Khawaja Receives Prison Sentence

Mohammed Momin Khawaja, a Canadian software developer, was recently found guilty in a trial related to foiled bomb plot in the United Kingdom. Khawaja will serve 10 years and 6 months in prison - much less than five of his co-conspirators in England who each received life sentences.1] Evidence in the British trial showed that Khawaja travelled to Pakistan in 2003, where he met fellow Jihadi sympathizers who found Khawaja to be very enthusiastic and useful. They also welcomed his £1,800 donation.[2] Khawaja’s role in the bomb plot was to build a remote-control detonator. Omar Khyam, the ringleader of the operation, was under British police and MI5 surveillance when Khawaja travelled to the UK to meet him. Khawaja’s details were immediately passed on to Canadian authorities, who began monitoring his activities upon return to Canada.[3]

Khawaja’s trial is significant as he is the first individual to be charged under the 2001 Anti-Terrorism Act,[4]which was introduced after the September 11 attacks.[5] Crown Prosecutor David McKercher pressed for a sentence of two life terms, plus an additional 44 years, arguing that Khawaja was “a grave and palpable threat to society”:

 

He’s chosen a murderous way of life. There is no indication of any remorse whatsoever. A life sentence is more benign than the killings and maiming he intended.[6]
While Khawaja never testified himself, his defence was that he wanted to join Muslim insurgents fighting NATO troops in Afghanistan, but was tricked into building electronic triggers to detonate bombs in London.[7]Because the prosecution team provided no evidence of Khawaja’s knowledge of the British bomb plot, Ontario Superior Court Justice Douglas Rutherford acquitted him of two of the seven charges against him.[8]The first two counts related to the British bomb plot, while the next four counts “established that Khawaja participated in or contributed to the activity of the terrorist group with a view to facilitating its terrorist activity.”[9]Under the principle in Kienapple,[10] where “the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences,” no sentence was imposed on count two against Khawaja.[11] Much emphasis was placed on Khawaja’s good behaviour in detention.[12] The trial judge counted Khawaja’s five years in custody before trial in determining his sentence; he will not be eligible for parole until he has served half of his sentence.[13]

 

Here is a breakdown of Khawaja’s sentence:[14]

 

Section of Criminal Code
Maximum Sentence Possible
Sentence for Khawaja
Count 1
81(1)(a)[15]
Life Imprisonment
4 Years
Count 3
83.18(1)[16]
10 Years
3 Years
Count 4
83.21(1)[17]
Life Imprisonment
2 Years
Count 5
83.03(a)[18]
10 Years
2 Years
Count 6
83.18(1)
10 Years
3 Months
Count 7
83.19[19]
14 Years
3 Months

 

Khawaja may appeal the sentence, which his lawyer, Lawrence Greenspon, called “excessive.”[20] On the other hand, University of Toronto terrorism expert Wesley Wark called it a “surprisingly light sentence in the circumstances,” and “perhaps people will say this is another example that our justice system is too lenient in the face of serious crimes.”[21]

 

[1] Omar Khyam, Salahuddin Amin, Jawed Akbar, Anthony Garcia and Waheed Mahmood, [2008] EWCA Crim 1612 (C.A.).
[2] Supra note 1.
[3] Ibid.
[5] Supra note 1.
[6] Ian MacLeod, “Crown Demands Two Life Terms for Khawaja” The Ottawa Citizen  (13 February 2009).
[7] Ibid.
[8] R. v. Khawaja, [2008] O.J. No. 42444 at para. 3.
[9] Ibid. at para. 5.
[10] Kienapple v. R., [1975] 1 S.C.R. 729.
[11] Supra note 9, at paras. 18 and 21. The possession and development charges stem from the same activity, which led to the court’s ruling (at para. 20).
[12] Ibid. at para. 26.
[13] Ibid. at paras 45 and 55.
[14] Ibid. at paras 34 and 54.
[15] “Everyone commits an offence who does anything with intent to cause an explosion of an explosive substance that is likely to cause serious bodily harm or death to persons or is likely to cause serious damage to property” (R.S.C. 1985, c. C-46).
[16] “Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years” (ibid.).
[17] “Every person who knowingly instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group, for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity, is guilty of an indictable offence and liable to imprisonment for life” (ibid.).
[18] “Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity” (ibid.).
[19] “Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years” (ibid.).
[20] CTV News, “Khawaja Sentenced to 10.5 Years Under Terror Law” (12 March 2009).
[21] Ibid.


Language Rights in Alberta — R. v. Caron

On December 4, 2003, Gilles Caron was charged with making an unsafe left turn. While paying the traffic ticket would have cost him well under $100, Caron sought to challenge the ticket on the basis that the legislation authorizing the traffic ticket was not enacted in both English and French, and so infringed his language rights.[1] Caron beat the charge [2] in one of the longest running cases in Alberta court history. His case has also addressed important supplemental issues such as the determination of entitlement to interim cost awards to help pay for legal expenses, an issue of importance to Caron after the federal government scrapped the Court Challenges Program that been supporting his court costs. This case brief offers a glimpse into the various court appearances by Mr. Caron, beginning with his first appearance in court in 2006, and ending in the recent Alberta appeal court decision on costs, discussed elsewhere by my colleague Alex Bailey.[3] Of particular importance in the constitutional context is the 2008 Alberta provincial court decision, which dives into the historical context surrounding Caron’s language rights claim. The result of the case could have a long lasting impact on how legislation in drafted in Alberta.

First visit to the Provincial Court — 2006 ABPC 278[4]

On December 9, 2003, Caron sent a letter to the provincial court requesting to have his trial in French. He also plead that his traffic ticket was constitutionally invalid as it was not in both official languages.[5] A number of interactions between the court, the Crown prosecutor initially involved in the case (Mr. Kennedy), and Caron’s lawyer (Mr. Beaudais) took place between 2004 and 2006, yet it was only on February 13, 2006 (16 days before the trial started) that Theresa Haykowsky was named the Crown’s lawyer.[6] Because she was involved in another case at the time, many requests were made for adjournments. Notably, Mr. Kennedy was fully bilingual and there was much debate as to why the Crown needed to hire an outside lawyer at all to represent the Crown.[7] The outcomes sought by Caron in his case were as follows: an award of costs (under the authority of section 24(1) of the Charter of Rights and Freedoms) for the denial of his rights under the Charter’s sections 11(b) and 11(d),[8] as well as an award of interim costs to help cover Caron’s onerous legal fees.[9] Regarding the award of costs, Justice Wenden, the provincial court judge involved in the case, ordered the Crown to pay Caron’s legal fees, as well as to pay for the expenses of the expert witnesses for the continuation of the trial. This amounted to $15,949.65.[10] Regarding the award of interim costs, Justice Wenden decided that they should not be awarded in a quasi-criminal case like the one at hand, and so Caron’s request was rejected.[11]

Issue of costs gains importance — 2007 ABQB 262[12]

In April 2007, three issues from the provincial court case were considered on appeal in the Court of Queen’s Bench: a) the order of costs ($15,949.65) against the Crown, b) the dismissal of Caron’s request for interim costs, and c) an appeal by the Crown of the costs awarded by the provincial court under section 24(1) of theCharter.[13]

Justice Marceau found that the Crown had indeed delayed the trial, which is contrary to section 11(d) of theCharter. However, the legal standard relevant to the case being “correctness,”and in the absence of a clear, palpable, and overriding error on the part of the lower court judge, the award of costs against the Crown was not interfered with on appeal.[14] As for the second issue of interim costs, Justice Marceau found that the provincial court did not have jurisdiction to make an order relating to interim costs, and he left for “another day the question as to whether a party in proceedings before the Provincial Court might bring an application or have the matter referred to the Court of Queen’s Bench.”[15] In the end, the first issue was dismissed, the second issue was dismissed for lack of jurisdiction, and the third issue was allowed. The third issue became the subject of further litigation.[16]

Costs continue to be at issue — 2007 ABQB 632[17]

On October 22, 2007, Justice Ouellette presided over Caron’s request of an order for interim costs. Caron’s argument was that “public interest issues” were at stake, and so he should receive government funding as a remedy for his inability to cover his own courts costs.[18] Caron argued that he would pass the “Okanagan” test for an award of interim costs laid out by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band. [19] In the end, Justice Ouellette ordered that approximately $94,000 be granted to Caron to pay for his interim court costs, and costs associated with expert witnesses.[20]

Appealing the interim cost award — 2008 ABCA 111[21]

Justice Keith Ritter of the Alberta Court of Appeal declined to stay the interim funding award when it was appealed by the Crown. The Crown had not agreed with Justice Ouellette’s award of approximately $94,000 for Caron’s legal costs, and asked the court to stay the funding order pursuant to the Supreme Court’s decision in Okanagan.[22] Caron had been able to obtain, in total, over $300,000 in a series of cost orders, but they had all been set aside by Justice Marceau in 2007. This is why Caron applied for the interim funding order at issue here.[23] In siding with Caron, Justice Ritter looked at the test for a stay pending appeal, originating in RJR-MacDonald Inc. v. Canada (A.G.).[24]

Language rights and crucial historical evidence — 2008 ABPC 232[25]

In order to defend himself against his traffic violation, Caron provided notice to the Alberta Crown of his constitutional argument that because the law authorizing his ticket had not been translated into French, his constitutional rights had been violated. Caron sought four important remedies in light of his constitutional challenge:
  1. A declaration stating that Alberta’s Languages Act[26] was constitutionally invalid because it clashes with article 110 of the North-West Territories Act,[27] in place at the time the province was created. Because the Languages Act clashes with provisions of the Constitution, it should be invalidated under the authority of section 52(1) of the Constitution Act, 1982;
  2. As a remedy, an order that the accusations against him be struck from the court record on the authority of section 24(1) of the Charter;
  3. A declaration, based on section 52 of the Constitution Act, 1982, that Alberta’s provincial legislature should adopt and translate into French all of its laws and legislations, starting with those required by Caron for his trial.
  4. A declaration based on section 52 of the Constitution Act, 1982 that everyone has a constitutional right to a trial in French anywhere in Alberta.[28]
The trial, which started in March 2006, featured eight experts testifying over 89 days, and included four citizens who testified to the hardships of living in French in the province of Alberta.[29] Over 9000 pages of transcription and 93 pieces of evidence were used over the course of the trial. It is important to note that the trial was held entirely in French, with the exception of some interveners who were unilingual, and their testimony was translated in real-time in French.[30] The Crown was adamant that this trial not turn into an examination of historical evidence, as it felt this had been previously achieved in cases such as R v. Paquette[31] and R v. Mercure.[32] Mercure looked at section 110 of the NWT Act, which provides that “either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; … and all ordinances made under the Act shall be printed in both those languages.” After a review of the case law as well as statutory obligations, it was deemed that Alberta was not constitutionally obligated to enact laws in both official languages.[33] Following the verdict in Mercure, Alberta passed the Languages Act in 1988 to repeal the statutory requirement in theNWT Act and declare its English-only laws retroactively valid.

The crux of the Caron argument during this trial focused on expert evidence showing that “people of what is now Alberta only agreed to join Confederation if French language rights were protected.”[34] University of Alberta Campus Saint-Jean professor Edmond Aunger showed that over 75 percent of the western Canadian population spoke French in the 1800s, and that they also enjoyed an “official, recognized right” to use French in courts prior to the creation of the Northwest Territories in 1870.[35] Aunger went on to add that a provision was added in the NWT Act in 1877 to ensure that such rights would be adopted, and it carried over to Alberta when it was created in 1905. These rights were never respected.[36] In other words, the historical argument can be articulated as follows: “When the transfer of Rupert’s Land from the Hudson’s Bay Company to the Government of Canada was negotiated by Riel, it included the entire North West Territories and not only the Red River Colony.”[37]

Some examples of injustice towards Francophones in the province were discussed during the course of the trial. Leo Piquette, a former MLA for Athabasca-Lac La Biche, recounted the events surrounding the prohibition on him asking a question in French during question period in the Alberta legislature in the mid-1980s.[38] Another expert witness for the defence, Professor Dennis, who holds a doctorate in sociology, also testified about questions of cultural and social disadvantages of Francophones in Alberta.[39] Expert evidence, whether from academics or frontline people, is crucial in these types of cases. As stated by Nova Scotia judge Scanlon in R v. Marshall:[40] “the courts are very much dependant on the work of historians and anthropologists and the materials presented to the court by experts working in those areas.”[41]

Crucial to Caron’s case was a December 6, 1869 governor general proclamation, deemed by Caron to be a constitutional document guaranteeing linguistic rights.[42] As discussed earlier when talking about Aunger’s expert testimony, the defence’s main focus in the case was on the years 1846-77, with the argument that French was used in tribunals and the Assiniboia district council meetings for many years prior to the transfer of Rupert’s Land.[43] Three important events were held to have taken place prior to this land transfer, and Caron considered them important in order to show the extent of the use of French before the land transfer date: 1) documents (mémoires) exchanged between Métis Francophones and “half-breed” Anglophones in 1846, 2) the Sayer trial in 1849 and finally, 3) the use of French by the government of Assiniboia.[44] The importance of the Sayer trial was also much contested between the parties. The defence viewed it as an important case dealing with the use of French, while the Crown and many experts only viewed it in the context of fair trade.[45] Justice Wenden also decided to accept evidence that French was an official language of the Assiniboia council, and was widely used in tribunals there at the time.[46]

The Métis in Rupert’s Land organized a convention in December 1869, where a first list of rights was drafted, including linguistic rights. Among these rights was the declaration that “the English and French languages are common in the Legislature and the Courts, and that all public documents and Acts of the Legislature be published in both languages,” as well as that “the Judge of the Supreme Court speak the English and French languages.”[47] A second Métis convention was organized in Fort Garry in 1870, with the main objective being to draft a constitution. Professor Aunger suggested the list of rights was discussed at this convention, with the goal of assuring the status of French as an official language in the West. According to Aunger official bilingualism was solidified in Manitoba by section 23 of the Manitoba Act,[48] and that this extended to the North-West Territories, as the latter territories had the same governor as Manitoba.[49] Defence counsel stressed the importance of not only examining how established the Métis were in Manitoba, but also in the rest of the country. For example, many Métis were established in Rupert’s Land and the North-West Territories prior to 1870, and some were also employed by the Hudson’s Bay Company and spoke French in the course of employment. They also acted as interpreters with First Nations peoples.[50]

When the province of Manitoba was created, two administrations were needed but the defence alleged that in practice the two were the same, and that this ensured that bilingualism would continue in both Manitoba and the North-West Territories. Defence argued that this thesis is supported by a) relevant sections of theManitoba Act, b) the administrative structure of the North-West Territories, c) the membership of the North-West Territories council and d) the politics of the council.[51] The resistance of the Métis in 1869-70 was the result of a miscommunication between people in power and the Métis concerning their rights. The need for a constitutional guarantee regarding linguistic rights was a priority, as a simple political guarantee would not have been enough. The Métis wanted to make sure linguistic rights would be entrenched for future generations.[52]

Going back to the outcome of Caron’s case, Justice Wenden found that the law was clear that when it came to declarations stemming from section 52(1) of the Constitution Act, 1982, prior case law shows that “there is no inherent jurisdiction in the provincial court to issue general declarations of invalidity.”[53] Justice Wenden further concluded that he did, however, have the competence to give a limited declaration that the Traffic Safety Act[54] is invalid with respect to the portions of the Act authorizing Caron’s traffic ticket, as well as parts of the Use of Highways and Rules of the Road Regulation.[55] Because Justice Wenden was convinced by the constitutional arguments raised before the provincial court, Mr. Caron was found not guilty.[56]

Court of Appeal awards costs — 2009 ABCA 34[57]

My colleague Alex Bailey discusses the Court of Appeal’s decision here in greater detail. The appeal concerned two interim funding orders granted by the Court of Queen’s Bench regarding expert witnesses and legal fees.[58] Specifically, this decision has to do with the period of time in which Court Challenges Program funding was not available, leaving Caron to rely on funding orders granted by the courts.

Natasha Dubé (March 26, 2009)
Further Readings:

Natasha Dubé, “The Infamous $54 Traffic Ticket” Centre for Constitutional Studies (7 July 2008)

Natasha Dubé, “Minority Language Rights in Canada” Centre for Constitutional Studies (August 2008)

 

[2] In R  c. Caron, 2008 ABPC 232, Justice Wenden ruled in favour of Caron’s language rights claim, and dismissed the traffic offence.
[3] Alex Bailey, “Alberta Court of Appeal Awards Costs in Caron Case” Centre for Constitutional Studies (7 February 2009).
[4]R  c. Caron, 2006 ABPC 278.
[5] Ibid. at para. 1.
[6] Ibid.
[7] Ibid. at para. 40. This case also addressed the importance of Caron’s case, and that since it was a quasi-criminal matter, the justice minister should ”have assured himself that this case was managed by a prosecutor experienced in criminal law more than in constitutional law.” Ibid at para. 100.
[8]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 .
[9] Supra note 4 at para. 1.
[10] Ibid. at para. 126.
[11] Ibid. at para. 159.
[12]R v. Caron, 2007 ABQB 262.
[13] Ibid. at para. 1.
[14] Ibid. at para. 13.
[15] Ibid. at para. 142.
[16] Ibid. at para. 143.
[17] R v. Caron, 2007 ABQB 632
[18] Ibid. at para. 8.
[19] 2003 SCC 71 . This test was further considered in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2. In should be noted that the request for interim funding considered by Justice Ouellette followed the comments of Justice Marceau who had decided that interim costs could be awarded in a quasi-criminal case in R. v. Caron, 2007 ABQB 262.
[20] Supra note 15 at para. 46. As stated earlier, my colleague Alex Bailey discusses the issue of costs in a separate article found here.
[21] R v. Caron, 2008 ABCA 111
[22] Ibid. at para. 1.
[23] Ibid. at para. 5.
[24]1994 SCC 117. The three parts of the test are: serious question to be tried, irreparable harm, and balance of convenience.
[25]Supra note 2.
[26]Languages Act, R.S.A. 2000, c. L-6.
[27] R.S.C. 1886, c. 50 .
[28] Supra. note 2 at para. 4.
[29] Ibid. at paras. 14-15.
[30] Ibid. at para. 21.
[33] Ibid.
[34] Supra note 1.
[35] Geoff McMaster, “Campus Saint-Jean Prof Debunks Myth of English Alberta” Office of the Vice President (Research), University of Alberta (8 January 2009).
[36] Ibid.
[37] La Cause Caron, “The Argument”.
[38] Supra note 2 at para. 47.
[39] Ibid. at para. 60.
[41] Ibid. at para. 16.
[42] Supra note 2 at para. 73.
[43] Ibid. at para. 77.
[44] Ibid. at paras. 80-82. The following paragraphs explain what was found in those memoires exchanged between the Métis and the Half-breeds. While it is not important for this case brief to discuss all the intricate details found in them, it is important to note that at least one of the expert witnesses of the province feels these memoires have absolutely no value to the case. See ibid. at para. 106.
[45] Ibid. at para. 120.
[46] Ibid. at para. 167.
[47] Ibid. at para. 179.
[48] An Act to amend and continue the Act 32 and 33 Victoria chapter 3; and to establish and provide for the Government of the Province of Manitoba, 33 Victoria, c. 3 (Canada) .
[49] Ibid. at para. 185.
[50] Ibid. at para. 302.
[51] Ibid. at para. 324. The importance of section 23 has been examined elsewhere in the paper. Specifically, it guarantees the use of French or English in all matters that go to court, the court in question being the Supreme Court of Manitoba and the North-West Territories. See ibid. at para. 326. Section 35 also states that the Lieutenant-Governor of Manitoba is also that of the North-West Territories.
[52] Ibid. at paras. 559-560.
[53] Alberta v. K.B., 2000 ABQB 976 at paras. 565 and 568.
[55] Alta. Reg. 304/2002. Supra note 2, at para. 571.
[56] Ibid. at para. 575.
[57] R v. Caron, 2009 ABCA 34.
[58] Ibid. at para. 1.


Religious Freedom versus Defendants' Right to Face Their Accusers

The Ontario Superior Court is to decide whether an alleged sexual assault victim is allowed to wear a Muslim veil while testifying in court.[1] Justice Frank Marrocco will address the conflict between the values of religious freedom and a defendant’s right to face their accuser. This issue has delayed the trial since October 2008 and the defence counsel has indicated that he may file legal arguments seeking for the charges to be dropped against his client for unreasonable delay.[2]

The Supreme Court of Canada has, on numerous occasions, stressed the importance of freedom of religion.[3] The Court has described freedom of religion as follows:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

. . . Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.[4]

The Court has also considered cases involving the freedom of religion when that freedom competes with other Charter rights. The Court has held that “even if individuals demonstrate that they sincerely believe in the religious essence of an action . . . and even if they successfully demonstrate non-trivial or non-insubstantial interference with that practice, they will still have to consider how the exercise of their right impacts upon the rights of others in the context of the competing rights of private individuals.”[5] The Court has also avoided setting an internal limit on freedom of religion and has, instead, preferred to reconcile competing rights by means of a section 1 analysis,[6] which determines whether the limit on religious freedom “can be demonstrably justified in a free and democratic society.”[7] The Court has held this approach to be preferable because it gives the broadest possible scope to judicial review under the Charter.[8]

 

[1] Timothy Appleby, “Court to hear arguments over right to wear veil” (2 March 2009) online: Globe and Mail.
[2] Shannon Kari, “Veiled testimony hearings delayed as lawyers prepare arguments” (2 March 2009) online: National Post.
[3] Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 at para. 32 (CanLII).
[4] R. v. Big M Drug Mart Ltd., 1985 CanLII 69 at paras. 94-95 (S.C.C.).
[5] Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 62 (CanLII).
[6] Supra, note 3 at para. 26.
[7] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 (CanLII).
[8] Ross v. New Brunswick School District No. 15, 1996 CanLII 237 at para. 74 (S.C.C.).


R v. Ahenakew: Promotion of Hatred or Revolting Comment?

In 2002, David Ahenakew, a former Chief of the Assembly of First Nations, gave a speech and subsequent interview in which he made comments on various ethnic groups. These comments included blaming Jewish people for causing the Second World War, and indicating support for Hitler’s actions in executing six million Jews, as they were a “disease.”[1] Mr. Ahenakew had already been convicted of hate crimes in 2005, but successfully appealed that conviction a year later.[2] The speech in question was delivered at a conference by the First Nations of Saskatchewan, who at the time were very concerned about a parliamentary policy potentially requiring an Aboriginal person to sign a consent form when seeking medical care, which would be a violation of privacy and a barrier to medical care guaranteed in relevant First Nations’ treaties.[3] After his speech, Ahenakew was met outside by Mr. Parker, a reporter from the Saskatoon Star Phoenix, who had some specific questions regarding disparaging comments made by the accused during the speech.

In R v. Ahenakew,[4] Mr. Ahenakew defended himself against the charge that he committed an offence contrary to section 319(2) of the Criminal Code.[5]This section reads:

Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence punishable on summary conviction.
The seminal case of R v. Keegstra[6] is the most important case to deal with section 319(2) of the Criminal Code. This case dealt with the balancing of the “right of society to protect its citizens against destructive and humiliating public communications,” against “the democratic right of freedom of expression.”[7] In Keegstra, the Supreme Court of Canada had “emphasized that the offence is one of wilful promotion of hatred, not holding or expressing outrageous, offensive or unpopular opinions.”[8] The majority of the Court found that section 319(2) did violate section 2(b) of the Charter of Rights and Freedoms,[9] but that this was a reasonable limit prescribed by law, “only if the section was strictly limited by a very narrow definition of intent.”[10]

As with all other criminal cases, in Ahenakew the Crown has the onus to prove each element beyond a reasonable doubt. In this case, the Crown’s duty was to establish that:
  1. The accused communicated statements;[11]
  2. The statements were not made in private conversation;[12]
  3. The accused intended, in making those statements, to promote hatred, or
  4. The accused had knowledge that making the statements created a substantial certainty that hatred would be promoted;
  5. The hatred promoted was of the most severe and deeply-felt form of opprobrium;[13]
  6. The hatred promoted was against an identifiable group, in this case, people of the Jewish faith.[14]
Justice Tucker did not believe Ahenakew intended to “promote hatred of Jewish people,” so he did not meet the threshold for conviction.[15] Seven questions into the interview with Parker, Ahenakew made the following statement: “well, I’m not going to argue with you about the Jews,” which strongly suggested Ahenakew had no intent to publicize his views against Jewish people and promote hatred.[16] Judge Tucker came to a similar conclusion when looking at the words uttered in the speech itself, finding that “the purpose of the accused was to influence the audience and First Nations leadership regarding the proper course of action to take on the consent form issue, and not to promote hatred against the Jewish people.”[17] Nevertheless, Tucker had absolutely no sympathy for Akenakew, and went so far as to declare that the statements “he made about Jewish people were revolting, disgusting and untrue.”[18]

The Criminal Code is not the only arbiter of legal speech in Canada: human rights commissions also deal with cases of this nature. Some will find comfort in knowing that not all opinions and comments can potentially result in a criminal charge, although if Ahenakew had published his views of Jewish people, rather than express them verbally, the Saskatchewan Human Rights Commission would have convicted him quickly.[19] Whether or not the public agrees with Justice Tucker’s decision, Ahenakew’s comments have already come at a personal cost to him: Ahenakew’s award of the Order of Canada, the country’s highest civilian honour, was revoked because of his comments.[20]

 

[1] Revolting, but no Crime, The Toronto Star (25 February 2009).
[2] Reuters Canada, “Canada Native Leader Cleared in Second Hate Trial” (23 February 2009).
[3] R. v. Ahenakew, 2009 SKPC 10 at para. 7.
[4] Ibid.
[5] R.S.C. 1985, c. C-46.
[7] Supra note 3 at para. 6.
[8] Ibid.
[9] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 .
[10] Supra note 3 at para. 17.
[11] It is obvious in this case that the accused was communicating statements (Ibid. at para. 21).
[12] The analysis here was divided into two parts: both the speech and the interview were found to be public conversations. There was a great deal of evidence in regards to whether the reporter Parker openly displayed his tape recorder, and the court found that he did (Ibid. at para. 22).
[13] The comments were quite emotional, and would result in a “feeling of antipathy amounting to hatred in at least some of the recipients” (Ibid. at para. 23).
[14] The court found that Jewish people are an identifiable group, that the Jewish faith is quite different from the Christian faith (Ibid. at paras. 24 and 19).
[15] Supra note 1.
[16] Supra note 3 at para. 28.
[17] Ibid. at para. 37.
[18] Ibid. at para. 43.
[19] Nigel Hannaford, Ahenakew Outrageous, Disgraceful, but not Illegal The Calgary Herald (24 February 2009).
[20] Supra note 1.


“1984” in 2009: R. v. Wilson

In the recent case of R. v. Wilson, the Ontario Superior Court of Justice held that a person’s account information linked to an internet provider’s address (IP address) was not subject to the reasonable expectation of privacy; therefore, police do not require a warrant to gain this information, and there is no violation of section 8 of the Charter of Rights and Freedoms if IP addresses are collected by police. Section 8 of the Charter states that “everyone has a right to be secure against unreasonable search and seizure.”[1]

The case concerned an application to rule out evidence that the applicant argued had been acquired by an unreasonable search and seizure. While conducting a routine search of the Internet, a police officer came across child pornography in an open forum. Using techniques available to anyone on the Internet, the officer proceeded to obtain the IP address connected with the online child pornography in question.[2] The officer then made an application to Bell Canada, using a standard form in which the officer applied for the name and address belonging to the IP account holder.[3] Bell then relayed the information requested to the officer conducting the investigation.[4] After receiving the name and address of the account holder, who in this case was the applicant’s wife, the officer then obtained a search warrant for the household and proceeded to discover data archives of child porn.[5]

The sole issue before the court in this case was “whether the police are required to obtain a warrant before requesting a subscriber’s name and address from an Internet service provider.”[6] The court relied in part on the Supreme Court of Canada (SCC) decision in R. v. Edwards, where the SCC outlined a number of points to consider in assessing a section 8 Charter violation.[7] The most important question in this case was whether the accused had a reasonable expectation to privacy. The Ontario Superior Court found that in order for the accused to assert an expectation of privacy, the information must be of a biographical nature.[8] In the Ontario Wilson case, the court held that Bell giving out an account holder’s name and address (associated with an IP address) was not significantly different from publication of a name and address in a phone book.

In the Ontario court’s rejection of the application for the exclusion of evidence gathered as a result of the IP-linked information, it made a hotly contested judgment that IP addresses were not “biographical” in nature; therefore, police do not require a search warrant to attain that information. But as many critics have pointed out, an IP address can be used to trace an individual’s entire online history.[9] By allowing an IP address to be linked to an individuals name, it effectively allows for the construction of an electronic biography that can be revealing and potentially damaging.

 In arriving at the conclusion that Mr. Wilson could not have reasonably expected his information to remain private, the court relied in part on the contract his wife had signed with Bell. The contract stated that Bell was allowed to “disclose personal information without the knowledge or consent of the subscriber.”[10] This raises the further issue of whether Charter rights can be contracted away by a third-party.

Currently, Canadian legislation such as the Personal Information Protection and Electronic Documents Act(PIPEDA)[11] allows Internet providers to release customers’ names and addresses without a search warrant.[12] It is worth comparing the United Kingdom (U.K.) experience, in which full electronic citizenry surveillance is common. Building upon a government initiative started a decade ago to establish closed circuit t.v. monitors (CCTV) in public spaces, the U.K. government has recently expanded the practice by making access to private CCTVs a precondition for business licenses is some cases.[13] Today there are more than 4.2 million CCTV’s in the U.K., monitoring almost every aspect of its citizens’ daily activities.[14]

 

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (CanLII).
[2] R. v. Wilson (10 February 2009), St. Thomas 4191/08 (ON Sup. Ct.) at para. 4, online: Canadian Privacy Law Blog .
[3] Ibid. at para. 5.
[4] Ibid. at para. 7.
[5] Ibid. at para. 8.
[6] Ibid. at para. 1.
[7] R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45 (CanLii).
[8] Supra note 2 at para. 16.
[9] Shannon Kari, “Where you’ve been on Net not private, judge rules” National Post (13 Feb 2009).
[10] Supra note 2 at para. 35.
[11]S.C. 2000, c.5.
[12] Ibid. at para. 39.
[13] Canadian Privacy Law Blog, “UK pub required to install CCTV to get police approval for liquor license” (10 February 2009).
[14] Richard Tyler, “UK is CCTV Capital” ukwatch.net (6 December 2006).


SCC to Decide on the Defence of Responsible Journalism

On February 17th, the Supreme Court of Canada heard the case Douglas Quan, et al. v. Danno Cusson, in which an Ontario police officer, Cusson, went to New York City to participate in search and rescue operations immediately following September 11, 2001.  The Ottawa Citizen published three articles about his actions, which Cusson claimed were defamatory. At trial, one of the articles was found to be protected by the defence of qualified privilege, but Cusson was awarded $125,000 in general damages for the other two articles. The Ontario Court of Appeal upheld the trial judge’s ruling and also recognized the defence of responsible journalism as part of Ontario law, even though the defence was not available in the circumstances of the particular case in question.[1]

Responsible journalism allows journalists to escape liability for defamation actions by showing that they took “reasonable steps” to verify the accuracy of their stories, as long as those stories were a matter of public interest. The defence was first enunciated by the United Kingdom’s House of Lords in Reynolds v. Times Newspapers Ltd.,[2]  and was further explained in Jameel v. Wall Street Journal Europe Sprl.[3] The Supreme Court of Canada had an opportunity to recognize this defense in WIC Radio Ltd. v. Simpson; however, the Court left the issue for a future appeal.[4]

While the Canadian Charter of Rights and Freedoms [5] does not directly apply to common law, the Supreme Court of Canada has held that common law defamation is subject to Charter values and should be interpreted and applied in accordance with them.[6] The Ontario Court of Appeal held that the defence of responsible journalism better balances the competing values of freedom of expression and protection of individual reputation, and therefore brings common law defamation in line with underlying Charter values.

The Ontario court concluded that the threat of litigation under a legal regime that leaves no margin for error, even where the speaker took all reasonable steps to verify the facts, discourages free and open debate on matters of public importance.[7] And, while it is true that adopting this defence shifts the focus of defamation law away from the truth, and towards the conduct of the defendant, the court held this to be an “acceptable price to pay for free and open discussion.”[8] The defence was described as a “sensible half-way house between the two extremes of the traditional common law no-fault liability on the one hand, and the traditional qualified privilege requirement for proof of malice on the other.”[9]

[1] Cusson v. Quan, 2007 ONCA 771 (CanLII). <http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onca/doc/2007/2007on
ca771/2007onca771.html>
[2] Reynolds v. Times Newspapers Ltd., [1999] UKHL 45 (BAILII). <http://www.bailii.org/uk/cases/UKHL/1999/45.html>
[3] Jameel v. Wall Street Journal Europe Sprl., [2006] UKHL 44 (BAILII). <http://www.bailii.org/uk/cases/UKHL/2006/44.html>
[4] WIC Radio Ltd. v. Simpson, 2008 SCC 40 at para. 19 (CanLII). <http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/2008/2008
scc40/2008scc40.html>
[5] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (CanLII). <http://www.canlii.org/en/ca/const/const1982.html#I>
[6] Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at paras. 139-141 (CanLII). <http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1995/1995
canlii59/1995canlii59.html>
[7] Supra, note 1 at para 128.
[8] Ibid, at para. 142.
[9] Supra, note 1 at para. 139.



New Chief Commissioner of the Alberta Human Rights and Citizenship Commission

Lindsay Blackett, Minister of Culture and Community Spirit, has announced that, after 14 years of service on the Alberta Human Rights and Citizenship Commission, Charlach Mackintosh will step down as Chief Commissioner. He will be replaced by David Blair Mason, a retired judge from Calgary. Mason plans to make it a priority to add sexual orientation to the grounds of discrimination prohibited by Alberta’s human rights legislation.[1]
Blackett has indicated that the Sheldon Chumir Foundation’s recommendations[2] for reform of the Alberta human rights regime will be part of the government's review of the Alberta human rights commission. The foundation’s recommendations include increasing the profile of the human rights commission and bettering its reputation, and improving Albertans’ access to the commission by making legal assistance available to those involved in human rights disputes, both to those making complaints and to those accused of violating human rights law. The Sheldon Chumir Foundation also recommends that the Chief Commissioner report directly to Alberta legislative assembly and that it add “Aboriginal heritage” as a prohibited ground of discrimination under the legislation.
Further Reading:
[1] Thaddeus M. Baklinski, “New Alberta Human Rights Chief Commissioner to Work to Add ‘Sexual Orientation’ to Legislation” (6 February 2009), online: LifeSiteNews.com <http://www.lifesitenews.com/ldn/2009/feb/09020606.html>.


Métis Nation of Alberta File Notice of Constitutional Question Too Late for Consideration by Energy Resources Conservation Board

On June 13, 2008, the Energy and Resources Conservation Board (ERCB) was given Notice of a Constitutional Question filed by the Métis Nation of Alberta (“MNA”).[1] The question was raised pursuant to Section 12 of the Administrative Procedures and Jurisdiction Act (“APJA”)[2] and was stated in the following terms:

Has the Crown discharged its duty to consult the MNA with respect to potential infringements of Aboriginal rights protected under section 35(1) of the Constitution Act, 1982[3] which may arise if Application No. 1490956 to the ERCB is granted approval for construction and operation of the proposed Fort Hills Sturgeon Upgrader and associated infrastructure in Sturgeon County?

Alberta Justice advised the ERCB that it would be challenging the Board’s jurisdiction to consider the constitutional question provided by the MNA at the public hearing in June of 2008. Alberta Justice argued that the Board’s jurisdiction over the matter was ousted when the MNA failed to comply with the 14-day notice requirements provided in the APJA. The MNA argued that the Board was not being asked to make a determination on Aboriginal rights or on whether a constitutional “duty to consult” exists. Rather, the group wished to defer proceedings on the proposal by Petro-Canada Oil Sands Inc. (PCOSI) until appropriate consultation could be engaged in and their status as interveners determined. The MNA asserted that the notice provisions within the APJA are discretionary when the question does not challenge the constitutional validity of legislation.

 

In order to support its assertion that notice requirements may be waived, the MNA referred to case law dealing with the notice provisions in the Judicature Act.[4] Alberta Justice rebutted the evidence presented by the MNA by stating that the requirements in the APJA are broader than the provisions in the Judicature Act.Section 10(d) of the APJA states that, “Notice of Constitutional Question means ‘any determination of any right under the Constitution of Canada or the Alberta Bill of Rights.’” Alberta Justice also found this language to be mandatory rather than discretionary in nature.

 

The company making the application, PCOSI, agreed that the Board lacked jurisdiction. The company did not, however, wish to bar the participation of the MNA in proceedings altogether. PCOSI welcomed the MNA’s presence, as long as it did not raise questions of constitutional law.

 

The MNA also argued that some of its members would be entitled to participate in the proceeding because they were landowners living near the project. The MNA suggested that section 7 of the Charter of Rights and Freedoms[5] would be implicated in some of their claims. The Board noted that not enough information was provided explaining which rights would be asserted and how the members would be affected. Standing, the Board ruled, could not be determined on the basis of such limited information.

 

The Board found that it did not have jurisdiction because the MNA failed to administer proper notice. It did, however, allow the MNA to participate as a “discretionary participant” and to make a short submission following the arguments made by PCOSI and the registered interveners.

 

[1] Energy Resources Conservation Board, “Petro-Canada Oil Sands Inc. Application to Construct and Operate an Oil Sands Upgrader in Sturgeon County” (January 20, 2009), online.
[2] R.S.A. 2000, c. A-3.
[4] R.S.A. 2000, c. J-2.
[5] Supra note 3.


Kwikwetlem First Nation v. British Columbia (Utilities Commission)

The recent case of Kwikwetlem First Nation v. British Columbia (Utilities Commission) raises the issue of the duty to consult Aboriginal peoples before undertaking projects that may affect their rights or title. The case was an appeal to the British Columbia Court of Appeal on behalf of Kwikwetlam First Nation, Nlaka’pamux Nation, and the Okanagan Nation.[1]

Because of the growth in Vancouver’s lower mainland population, BC Hydro, along with the British Columbia Transmission Corporation (BCTC), underwent a consultation process to decide how best to meet the growing energy needs of their customers.[2] After considering a number of options, BCTC decided that it was the most cost-effective option to build a new transmission line from Merritt to Coquitlam, a project dubbed ILM.[3] However, before construction on the new line could begin they had to obtain two permits: one from the Environmental Assessment Office (EAO) and one from the British Columbia Utilities Commission.[4] Both of these are Crown agencies charged with enforcing government regulations, regulations that in this case required consultation with First Nations if it is deemed that their rights might be affected by Crown corporations.

Aboriginal and treaty rights are “recognized and affirmed” in section 35 of the Constitution Act, 1982;[5] under this section, the Supreme Court of Canada has found that the Crown has a duty to consult First Nations before infringing on their rights or title.[6] The question before the appeals court in this case was whether or not a duty to consult arose, and if so, which of these Crown agencies was required to discharge the onus of the duty to consult. BC Hydro and BCTC argued that the decision should be left to the EAO whereas the appellants, led by the Kwikwetlam First Nation, argued that the onus must is on the British Columbia Utilities Commission because it is a quasi-judicial board that has the proper power and regulatory authority to uphold the honour of the Crown.[7] It was argued that the EAO had been deprived of much of its regulatory power and was primarily concerned with the narrow issue of environmental protection.[8] The utilities commission took the stance that either of the two Crown agencies could fulfill the duty to consult. It then issued a certificate of public convenience and necessity (CPCN) over the objections of the First Nations and placed the duty to consult with the lesser qualified EAO.[9]

The B.C. Court of Appeal found that the Commission had to consider whether the Crown had a constitutional duty to consult with regard to the ILM project, and if so, to determine the scope of that duty, and whether it was fulfilled.[10] The court held that the utilities commission had erred in law when it failed to consider the First Nations challenge to the consultation process.[11] As a result, the court ordered the suspension of the CPCN that would have allowed the project to proceed, and ordered the utilities commission to reconsider the concerns of the affected First Nations before the suspension would be nullified.[12]

The decision of the court in this case helped clarify the Crown’s duty to consult. After finding that the proposed power line project had the potential to “profoundly affect the appellants’ Aboriginal interests,” the court said that “consultation requires an interactive process with efforts by both the Crown actor and the potentially affected first Nations… [and] it may require the Crown to make changes to its proposed actions.”[13] Justice Huddart went on to add that “if consultation is to be meaningful, it must take place when the project is being defined until the project is completed.”[14]

The power line constructed through the appellants’ lands some decades earlier had been built without any consultation to the detriment of the affected First Nations.[15] This decision shows how Aboriginal rights have been strengthened by the courts in the past two decades.

 

[2] Ibid. at para. 2.
[3] Ibid. at para. 2.
[4] Ibid. at para. 19.
[5] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11.
[6] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII);Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 (CanLII).
[7] Supra note 1 at paras. 8, 20 and 23.
[8] Supra note 1 at para. 44.
[9] Ibid.
[10] Ibid. at para 13.
[11] Ibid. at para. 14.
[12] Ibid. at para. 15.
[13] Ibid. at paras. 67-68.
[14] Ibid. at para. 70.
[15] Ibid. at para. 67.


R. v. White Appeal

On January 29th, the Supreme Court of Canada granted leave to appeal an Alberta Court of Appeal decision that upheld a mandatory publication ban in bail proceedings.[1]

Michael White, an Edmontonian charged with the second-degree murder of his wife, applied for and received a publication ban under section 517 of Canada’s Criminal Code.[2] This section provides for a mandatory publication ban on bail proceedings upon the request of an accused. Several media outlets brought an application challenging the constitutionality of section 517, arguing the section unjustifiably violated their freedom of expression as guaranteed by section 2(b) of the Charter of Rights and Freedoms.[3]

The Court of Queen’s Bench held that the mandatory ban unjustifiably violated the Charter and ordered section 517 to be read as if it opened with the words "Where a jury trial is possible."  The court also ordered the words "and shall on application of the accused" be struck out, but it deferred this aspect of the order for one year to allow Parliament to address the issue.[4]  The court concluded there to be no rational connection between the infringement on the media’s freedom of expression and the objective of protecting an accused’s right to a fair trial by an impartial jury.[5]  The court also held the Crown failed to show both that the mandatory publication ban was the least intrusive means available to meet the legislature’s objective, and that the salutary effects of the ban were proportionate to its deleterious effects.[6]

Michael White appealed the decision to the Alberta Court of Appeal. That court unanimously held the infringement of section 2(b) of the Charter was justified under section 1 and set aside the Queen’s Bench decision.[7]  The court determined that a rational connection between the challenged provision and the legislative objective was present, and the impairment of section 2(b) was minimal, because section 517 was not a “publication ban,” but merely a “publication deferral” until after the trial was complete.[8]  The court also held the benefits of restricting publication outweighed the negative effects of the restriction on expression in this context, because a fair trial and fair access to bail were also Charter rights.[9]

Resources:

Section 517 of the Criminal Code reads:

517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

  1. if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
  2. if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Further Reading:

Chris Younker, “Freedom vs. Privacy” (18 February 2009) online: Centre for Constitutional Studies.

[1] R. v. White, SCC Case Information.
[2] Criminal Code of Canada, R.S.C. 1985, c. C-46 (CanLII).
[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 (CanLII).
[4] Ibid. at paras. 113, 129.
[5] R. v. White, 2007 ABQB 359 at para. 82 (CanLII).
[6] Ibid. at paras. 83, 102.
[7] R. v. White, 2008 ABCA 294 at para. 58 (CanLII).
[8] Ibid. at paras. 42, 46.
[9] Ibid. at para. 57.