Law Times

Law Times • January 12, 2015 Page 7 www.lawtimesnews.com COMMENT LeBel had major influence on criminal law ustice Louis LeBel retired from the Supreme Court of Canada on Nov. 30 when he bumped up against the mandatory retirement age of 75. The occasion was significant. LeBel had served for nearly 15 years and had become one of the court's most respected and inf luential voices. Though we tend not to lavish the kind of outsized praise or derision on our Supreme Court jus- tices that their U.S. counterparts enjoy, it's worth taking stock of their contribu- tions as they pass from the scene. It's one window onto how our law has developed over time. I'd like to take a necessarily abbrevi- ated look at what I consider to be LeBel's most inf luential contributions to crimi- nal law and procedure. Though not originally a criminal law expert like his colleague, justice Morris Fish, LeBel had a significant impact on the court's crimi- nal jurisprudence over the course of his tenure. Despite his reputation as a liberal, I consider him to have been a consum- mate moderate in criminal matters with a deep concern about procedural fair- ness to the accused without losing sight of society's pressing need to investigate and convict the guilty. That sense of balance was evident in R. v. Araujo, LeBel's first significant criminal procedure decision as a mem- ber of the court. In that case, a unani- mous court led by LeBel breathed new life into the requirement to grant a wiretap authorization only where the police have demonstrated investigative necessity while rejecting lower court ju- risprudence that had relaxed this stan- dard to a troubling degree. At the same time, the court rejected the defence contention that the court could autho- rize wiretaps only as an absolute last re- sort. Indeed, LeBel's common-sense ap- proach to the review of wiretap authori- zations caused the judgment to become the go-to authority for review of judicial authoriz ations more broadly. In criminal procedure, LeBel's position as a prin- cipled but moderate liberal comes through in R. v. Re- gan, in which a former Nova Scotia premier sought to have his sexual assault prosecu- tion stayed because of Crown misconduct amounting to at- tempted shopping for a judge. LeBel's majority decision in Regan consolidated the mod- ern test for when an abuse of process by the Crown merits a stay of proceedings. He concluded on the facts that the misconduct in Regan didn't meet the high threshold for sparing the accused a trial on the merits. While cases like Regan and Araujo have more day-to-day relevance for criminal practitioners, to my mind R. v. Ruzic is probably LeBel's most lasting and profound contribution to criminal law jurisprudence. There, the accused had brought two kilograms of heroin into Canada from Yugoslavia. Her de- fence was duress after a man in Belgrade threatened to harm her mother if she didn't import the drugs. But there was a problem with this defence: The statu- tory definition of duress requires a threat of immediate harm from a person who is present at the time of the offence. It literally requires the proverbial gun to the head. Since the threats against her weren't immediate and their source not present, the accused was out of luck. Writing for a unanimous court, LeBel held that the state couldn't legitimately punish conduct that was morally invol- untary. The principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms forbid it. It followed that the statutory defence of duress was un- constitutionally narrow. And if the court believed Ruzic's story, her conduct fit the bill of moral involuntariness and an acquittal should follow. Ruzic makes clear that the principle that criminal conduct must be voluntary in a meaningful moral sense and not just in a literal physical way is one of the deep organizing princi- ples of our criminal law. Although LeBel was usu- ally in the majority in signifi- cant criminal cases, he did is- sue some significant dissents. In the 2008 sniffer dog cases, LeBel sounded a note of cau- tion about the judicial expansion of com- mon law police powers in the absence of any parliamentary input. His view narrowly failed to carry the day, but in the very recent case of R. v. MacDonald , LeBel's majority decision put the brakes on further expansion of the common law power to search for officer safety reasons. The common theme in LeBel's decisions on police powers, I think, is an abiding concern for circumscribing police dis- cretion to interfere with individual liber- ty within reasonably predictable bounds. Perhaps most significantly, LeBel dis- sented from the court's pronouncements in R. v. Singh and R. v. Sinclair, two deci- sions that gave police considerable lati- tude in conducting custodial interroga- tions. Both decisions involved 5-4 splits and in both LeBel was with the faction that would have favoured the suspect's right to interrupt an interrogation by in- voking the right to silence or to counsel over the officers' desire to get a confes- sion. Those decisions remain controver- sial, and many in the defence bar would like to see the pendulum swing back to- ward the more protective view favoured by LeBel and his dissenting colleagues. As with any judge, LeBel's record has its blemishes. His decision in R. v. Ryan, jointly authored by Justice Thom- as Cromwell, found that the accused's battered-woman claim provided no l egal defence for having tried to hire two hit men to kill her estranged husband. It didn't meet the elements of either duress or self-defence. Nonetheless, the court granted a stay of proceedings that spared the woman a new trial for reasons that struck me as opaque and indefensible. I suspect LeBel and his colleagues have come to regret that decision in light of facts that have subsequently come to light casting grave doubt on the veracity of the woman's account and the merits of her defence. More lasting, I think, will be LeBel's contributions to sentencing jurispru- dence in two important cases involving aboriginal defendants, R. v. Nasogaluak and R. v. Ipeelee. In Nasogaluak, the court held that a breach of an accused's Char- ter rights could justify reducing an oth- erwise fit sentence. Ipeelee reaffirmed the R. v. Gladue approach to sentencing ab- original offenders and recommitted the justice system to addressing the problem of aboriginal overrepresentation in pris- ons. Both decisions, grounded in a prac- tical and humane appreciation of social reality, speak to a fundamental concern for proportionality in the imposition of punishment by the state. Interestingly, the three-judge Que- bec contingent on the court has seen a complete turnover since 2012. The new judges don't yet have extensive track records in criminal law. Unlike LeBel, who had built up a track record on the Quebec Court of Appeal, his re- placement, Justice Suzanne Côté, is an unknown quantity judicially given her appointment straight from the bar. Her predecessor leaves a worthy legacy to aspire to. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchi- son LLP with an emphasis on appellate litigation. He's available at mgourlay@ hhllp.ca. New taxes likely as government battles financial mess hings seem pretty quiet around Queen's Park these days with the legislature on break until Feb. 17, but the majority Liberal govern- ment is busy setting the stage for its next big play: the spring budget. Let's get the bad news up front: There will be tax and fee increases and some program cuts but more of the former and fewer of the latter. When it comes to tough decisions, the Liberals have shown they'd rather take the path of least resistance. The hard facts, however, won't go away and something has to change. Last Sep- tember, the Ministry of Finance pegged the provincial deficit for 2013-14 at $10.5 billion even as it predicted revenues would grow by 2.8 per cent while spend- ing climbed 3.5 per cent. It was hardly a major austerity strategy. The bigger issue is the accumulated debt, currently projected at $290 billion for 2014-15 and rising to $325 billion by 2017-18 when the government promises to balance annual spending. So what will they do? Bet on a carbon tax. The federal government isn't going there with an election this year and the odds are more provinces will go it alone as British Columbia and Quebec have al- ready done. The timing is perfect. Just as nature a bhors a vacuum, so, too, do governments detest missed tax opportunities. The Liber- als have already targeted the drop in unemployment pre- miums to launch their On- tario retirement pension plan, hoping those affected won't actually feel the fiscal pinch. Assuming gas prices stay soft, a new carbon tax will barely dent the rebate con- sumers are now getting at the pumps. It may even be the first step in a cap-and-trade system for green- house gas emissions, something that will no doubt bring great joy to the big law firms on Bay Street because it will trigger a bounty of new billable hours. There may even be higher licence and vehicle-plate renewal costs since these are easy revenue targets, especially if there's a pledge to put all of that money into transit. The sleeper sting might just be estate taxes, which have remained the same since 1992. The Liberals telegraphed the idea in 2013 when they tightened up the rules around reporting estate values. As of Jan. 1 of this year, estate trustees must pro- vide a detailed list of all real estate, cash, vehicles, stocks, and investments to the Ministry of the Attorney Gen- eral while beneficiaries have 30 days to report what they receive to the Ministry of Fi- nance. With new reporting rules in place, it looks like it would be an easy next step to raise those taxes. The first step is already go- ing to create a few headaches, says Toronto estate lawyer D'Arcy Hiltz. "I haven't seen the new forms, though I have a filing coming up that's delayed so maybe I will soon," he says, noting the change raises the stakes for executors. "You can make an honest mistake and it's no big secret most tend to have filed lower valuations. Now, though, you'd want to get a professional appraisal. At the end of the day, I'm the guy responsible, so it may not be acceptable to just have a let- ter of valuation from a realtor." All of this means additional costs, and relying on an amended valuation doesn't help because it all adds to the client's tab, he says. With these and other unpalatable changes looming, there's going to have to be some sugar to help the bitter medicine go down. My guess would be a trimming of some agencies and selloffs, but it will be mostly cosmetic. More dramatic would be a restructuring of the deal with those international conglomerates that run the Beer Store. The government may even make small changes to the Liquor Control Act of Ontario to allow microbreweries to collaboratively operate boutique stores as wineries do now. The Toronto Star's Queen's Park colum- nist Martin Regg Cohn has done a great job of hammering at the Beer Store and its cozy relationship with all sides of the leg- islature. The spotlight is getting a tad hot. No politician needs reminding that there's nothing more populist than beer. Last year, an Angus Reid Survey found 69 per cent of Ontarians wanted to see more private sector competition with the Beer Store. Despite the upside, how far the Liber- als will go in changing the status quo at the LCBO and the Beer Store may well de- pend on how far they want to reach into Ontarians' pockets. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@ rogers.com. A Criminal Mind Matthew Gourlay J Queen's Park Ian Harvey T

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