Watch your mouth!

Unless you have been living under a rock, you’ve seen a young male wear a t-shirt with an inappropriate or adult-themed expression or joke written on it.

 

If you are prude, you probably wondered, “How is that person allowed to wear that, legally?”

Or maybe you are like me and thought, “That t-shirt is inappropriate, but it shouldn’t be illegal.”

Or maybe you just wondered, “How far can we go in our ‘freedom of expression’?” Well, if you thought this, you’re in luck: that is the topic of this week’s column.

Section 2(b) of the Charter allows for freedom of expression. But, what’s an “expression”? Well, for clarity, an expression is any means of communication that has content and expresses a meaning.

I hope that you don’t think there should be a bunch of limits on what we can say. That would be stupid (and very un-Canadian).

Thankfully, we are allowed to say and express ourselves however we want! It’s a Canadian value that we should be very proud of (and we should work hard to preserve). We can say or write anything! (…almost).

Obviously, there are limits… So, what are those limits?

Well, this part of the law is technical and complicated. Reason: we have to be careful with limiting our freedom of expression. It’s a slippery slope to take away someone’s right to express themselves.

But, without getting too technical, here is the basic law: expressions that are not allowed (i.e. against the law) are those that are really obscene or promote hatred or are threatening to someone. Here are a few examples…

Consider this case: R. v. Keegstra, [1990] 3 SCR 697. In this case, Mr. Keegstra was an Alberta high school social studies teacher. He was an idiot. He taught his students that Jews are “treacherous”, “sadistic”, “money-loving”, and “child killers”. He said a pile of other stupid things, too. Thankfully, he was charged with the Criminal Code offence of promoting hatred against a group of people (see section 319(2)).

In the case, Mr. Keegstra argued that he was allowed to make these statements because he had ‘freedom of expression’. That argument failed and Mr. Keegstra was criminally convicted of promoting hatred.

It is also illegal to make threatening comments to someone. This is referred to as ‘uttering threats’. See section 264.1 of the Criminal Code. Basically, this section makes it illegal to tell someone that you are going to hurt them or their property. We’ve all heard these sorts of comments made, whether in a pub or in a school. They are illegal…don’t say them.

Here’s the bottom-line: next time you see a young man wearing a t-shirt with a lame joke written on it, be happy that you live in Canada (and no one is telling him to take it off).

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 19, 2013: Watch your mouth!

Decriminalize drunk driving?!

Last week, I wrote about the new, ‘tough’ impaired driving law. When I described the new law (the Immediate Roadside Prohibition Program), I gave a general description the impaired driving laws in BC. As a result, I went ‘easy’ on it; I didn’t describe this program for what it is… Put bluntly, it is BAD law.

As said last week, the new process/law allows police officers, rather than judges, to dole out the penalties for impaired driving: Drunk Driving Laws and Changes. This is true because the penalties now flow from the ‘fail’ reading on the screening device that is administrated (roadside) by the police officer (rather than the judge who sentences the offender after criminal charges have been laid and after the offender goes to court). I’ll explain…

Under the new law, alleged impaired driving offenders don’t typically go to court, as the new law/process allows police officers to deal with offenders on an expedited basis (on the side of the road).

Remember that, under the ‘old’ process (of dealing with impaired drivers under the Criminal Code), police had to bring the suspected impaired driver to the police station to blow into an approved breathalyser machine. From the results of the breathalyser (readings over 0.08), criminal charges would be laid against the impaired driver.

Keep in mind that the ‘old process’ required police officers to spend A LOT of time on each impaired driving investigation. Alternatively, the new program saves police A LOT of time, as the drunk driver doesn’t have to be taken the station for the breathalyser test (as the screening device is sufficient to penalize the impaired driver).

So, with the new process, less impaired drivers were (not surprisingly) taken to the police station to blow into the approved breathalyser machine and, as a result, less criminal charges were laid. Said a different way, less impaired drivers are dealt with under the Criminal Code or in criminal court.

To some people, this was great: impaired drivers were no longer “clogging” (hate that term) the courts. But, those people (who are rejoicing) might be missing the bigger picture…

Now, last week, I described how the new process doesn’t allow for an effective appeal process, which was the ruling in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639.

Because of that ruling, the B.C. Government made some changes to the law. Those changes still don’t seem to address the issue of an effective appeal process. But, that isn’t the only thing wrong with the new process…

Previously, I referred to the new law as being ‘tough’. Everyone does… This is the common public perception (and it’s the ‘SPIN’ that has been given to it).

But, are they actually ‘tough’? Short answer: no.

When you think of ‘tough’, you likely think about criminal records, thousands of dollars in fines, minimum 12 month driving prohibition and possible jail time. You may be surprised to know that these were the penalties that impaired drivers received after getting a criminal conviction under the ‘old’ process (s. 255 and 259 of the Criminal Code). Under the old process, impaired drivers were also required to submit to (driving) programs and received a 90 day driving prohibition (under provincial law): ADP Fact Sheet.

Under the Criminal Code, there were even minimum jail sentences to subsequent offenders (s. 255): Criminal Code.

So, what are the new ‘tough’ penalties? As said last week, the driver receives an automatic 90 day driving suspension, which is, really, the same as before, under the ‘old process’: IRP Penalties. The impaired drivers are also subject to fines and mandatory programs (under provincial law), which is, for the most part, the same as before (after an impaired driver was convicted in criminal court): IRP Penalty Fact Sheet.

You may be shocked, but consider that under the ‘new’ process, impaired drivers (no matter how drunk they are) can be back on the road after their 90 day prohibition expires! If they aren’t charged criminally (and don’t go to criminal court), there is no criminal record, no potential jail time, and no 12 month mandatory minimum driving prohibition.

As you can see, under the Criminal Code (the previously ‘used’ process), impaired driving was treated as a serious Criminal offence (which it is). Under the new program, impaired driving has been DECRIMINALIZED. I hate to say it, but impaired drivers are being ‘ticketed’ (albeit, with a very harsh ticket). Doesn’t sound too ‘tough’ to me…

Now, you may not agree with me. That is fine. The point of my column isn’t to convince you to ‘side with me’. Rather, it is intended to encourage readers to think about issues and conduct their own research (instead of blindly relying on someone else’s opinion, including my own).

My suggestion: think about and look into the issue. You may be surprised (and outraged) about what you learn.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 26, 2012: Decriminalizing drunk driving.

Drunk driving law and its changes

On June 15, 2012, B.C.’s ‘tough’ impaired driving laws came back (after being revised). But, will they stay? Time will tell.

B.C. has undergone some big changes in the past two years regarding its impaired driving laws. This topic is HUGE and COMPLEX; but, despite that, I will do my best summarize the changes and the resulting issues.

Here’s the story….

Under the previous law/regime, the process of dealing with a drunk driver was generally as follows: a police officer stops a vehicle and, upon having a reasonable suspicion that there is alcohol in the driver’s body, requests that the driver submit to/blow into a roadside screening device, which renders a pass, warn, or fail reading. If the driver blows a ‘fail’, then the driver is taken to the police station and is further submitted to an approved breathalyzer machine that measures the person’s blood-alcohol level.

If the person’s blood alcohol level is over 0.08 (when measured by the approved breathalyzer machine), then documents are forwarded from police to crown prosecutors who decide whether or not to proceed with criminal charges: Police don’t lay charges. If convicted, a judge then penalizes/sentences the drunk driver.

In addition to the likely criminal charges, those drivers who blow readings above 0.08 into the approved breathalyzer machine were also subject to a 90 day administrative driving prohibition (under provincial law): ADP Fact Sheet.

Under the ‘tough’ new law, which came in on September 20, 2010, the process was different. It was, put very simply, as follows: the police officer stops a vehicle and, upon having a reasonable suspicion that there is alcohol in the driver’s body, requests that the driver submit to/blow into a screening device. If the driver blows a ‘fail’ on the screening device, the driver receives an automatic 90 day driving suspension and is then subject to monetary penalties and mandatory programs, such as a responsible driving program and an ignition interlock device (to be installed into the person’s vehicle). The penalties/programs could cost the suspended driver over $4,000.00.

To clarify, under that new law, the stiff penalties flowed from the ‘fail’ reading on a screening device that was issued by the officer (and did not flow from a judge).

It was my understanding, too, that less criminal charges were being laid on drunk drivers (in court); instead, they were being dealt roadside by police under this new system. Of course, this was a faster way of dealing with drunk drivers.

Also, the process to challenge/review the ‘fail’ reading was quite minimal (and insufficient). This was significant.

On November 30, 2011, in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639. Mr. Justice Sigurdson ruled that the new law unreasonably infringes section 8 of the Charter, specifically for those people who blew a ‘fail’. Put simply, the Court said that, based on the significant penalties, the B.C. Government should have created a reasonable and meaningful review process where a driver can challenge the results of the screening device (after blowing a ‘fail’). As it stood, the law needed to be changed.

The B.C. Government chose not to appeal the decision and, instead, chose to amend the law. In the meantime, the ‘tough’ impaired driving law was suspended.

After the decision, the B.C. Justice Minister, Shirley Bond, said that only minor changes were needed to fix the law. She was seemingly correct because, based on Mr. Justice Sigurdson’s decision, you’d expect the B.C. Government to do one of three things: lower the penalties, change the review/appeal process, or do both.

According to peppered media reports, on June 15, 2012, the ‘tough’ impaired driving laws came back (after some revision). The revisions are: 1) police now have to tell drivers that they are entitled to a second blow test; 2) police must now ‘swear’ their reports that they submit; and 3) police must now submit documents confirming the accuracy of the screening devices: Drunk driving laws return after tweaking.

Police are already applying the amended law: Traffic police catch drunk driver 18 minutes after new drinking and driving law came into effect.

Justice Minister Shirley Bond says the changes go beyond what the Court was asking for.

But, do you really think they do?

I hate to sound cynical, but I don’t think the issues were adequately addressed. For one, people are seemingly still denied a full (or adequate) hearing. On that issue, I would have expected the B.C. Government to do more in creating a meaningful review process, such as allowing for police officers to be cross-examined on their evidence, rather than simply submitting ‘sworn’ documents.

Now, don’t get me wrong: lowering (or better yet, eliminating) drunk drivers on the road is an incredibly important and laudable goal. Drinking and driving is beyond stupid. But, Charter rights (and the related fair process) need to be respected as these Charter rights separate Canada from less ‘desirable’ countries.

These changes might be adequate and pass Charter scrutiny. Or they might not. Time will tell.

Whatever happens, I hope that the B.C. Government (regardless of political affiliation) starts taking its time with drafting legislation.

Bad laws waste time and money and both are a scarcity.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 19, 2012: Drunk driving laws changes.

Charter’s birth from Canada’s awful history

Canada has an awful history of discrimination. And, in response to that discrimination, the Canadian Charter of Rights and Freedoms was created. Few people know about the Charter and its beginnings; so, it is the topic of this week’s column.

To start, the Charter is a bill of rights, entrenched in the Constitution of Canada. It guarantees certain fundamental rights to all citizens. It was preceded by various other laws, including the Canadian Bill of Rights, a federal statute that could be amended by Parliament. The Charter, on the other hand, is a constitutional document and cannot be easily changed by government.

The Charter’s birth resulted from Canada’s lengthy history of discriminatory laws and policies. For instance, there were laws prohibiting Chinese workers from working in coal minds, intended to protect local workers from losing their jobs to foreigners. There were also laws prohibiting various groups of people, including Chinese and Aboriginal populations, from voting in federal and/or provincial elections. There were also numerous discriminatory actions taken during World War II, such as the Japanese internment camps.

In response to the discriminatory laws, several people worked together to discuss a change. These people are the founders of the Charter.

So, who were these people? Well, there were many, so I can only name a few. The most recognizable name is Pierre Trudeau, the Prime Minister at the time of the Charter’s enactment. Other notables include 1) Bora Laskin, who became the Chief Justice of the Supreme Court of Canada; 2) Mark McMuigan, who became the Minister of Justice; and 3) Walter Tarnopolsky, who became a justice on the Ontario Court of Appeal.

In 1982, the Charter was enacted under the federal Liberal government.

Under the Charter, several categories of rights and liberties are enshrined, including the following:

1) Political civil liberties: These liberties are also known as fundamental freedoms and include freedom of religion, freedom of press, freedom of speech, and freedom of assembly.

2) Legal civil liberties: These liberties have to do with the protections given to people who come into contact with the criminal justice system. They include the right to be free from police abuse, unreasonable search and seizure, unjust imprisonment, and cruel and unusual punishment.

3) Egalitarian civil liberties: These liberties have to do with the freedom from discrimination, such as race, disability, sex, age, or national origin.

For your information, economic rights are missing from the Charter, but are enshrined in America. So, why didn’t the Canadian government include economic rights in the Charter? Well, there are two general reasons: one political and one legal.

Politically, the federal government wanted the Charter to actually pass and, in order to get the support of the federal NDP, the government had to ‘take out’ economic rights. The federal NDP didn’t think that property/economic rights should have the same status as the other fundamental rights.

Legally, Canada wanted to avoid the flood of litigation that occurred in America with the enshrinement of economic/property rights. To explain, the US Constitution allows for just compensation when there is a deprivation of the ‘enjoyment of property’, which includes down-zoning and expropriation (government taking/confiscating private property). In America, a lot of litigation resulted from this issue.

We are lucky to have the Charter to protect us against abusive/discriminatory government practices. With that said, it should be remembered that our elected officials are still capable of creating Charter-infringing legislation, such as the recent B.C. drunk driving legislation.

If the government creates bad law, do not hesitate to complain to your politicians.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on February 28, 2012: Charter from Canada’s awful history.