The Clear Meaning of Words – R v. Calvin Clarke

R v Calvin Clarke  2013  ONCA  7

This appeal was about the application of a statute that came into force after Calvin Clarke committed his crimes, but before the police charged him with those crimes.

In Canada, when you are charged with a criminal  offence and detained in jail for a number of days leading up to your trial you can use those days after your conviction (provide you are convicted) to reduce your sentence by at least the same number of days you have already spent in custody.

Parliament, in 2009, enacted the Truth in Sentencing Act, SC  2009  c  29.  Before this act a judge could lower an accused sentence 2 or 3 fold for every day he had already spent in jail.   Most often, a judge would give an accused “two for one”, meaning the convicted person would get credit for having spent two days credit for every one day he actually spent in jail.   Sometimes, a judge would grant “three for one”, meaning, similarly, the accused person was given a credit of having spent three days in jail for every actual day he spent in jail.  There were other creative multiples given by trial judges to the problem as well, such as giving 1.5 to 1 or 2.5 to 1 days.

The reasons for giving credit of an inflated number of days are no complicated and possibly a little tired: invariably the courts indicated that spending time in jail awaiting your trial is harsher than spending time in jail after you are convicted.  For one thing, you cannot qualify for remedial programs.  The Supreme Court of Canada covers it all in R v Wust 2000 SCC 18.

Parliament, however, changed that with the Truth in Sentencing Act.  Under the Act, the highest credit you can get is 1.5 days for every day actual spent in custody.

In this case, Calvin Clarke plead guilty to break and enter and a number of firearms offences.  The trial judge sentenced him to 10 years in prison.   Since he had already been in jail for 348 days he received a credit of 522 days, or 1.5 days for every day actually spent in prison.  Justice Fergus O’Donnell stated that the fact that he had been beaten while in custody justified giving the maximum credit allowable under the Act.

Clarke, though, appealed on a procedural question.  He argued that, since he had committed the crimes before Parliament enacted the statute, the statute does not apply to him.  This would mean that it was open to the trial judge to give him more credit, two for one or more, perhaps.  Ultimately, he wanted a lower sentence.

While it was true that he committed the crimes before the enactment, it is also true that he was charged by the police after the enactment.   So, did the legislation apply to Calvin’s case?   Laskin J.A. said it does.  Section 5 of the Act states  clearly that the Act applies to everyone charged with an offence after the provisions came into force.  Now, Calvin was charged after the provision came into force.  Does it matter whether he committed the crime before the enactment.  The Truth in Sentencing Act does not address this question?  The court of appeal held that the words in the act have a clear meaning.  They are not capable of  more than one meaning.  The words say the act applies if you are charged after it comes into force.  There’s no ambiguity.

Now, in my view, a compact decision is a good decision.  I like this case for another reason, however – there is an easy dismissal of the sought after word twisting.  My question is why this appeal was argued?  Calvin was charged after the act came into force.  The statute says it applies to anyone who is charged after it came into force?  Yet, the fight for more freedom caused Calvin to attend at the court of appeal and ask the court to find that the statute says something other than what it says.

The development of the common law turns on twisting or shading words.  (Interestingly, the Ontario Court of Appeal recently over-ruled a trial judge because he used the word “would” instead of “could”: R v. Spackman 2012 ONCA 905.  Somewhere along the trail of an education in law there is the gain of a profession to be sure, but it seems to me there is corresponding loss as well: there is the loss of an ability to see the words as they are plainly.   Since the Criminal law gives birth to new distinctions in language every day owing to the serious fighting in court over money and or freedom, I wonder whether it actually has a direction.  My deepest suspicison is that it is all change without design.  Perhaps that is what it is supposed to be.  The fights of court make law, law does not control its fighting?

More to think on than time to think on it.


R. v. Khawaja 2012 SCC 69

The Constitutionality of a Particular Terrorism Offence

The summary of this case is that terrorism offences in the Canadian Criminal Code (see s.83.18) do not violate the Canadian Charter of Rights and Freedoms.  

 The crime found in  s. 83.18 is this:

  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.

The Supreme Court made clear that the offence requires that the conduct of the accused create a risk of harm beyond a mere minimum.  Thus s.83.18 excludes convictions for innocent or socially useful conduct and for conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. 

More telling, the offence requires the accused to have the specific intent to enhance the ability of a terrorist group to carry out or facilitate a terrorist activity.  This may mean, for example, that if you assist terrorists for a valid purpose or do so unwittingly, then you are not guilty of the offence. 

 It was also argued that the wording of the crime violates a person`s freedom of expression.  The Supreme Court said, however, that threats of violence are not protected by the Charter`s freedom of expression. 

Less Detention is More

R  v  Aucoin 2012 SCC 66

A case from the Supreme Court of Canada about being detained by the police.

Should you be lawfully stopped by the police when driving (perhaps, for example, your plates do not match your make and model) you will almost certainly be detained for a short while  the officer speaks with you, decides whether to issue a ticket, and, perhaps, completes the paperwork.  In R v Aucoin it was decided that the police have to be particular about choosing how to detain you.  The detention must be the least detaining …ish possible.

Over-detaining is bad  because it breaches the Charter.

Under-detaining is good, as then you have received your rights to the full.

As the strained expressions above evidence, this case creates a difficult distinction in the notion of “detention”.  In deciding this case, the court decided that there are different levels of freedom possible within the singular idea of a detention.

In this case, the police lawfully detained Aucoin.  He was pulled over because his plates did not match his car.  The officer also found he had been drinking.   The officer chose  to complete his paperwork in the front of the cruiser because it was dark outside and the cruiser had an overhead light by which he could write.   A crowd had gathered nearby so the officer, thinking that Aucoin may leave the scene and walk into the crowd while he completed the paperwork  decided to place him in the rear seat whilst completing the paperwork.  First, however, he patted him down to ensure both he and Aucoin would be safe.  The pat-down, however,  resulted in the fortuitous discovery of cocaine.   At trial, later,  Mr. Aucoin argued that the search of his pockets (which lead to the discovery of the drugs) was illegal.  The reasoning was simple: Had the officer decided to not put him the cruiser he would not have patted him down.   If he had not patted him down then the cocaine would still be safe in Mr. Aucoin’s pocket as he drove away.  That, speaking from the perspective of the constitution,  is the preferable outcome in this case.  If the officer had chosen a lesser means of detention then Mr. Aucoin could have driven away with his drugs, and all would sleep well that evening  in Canada knowing the Charter was on twenty-four hour patrol, keeping our rights safe.

The police officer did, the court said, offend the Charter.  He detained Aucoin too much, so to say,  because there was an easier way to detain him than the way the officer chose.   The officer could have waited, for example, for a back-up officer to arrive and guard Aucoin (the example given by Moldaver J.)  but when the officer decided to put him in the car  there was an “adverse impact” on his “liberty and privacy interests”.   There was a “shift in the nature of the detention” as the court would put it.   Now whether there was “adverse impact” in fact on Mr. Aucoin, or whether in fact it was more pleasant to rest in the back of the car than to stand on the side of the road, is not asked.  One does not need to experience a lack of rights in order to have them.   And the right at stake here (and these are not big stakes) is the right to the least possible form of detention that still results in no freedom whatsoever.

The awkward outcome is perhaps because there is a forced distinction in the language that is not as thoroughgoing as it might at first appear.  Lawyers are prone to call this `defining the scope of the right`.   The decision necessarily means that I have more freedom if I am held at the side of the road than I would have while sitting in the back of the cruiser.   It is not true, of course, for  I am equally un-free in both situations.  Yet, the former is is reasonable and the latter is unreasonable.

Perhaps it is because the court uses the abstract principle for a non-abstract questions.  The law is about things that happen,  how the police treated you for example, but the law is created in the abstract.  The courts are on Mars Hill, as it were, while the crimes occur on the streets of Athens.   I am supposing most people want to be free and they are so interested.  But whether there was on these facts any greater interest in standing roadside rather than being placed in the rear of the cruiser is not the driving force of the decision.

Well, creating distinctions is the work of judges and academics alike.   The law develops by distinctions, as does a good deal of learning.    It is not self evident that this particular distinction is helpful.  Had the police officer cuffed Mr. Aucoin to a post box the court would be forced to reason as follows:  Since there was a lesser way to interfere with Mr. Aucoin’s liberty interest, such as placing him in the back of the cruiser, the cuffing to the post box is a breach of his Charter rights.  In such a case, placing Aucoin in the cruiser becomes the reasonable action for the officer to have taken.  When this case is applied to new facts, such oddities are certain to appear.

Thus, less detention is the new detention.  Police officers must consider all the possible ways to take away your freedom, and then choose the actions that takes away all your freedom in the least way possible.

The court is careful to point out that officers make these kind of decisions quickly in the ordinary course of business.  And in this case, the intentions of the officer was always to do the right thing.  Yet he did wrong.  I am left to wonder whether  we think about rights generously enough or whether we subject them to the microscope forgetting that the subject matter is rather large and obvious.   Did Mr. Aucoin attend at his lawyer’s office to tell him that he was fine with being detained at road side, but when he was placed in the car, he could feel his rights slipping away?   Would the distinction made by the court be something true to the senses in every day life.  It is hard to imagine it would be.  The decision in this sense bears less resemblance to fact than one hopes.  A lot like the majority in Palsgraff.

Law is ever-interesting in that way.  There is no end to its novel creation or considerations.   Words exist to be modified,  and no one case is like another.  Truly interesting.