, there is in fact less danger and menace than at first suspected.  Mr. Sheck's "reasonable hypothetical" was actually drawn from a an actual case of police bursting into a man’s bedroom to find him holding the firearm and a camera.  He was posing and trying to look tough. Though the gun was loaded and was dangerous, the situation was more foolish and less dangerous than it first appeared, especially well into the case, when more about the young man was known.  However, the judge in Sheck asked himself what would happen in a case where, based on the early appearance of the case, the Crown chose to to proceed against an individual under what is called the “indictable” process.  When the Crown proceeds “indictably” or “by indictment”, the mandatory minimum penalty for a conviction jumps from 1 year in less serious cases to 3 years, no matter what the actual circumstances.  In such a case, a judge, even if he or she heard all of the evidence and knew that the context made the case more foolish than dangerous, would nevertheless have no authority to drop the sentence from a 3 year minimum to a 1 year minimum on the basis that while the case may have looked more serious at the beginning, it turned out to be much less so, once all the evidence was in. On the basis of that analysis, the judge struck down the law and went to find that the s. 1 “saving” provisions could not rescue the law from itself. Finally, lest anyone wonder whether this trend is limited to a couple of provincial court judges in downtown Vancouver, it seems the movement is much wider.  The most notable of all of the cases is the one of R. v. Nur, a decision of the Ontario Court of Appeal released at the end of 2013. In Nur, the Court struck down the threee year mandatory minimum.  That is now the law in Ontario, but because that Court is considered by many to be one of, if not the, leading appeals court (below the Supreme Court of Canada) on criminal matters, it is sure to be considered as persuasive throughout Canada.  Moreover, in Nur, the Court sat as a panel of five justices instead of the usual three which lends added gravity and weight to the Court’s decision.  Finally, the decision for the Court was written by Mr. Justice Doherty, one of the most prominent and well-respected criminal judges in a generation. Although Nur was decided less than four months ago, it has been followed by at least four courts in three different jurisdictions.  Whether it remains the law may soon be clear – the Crown appealed it to the Supreme Court of Canada, which has yet to decide whether it will hear the appeal.

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As part of its ongoing effort to "toughen" the criminal law in Canada, and in a nod to the American experience, the Canadian government under the Prime Minister has been stiffening the penalties for a whole range of criminal offences.  The most prominent of those are the mandatory minimum sentences for certain drug trafficking offences, as well as those for certain firearms offences. One example of the new minimums for drug trafficking snared Joseph Lloyd, a resident of Vancouver's Downtown Lower Eastside who admitted to being addicted to crack cocaine, methamphetamine and heroin.  On March 22, 2013, police arrested Mr. Lloyd for possessing a knife in violation of a probation order.  He had been released from prison after serving a sentence for possessing methamphetamine with an intention to traffic (or give, sell, distribute or share) in it.  When he was searched in March, police found sufficient quantities of cocaine, methamphetamine and heroin to lay another set of criminal charges against him - for possessing those drugs for the purposes of trafficking in them. Mr. Lloyd lost his trial and the consequences were potentially very significant.  Because of his previous conviction for a drug trafficking-type offence, he was subject to an automatic, minimum sentence of one year in jail.  In fact, the Crown was seeking two years in jail.  Although Mr. Lloyd lost his trial, he scored a big victory at the sentencing, in convincing the sentencing judge that although a one year sentence would not be a grossly disproportionate for what he had done, the fact that it was a minimum for everyone, made the law creating the minimum not only unconstitutional but invalid across the board. The way he did so was to create a hypothetical scenario of an addicted, downtown east side drug user with a criminal record for trafficking offences, possessing a small amount of a serious drug to share with a spouse or friend.  The judge accepted that this scenario, though hypothetical, was in no way far-fetched and in fact happens daily in the very neighbourhood where Mr. Lloyd lived. Because a one year sentence for such a person is so grossly disproportionate that Canadians would find it abhorrent or intolerable, the judge found that it violated s. 12 of the Canadian Charter of Rights and Freedoms, which provides a guarantee against cruel and unusual punishment.  As a result, he struck the law down, and in a supplementary ruling, he found that s. 1 of the Charter, which can justify otherwise unconstitutional laws, did not "save" this mandatory minimum sentence. Mr. Lloyd's case was just the latest, and a very local, example of what might be a growing judicial trend against mandatory minimum penalties.  More in the next post.

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Whether to Say No to the Blow - If You're Gonna Do It, Prepare to Defend It   On a cold February evening in Williams Lake, Grant Goleski had the start of a bad night. He was pulled over by a member of the RCMP who said that he had watched Mr. Goleski cruise through two stop signs without stopping as well as drive his truck 25 km / hour over the speed limit. The same officer said he smelled liquor on Mr. Goleski's breath and demanded a breath sample, which Mr. Goleski failed. Back at the detachment, upset because he thought the officer had lied about the two "blown" stop signs, Mr. Goleski, who had agreed to give "breathalyzer" samples to pin down his exact blood alcohol level or "BAC", abruptly refused. At his trial he said it was because the officer would falsify the paperwork. Mr. Goleski lost his trial, but he won his appeal. The issue was, when someone refuses to give a sample of his breath, which you may only do if you have a "reasonable excuse", who has to prove that the excuse was reasonable - the person who refused? Or the Crown? The trial judge thought it was the person who refused. The appeal judge (http://canlii.ca/t/fm85j) disagreed, following a decision from Saskatchewan's highest court (http://canlii.ca/t/5g0t). On March 3, 2014, the highest court in the Province of British Columbia weighed in: trial judge - right, appeal judge and Saskatchewan Court of Appeal - wrong. In R. v. Goleski (http://www.courts.gov.bc.ca/jdb-txt/CA/14/00/2014BCCA0080.htm) the B.C. Court of Appeal ruled that in impaired driving cases, just like in tobacco manufacturing cases, importing controlled drugs cases, and many, many like them, if someone does something that is generally against the law, and wants the benefit of an excuse, then he or she will bear the burden of proving they had that right.  

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