Here are my three most important legal cases that I think we will be seeing the political and legal ramifications from for years ahead.
The first case is the Supreme Court of Canada decision in Trinity Western University v. Law Society of Upper Canada 2018 SCC 33. This case is important because the court used the concept of “Charter values” to uphold the law society’s decision to deny Trinity Western’s Law school accreditation in Ontario.
I know what Charter rights are. Charter rights are written down in black ink on white paper for everyone to see and read. There is a right to free speech. The right to associate. The right to have a lawyer. These are legal rights that the state can’t take away from you without due process. Even that’s a right. Section 7. I understand what these rights mean even if I am not entirely sure what they are going to look like after the court applies them to any given situation.
Values? Values are what society prefers on any given day; e.g., we used to prefer feudalism. Then our values changed. Do you think the court thinks we can revert to feudal values? I am not a fan of the living tree metaphor for our Charter. All it means is that one day the tree bears cherries but the next you are sucking on lemons.
I fear the court will begin using Charter values to uphold or turn down any constitutional case that does or does not fit with its social justice leanings.
The second is the Ontario Court of Justice criminal case R. v. Lachowski  O.J. No. 5988. A preliminary hearing judge ended the proceeding by committing an accused to trial, in the middle of his lawyer cross-examining the complainant, because the Crown argued that the complainant was being revictimized by the questions even though the judge found nothing improper with them.
This case is more fallout from the rightful acquittal of Jian Ghomeshi. Instead of recognizing that criminal cases are adjudicated on a case-by-case basis, the social justice left have adjudicated that the entire criminal process is not working.
The case also is a product of the #MeToo movement’s demand to believe the complainant.
Complainants have a right to be heard, but they do not have a right to be believed. Do you know who said that? Retired Chief Justice Beverley McLachlin. Her exact words: “No one has the right to a particular verdict but only to a fair trial on the evidence.
I know a Crown I wished had read that quote. Last month, a young, woke female prosecutor called me an antiquated white male because I said the standard of proof for sexual assault cases was beyond a reasonable doubt. It wasn’t the ageism, racism, or sexism of her comment that shocked me but that the prosecution of my client’s case was in the hands of a person who so embodied a wrongful conviction waiting to happen.
The third case is Justice Edward Belobaba’s decision to strike down the law halving Toronto’s city councillors to 27 (Toronto (City) v. Ontario (Attorney General) 2018 ONSC 5151). Premier Ford’s threat to invoke the notwithstanding clause was a shot over the bow of social justice warriors that the concept of parliamentary sovereignty has not been forgotten.
We, lawyers, are too quick to dismiss political decision making as a form of societal consensus making. Canada has benefited from having hot-button issues publicly debated in Parliament, such as abortion, the death penalty and same-sex marriage. These ideas are still hot-button issues in the U.S. because that country has let their judges tell them what is socially acceptable.
So thank you, your honour, for reminding us that Ontario is for the people.
The original article was published at The Lawyer’s Daily and can be seen here.
You would be forgiven if you didn’t know whether our top diplomat in China was speaking on behalf of the Canadian government or the People’s Republic of China when he is reported to have told a state-owned Chinese language media on January 23, 2019 that he thought that Weng Wanzhou, the 46 year-old CFO of Huawei, had a good case to fight her extradition to the U.S.
John McCallum, Canada’s ambassador to China, is quoted to have enumerated his reasons for favouring Weng’s side as: “One, political involvement by comments from Donald Trump in her case. Two, there’s an extraterritorial aspect to her case, and three, there’s the issue of Iran sanctions which are involved in her case, and Canada does not sign on to these Iran sanctions. So I think she has some strong arguments that she can make before a judge.”
Condemnation from Andrew Scheer, leader of the CPC, came quickly accusing McCallum of political interference and stating that if he (Scheer) were prime minister, he would fire him.
It is odd that a politically seasoned man as McCalllum a former Liberal cabinet minister, would so blatantly comment on a legal case presently before the courts. When do you ever see a politician do that? Odd, that is unless you understand that the Chinese have totally mishandled the Weng extradition and McCallum’s comments are a carefully orchestrated attempt by the Liberal government refuse to hand Weng over to the Americans without looking like they are caving into Chinese intimidation.
Canada has had a signed extradition treaty with the U.S. since 1974. Canada’s Extradition Act formally sets out the rules of extradition for all countries with which we have signed extradition agreements. Over the years, the extraditions process has been streamlined to make the process easier so much so that a fugitive has a better chance at winning the lottery than she has at winning her extradition hearing.
But winning the extradition hearing is secondary to the more important next phase of the extradition process. Once the judicial process is over and a court has ordered a fugitive to be extradited, she can appeal the judge’s order of committal to extradite to the federal government to intervene on her behalf.
It’s at the appeal stage that the extradition process becomes purely a political decision. The Extradition Act lays out the grounds that a Minister can refuse to hand a fugitive over; and, guess what? McCallum referred to three of them – whether the crime happened within the territory of the requesting party, whether a request is politically motivated; and, whether Weng’s impugned conduct would be considered illegal under Canadian law.
If Canadians have a shared value, it is surely a knee-jerk distrust of the motivations of the American government. When news first broke about Weng’s arrest, the media were initially skeptical of whether Washington’s alleged dealings with Iran could form the basis in Canada to ask for her extradition. President Trump fueled that suspicion by suggesting that he would use Weng’s extradition as a bargaining chip in trade negotiations with the Chinese. Public opinion was on her side.
But then the Chinese took a page out of the manual on how not to handle international relations and arrested Michael Kovrig, a former Canadian diplomat working in China, and then a second Canadian, Michael Spavor, and then most recently commuting a life sentence to capital punishment for Robert Schellenberg a Canadian convicted of Chinese drug crimes, and any good will the Chinese had with Canadians was out the window.
That is until McCallum made his comments. Perhaps the Liberal government is helping the Chinese by refocusing media attention on what Weng is being extradited for to soften the arguably correct decision that the Americans are using Weng as a pawn in their brinkmanship with China. It also doesn’t hurt that Canadian attitudes about Iran has softened making it all that easier for Trudeau to paint Washington as the bad guy. Do I need to say more about how easy the optics are going to be for Trudeau not to hand her over to American authorities with Donald Trump as president?
If China would only help-out by releasing the Canadians held in their custody Canadians would come around to their side again. If the Chinese did that, if I were Canada, I would utilize the Extradition Act’s power to move the extradition hearing to any location in Canada where it can be heard the fastest so I could send Weng back to China where she likely belongs.
The original article was written on: The Lawyer’s Daily by Sam Goldstein
Do we really need to change the definition of bestiality in Canada? I can’t believe I am writing a column about bestiality but the fact I am writing a column about Parliament’s need to change the definition of bestiality in the Criminal Code is exactly what’s wrong with criminal law today.
In case you live a bestiality-free life and missed it, in 2016 the Supreme Court of Canada acquitted a man of, well, bestiality for having Rover lick peanut butter off a part of his body that peanut butter was not meant for (R v. D.L.W. 2016 SCC 22). For once an eminently reasonable court said that the traditional definition of bestiality is exactly what you are thinking and so no offence had been committed.
That wasn’t good enough for one member of Parliament who created a YouTube video complaining about the psychological harm done to the dog. I am a simple criminal lawyer. I am certainly not a veterinarian nor am I an animal psychologist — I doubt that the MP is any of the above either — but I don’t think my dog cares much from what surface he eats his peanut butter; and it‘s pretty hard to be against a law that is supposed to be about protecting Rover. So, that’s how we ended up with a section in the federal Liberals’ criminal law reforms redefining bestiality as touching for a sexual purpose, just in case there are other Canadian dogs getting abused eating peanut butter.
Why am I so worked up about this? Because don’t you see? Politicians just love telling us how they’re making society safer by criminalizing yet one more human activity that doesn’t accord with their bourgeois values and tinkering with the justice system, adding a boot here and a steaming kettle there, as if it were a Rube Goldberg machine, to solve one problem only to find out that they’ve caused another problem with the quacking duck and falling dominoes.
A Saskatchewan man is acquitted of murder for shooting an Indigenous man and our Minister of Justice Jody Wilson-Raybould declares that the criminal justice system doesn’t work, so the solution is to get rid of peremptory challenges. Jian Ghomeshi is acquitted because his accusers colluded and so the solution is to create a law that requires defendants to turn over what evidence they have that the complainant might be lying because — well, because we can’t trust the complainant to tell the truth to the police that they haven’t been in touch with other witnesses or the defendant since the incident?
There’s gun crime in Toronto, so we have to ban handguns because the fact that we already ban handguns means politicians can’t look like they are doing something to make us safer, so they tell us we must ban handguns.
A person got in an accident while using a cellphone so we penalize that specific activity even though the person displays no actual impertinent driving — which we already penalize. If we must penalize activity while driving in the event that activity might affect a person’s driving, then we ought to penalize driving while eating cereal out of bowl in your lap which I’ve seen several people do on the 401.
I can’t open a newspaper without a columnist or politician telling me how there ought to be a new law against (you fill in the blank with your pet peeve) while, in the same breath, telling me they want to reduce the number of business regulations. Apparently, we’d be all the safer if drug companies could get their products to market faster by reducing the number of test trials, but we’re not going to be able to sleep at night if Rover is getting an illicit peanut butter high.
I’ve always believed that only a fool prefers safety over liberty and to never trust a politician who says he’s there to help you. But what do I know? I’m just a simple criminal lawyer.
The original article from The Lawyers Daily