Archive for July, 2009
The Youth known as M.T., who can now be identified as Melissa Todorovic, was sentenced to life in prison yesterday for her role in the callous murder of 14 year old Stefanie Rengel. The case was noteworthy for the instant messages introduced into evidence which demonstrated Todorovic’s complicity in directing her boyfriend to commit the offence.
The Youth Criminal Justice Act provides that an adult sentence may be imposed on a young offender if the Court is of the opinion that a Youth sentence would not be of sufficient length to “hold the young person accountable for his or her offending behaviour.” As the Act operates on the premise that young persons do not bear the same degree of responsibility as adults, the imposition of an adult sentence is very much the exception rather than the rule. This however was a particularly shocking offence, and the offender showed little remorse.
Faced with these circumstances, Mr. Justice Ian Nordheimer, an outstanding and careful judge, determined that an adult sentence was necessary for the protection of the public. In sentencing Todorovic, he said:
“I do not accept that Melissa has a reduced responsibility for this terrible act. A person who plans and orchestrates and directs another person to take the life of a human being is at least as morally culpable as the person who does the actual act. Put simply, the puppet master is not less blameworthy than the puppet. Indeed, I would suggest that the master is more culpable since he or she puts the wheels in motion and then stands back under a facade of disassociation while the scheme that they have created unfolds.”
The tragic death of Michael Jackson raises the question whether his physician Conrad Murray can be found criminally liable for Jackson’s death. It has been reported that, in interviews with the police, Dr. Murray has admitted to administering the drug Propofol to Jackson on the day of his death. Propofol is a powerful anaesthetic for use in a hospital setting. It is administered by way of an IV drip, and oxygen must be close at hand as the drug can depress breathing and lower the patient’s heart rate. It was given to Jackson at his home in order to help him sleep. In a carefully worded statement, Murray’s lawyer has said that his client did not administer anything to Jackson which “should have caused” Jackson’s death.
Liability for criminal conduct requires an intent to cause harm. No one would seriously argue that Jackson’s physician intended for his patient to pass away. The issue is the degree to which gross negligence or recklessness, if proven, rise to the necessary level to fix responsibility on Dr. Murray for Jackson’s death under the criminal law. This is not a simple question. Section 219(1) of the Criminal Code provides that “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” Section 222(5) states that “A person commits culpable homicide when he causes the death of a human being (a) by means of an unlawful act, (b) by criminal negligence.”
Dr. Murray is reportedly under investigation for manslaughter. If it can be shown that administration of the Propofol was so outside the realm of responsible medical practice, and had the effect of causing Michael Jackson’s death, Dr. Murray might be facing very serious consequences.
On July 17, 2009, the Supreme Court of Canada released four decisions on the important question of the circumstances in which evidence obtained by the police in a manner contrary to the Charter of Rights should be excluded from consideration at trial. Section 24(2) of the Charter states “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
The stakes involved could not be higher. On the one hand, the exclusion of evidence can result in the collapse of serious criminal cases. On the other hand, the rights guaranteed under the Charter must be enforced if they are to have meaning. It is left to the judgment of our Courts to strike the proper balance in individual cases.
The starting point is the language of section 24(2). It mandates the exclusion of evidence if, having regard to all the circumstances, the admission of it would bring the administration of justice into disrepute. In trying to give meaning to this broad and general language, the Supreme Court of Canada explained the purpose of section of 24(2) and the factors that judges must consider in deciding whether to exclude evidence obtained in violation of Charter rights:
“The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.
The phrase “bring the administration of justice into disrepute” must be understood in the long term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.”
Section 11(b) of the Charter of Rights and Freedoms guarantees to any person charged with an offence the right “to be tried within a reasonable time.” What is reasonable is left to the Courts to decide in the circumstances of individual cases. There are guidelines. The Supreme Court of Canada has said that, for less serious cases tried in Provincial Courts, a time period of 8-10 months from arrest to trial is a reasonable time. For more serious cases where there is a preliminary hearing and trial in the Superior Court, an additional 6-8 months is reasonable. The Courts have been careful to point out however that delays beyond these guidelines do not, on their own, give rise to a violation of section 11(b). Each case must be looked at on its own facts, having regard to the length of the delay, whether any time periods have been waived and prejudice to the accused. The Courts have also stressed that there is a societal interest in having serious charges heard on their merits. In short, deciding whether the delay is unreasonable in a given case is a delicate exercise.
In its June 2009 decision in R. v. Godin, 2009 SCC 26, the Supreme Court of Canada reinstated a stay of proceedings where a charge of sexual assault had taken 30 months to get to trial and where the Crown had failed to provide an adequate explanation for the delay. The Court disagreed with the decision of the Ontario Court of Appeal that the accused had waived part of the delay by not being available for a date proposed for a preliminary hearing. The Court made the following important statements in that regard:
“Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.”
“To hold that the delay clock stops as soon as a single available date is offered to the defence and is not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”
For some three weeks, public sector employees of the City of Toronto have been engaged in a lawful strike. The absence of garbage removal has understandably received the most attention. City workers have picketed at the entrance of transfer stations, at times interfering with access to those dump sites. This raises the question as to the rights of the parties in these circumstances.
There is no doubt that picketing is an important right, consistent with the fundamental freedoms of peaceful assembly and association set out in section 2 of the Charter of Rights and Freedoms. Where private parties are involved, section 102 of the Courts of Justice Act requires that reasonable efforts to obtain police assistance to prevent damage to property, personal injury or interference with lawful entry or exit from premises have been unsuccessful before an injunction to prevent the picketing can be obtained. These provisions represent a careful balancing of the rights of the parties in these highly charged and emotional situations: a recognition of the importance of picketing and an acknowledgment that, where the activity transcends lawful bounds, police action and if necessary Court intervention can be called upon. In a leading decision in this area, the Court of Appeal for Ontario made the following important statements:
“Strikes and the picket lines that go with them are evolving human dramas where risks of property damage, personal injury or obstruction of lawful entry are best controlled by flexible and even handed policing. Only where this fails should the court, with its blunt instrument of the injunction, be resorted to.”
“The number of picketers is an important expression of solidarity in the taking of collective job action. Pending police assistance, there may well be some inconveniencing or impeding of those seeking to pass trough the picket line. The police response to requests for assistance will not always be immediate given their other policing responsibilities. The first failure of the police to respond instantaneously to a request for help does not necessitate the conclusion that police assistance has failed and that therefore the court can be resorted to. Absent questions of property damage or personal injury, a robust society can accommodate some inconvenience as a corollary of the right to picket in a labour dispute before the court will conclude that police assistance has failed, and that it has jurisdiction to intervene with injunctive relief.”
It is not uncommon for Union members to feel aggrieved with the conduct of their Union. This can be especially true when a grievance stemming from a termination of employment is settled or withdrawn by the Union over the objection of the employee. Collective agreements almost invariably provide that the Union has the exclusive right to deal with the employer in employment related matters. In some cases, the Union might consider that a grievance has insufficient merit or is contrary to the interests of the membership, and the grievance would therefore be withdrawn or settled. The question becomes: what recourse does a Union member have in such cases?
Section 74 of the Ontario Labour Relations Act provides that a Union “shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit.” The wording of the section is significant. Unlike professionals such as doctors, lawyers, accountants, engineers and others, who are held to a standard of care not to act in a manner that is professionally negligent, Unions are protected from liability so long as they act in good faith. Decisions of the Labour Relations Board have commented on this duty in the context of termination grievances. In a case that I was involved in, Lenahan v. Canadian Auto Workers Local 222,  O.L.R.B. Rep. 591, the Vice-Chair of the Board stated:
“The Board’s test for determining whether a trade union has violated its duty of fair representation is well established. The trade union can make mistakes. It is not the role of the Board to second guess the trade union. However, as was stated in Sharon Parker,  O.L.R.B. Rep. July/August 653, the trade union must provide a persuasive account for its decision not to process the grievance further. In doing so, the trade union must prove that it put sufficient consideration into its decision in accordance with the seriousness and complexity of the matter. A termination grievance is among the most serious of grievances. In providing the Board with a persuasive account of why a grievance relating to termination is not pursued, the trade union must demonstrate that it has carefully considered the matter.”
Claims against Unions can be difficult to win. However, as set out in decisions of the Labour Relations Board, the Union must carefully review a termination grievance before deciding that it is not worthy to proceed through a hearing before an Arbitrator. Given the importance of such matters to the affected employee, that is how it should be.