AVANT GARDE - VOL. 2, ISSUE 2 - JANUARY 2022
DOWNLOAD THE FULL ISSUE HERE
LINCOLN ALEXANDER SCHOOL OF LAW
IN THIS ISSUE:
8 | JURISPHYSICS
PRIVACY VS POLICE PRACTICALITY: R V. STAIRS
BY MIRA SETIA, Editor-In-Chief
In 2020, the Ontario Court of Appeal (ONCA) in R v Stairs, 2020 ONCA 678 (Stairs) ruled in favour of police practicality in light of an arrestee’s privacy rights being violated inside their home. After responding to a 9-1-1 call regarding a potential domestic dispute, and after the appellant was placed under arrest, the police officers on the call conducted a visual safety sweep of the private residence and basement in order to ensure there were no safety hazards for the officers or hazards which would interfere with the arrest itself. Under the “search incident to arrest” doctrine, police are authorized to conduct warrantless searches if they are incidental to the arrest and are for officer safety, for public/victim safety or to preserve evidence. In conducting this sweep, the officers found methamphetamine in plain view and seized it.
It is important to note that although an individual’s privacy rights decrease upon arrest, their s.8 Charter right against unreasonable search and seizure still exists. Where and when the right to privacy ends is subject to debate. The ONCA, in balancing the appellant’s s.8 privacy rights, concluded that “the law must be practical” (para 59). Although police are constrained on what they can and cannot do while in a residence without judicial authorization, the court showed deference to the officers and accepted their safety concerns as legitimate aspects of their job. Hence, although it was warrantless, the search was justified because it allowed the officers to complete their duty of protecting life and ensuring safety. Nordheimer JA disagreed in the dissent. He warned that too easily allowing police to justify a search as “reasonably necessary”, under the theoretical notion of police protecting life, can have serious ramifications to the bigger picture of an individual’s right to privacy.
There are two schools of thought here. On one hand, the majority accepts the practical aspects of policing and how in order to successfully complete their duties, certain individual rights must take a backseat. As stated in R. v. Golub, 1997 CanLII 6316 (ON CA), and as cited in Stairs, “just as it is wrong to engage in ex-post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions”. Conversely, these practical considerations should not overshadow the Charter guarantee and theoretical principle of individual privacy, which the law understands as a protection of personal "dignity, integrity and autonomy”. As Nordheimer JA explained in his dissent, allowing police officers to violate privacy rights under the general scope of their duty “would be nothing short of a fiat for illegality on the part of the police whenever the benefit of police action appeared to outweigh the infringement of an individual's rights” (para 77).
Police officers are a vital part of society and our justice system; and allowing them to fulfill their duties allows law to be practical. However, the privacy an individual has in their home against state interference and police abuses of power should be preserved. Balancing police practicality and the principle of privacy is key. Stairs is currently on reserve at the Supreme Court of Canada (SCC). What the Court decides will set a precedent for the future of privacy and police powers in Canadian society.
R. V. MORRIS AND THE LIMITS OF DETERRENCE AND DENUNCIATION
BY CHANTELLE MCDONALD, 1L
The Ontario Court of Appeal's (ONCA) decision in R. v. Morris, 2021 ONCA 680 (Morris), while a step in the right direction, does not make full use of the tools at the ONCA's disposal to address systemic racism in our justice system. Morris, which examined the role that systemic racism plays in the sentencing of Black accused, demonstrates the limits of the court to lessen the impact of these embedded practices as long as "deterrence" and "denunciation" remain core goals of sentencing.
What the Decision Got Right and Wrong
Interveners called for a clear sentencing framework for Black accused, while others criticized the decision.1, 2, 3 To summarize ONCA’s decision in brief: it reduced the weight placed on systemic racism from the trial judgement; it heavily relied on deterrence and denunciation to assess the offence’s severity; it did not defer to the trial judge’s finding that Morris was reasonable to run from the police (instead they found it unreasonable that Morris would flee in fear – an incredible finding given the reality, or maybe exactly what we should expect); and finally, it failed to provide clear guidance on how systemic racism should be applied at the sentencing stage.
It is not all bad. The court called for funding for pre-sentencing reports (the government moved on this pre-Morris)4 which touches on the inaccessibility and unfairness of the individual onus of providing social context evidence. The court shot down the Crown’s assertion at trial that evidence of systemic racism was inadmissible, and also noted the court’s own limitation within the existing sentencing legislation. The ONCA indicated that the “trial judge’s task is not primarily aimed at holding the criminal justice system accountable for systemic failures. Rather, the sentencing judge must determine a fit sentence governed by the…objectives of sentencing...in…the Criminal Code.”5
The court also affirmed that systemic racism is real, which I refuse to put in the “good” bucket since it is a bare minimum fact in the context of Canada’s over-incarceration problem.
Imagining a Way Forward
At its root, we still have a criminal justice system built on racist and colonial principles. It is not broken - rather it was built to do the thing that it is doing. Judges are stuck with sentencing principles and ranges that protect “community safety” through deterrence and denouncement – a pipeline to prison.
The principles of the sentencing process are contradictory to the Court’s recognition of the systemic issues. While the ONCA acknowledged that systemic racism impacted Morris, and that it can be considered at the stage of moral culpability, it could not be considered in terms of the seriousness of the offence (which must be denounced and deterred).The court reviewed mitigating factors that weighed in favour of a lower sentence – i.e. Morris’s strong relationship with his mother, social supports, and rehabilitative potential. But what if he did not have mitigating factors to comfort the court? The application here suggests that if someone is in a “worse” position, even if that position is a result of systemic inequities, that they should be sentenced more harshly; and potentially because they are more impacted by the very systemic inequities and racism that the court is recognizing.
In a recent report on Canada’s criminal justice system, the Department of Justice acknowledged these impacts. The report stated that “some of [the criminal justice system’s] values and principles are outdated, including relying too heavily on punishment and incarceration”,6 and recognized that Canada uses incarceration to deal with social support issues. The report also states that offenders must continue to be held accountable for their actions, as public safety is paramount.7 When you read the report, note how it approaches this issue as a zero sum game, as if reducing incarceration is pitted directly against community safety. Safety is not a neutral concept in a society built on systemic racism, and it is not applied equally to all. We need to ask ourselves - safety for which "victims" exactly? Who gets included as worthy of safety, and which communities?
It is a damaging misconception that we must choose between safety and decarceration. I am skeptical of how the protection of public safety is framed in the courts and how it factors into government action. We see this in Morris. The court was compelled to rely heavily on deterrence and denunciation, which necessitated an unsatisfactory outcome. As we grapple with the issue highlighted in Morris, we miss the point if we focus solely on the bottleneck and not the pipeline.
1 - Makinde, Sade. “BLAC responds to Ontario Court of appeal decision in R. V. Morris”, (14 October 2021), online: Black Legal Action Centre <https://www.blacklegalactioncentre.ca/blac-responds-to-court-of-appeal-for-ontarios-decision-in-r-v-morris/>
2 - The David Asper Centre for Constitutional Rights. “Factum of the Intervener,” (19 July 2019), online: David Asper Centre for Constitutional Rights <https://aspercentre.ca/wp-content/uploads/2019/07/Morris-factum.pdf>
3 - The Docket. 130: Race in sentencing, ed. (Michael Spratt, Emilie Taman, 2021) <https://podcasts.apple.com/ca/podcast/the-docket/id873244552?i=1000538881259>.
4 - Department of Justice Canada, Pre-Sentencing Impact of Race and Culture Assessments receive Government of Canada funding (August 2021), online: Government of Canada <https://www.canada.ca/en/department-justice/news/2021/08/pre-sentencing-impact-of-race-and-culture-assessments-receive-government-of-canada-funding.html>
5 - R v Morris, 2021 ONCA 680 at para 56 [Morris].
6 - Department of Justice Canada, Final Report on the Review of Canada’s Criminal Justice System (2019), online: Government of Canada <https://www.justice.gc.ca/eng/cj-jp/tcjs-tsjp/fr-rf/docs/fr.pdf> at pg. 9.
7 - Department of Justice Canada, Final Report on the Review of Canada’s Criminal Justice System (2019), online: Government of Canada <https://www.justice.gc.ca/eng/cj-jp/tcjs-tsjp/fr-rf/docs/fr.pdf> at pg. 10.
The author would like to thank Julie Matheson for her helpful comments on this article.
PBSC – REFLECTIONS AND THOUGHTS
BY IVY LOK, 2L
Since the launch of the Pro Bono Students Canada – Lincoln Alexander School of Law Chapter, applications were submitted, matches were made, and our students have begun working on various projects with their respective organizations. PBSC provides an opportunity for students to be involved with national and community-based public interest and non-profit organizations.
On November 22, 2021, our team at PBSC put together a Volunteer Appreciation Celebration to commemorate the work of our volunteers. The festivities kicked off with food, gifts, and great speeches. A big thank you to Katrina Grogun-Kalnuk, Kayla Terceira, Annelise Do Rio, Lila Mansour for organizing this celebration.
I took this opportunity to interview a few of our volunteers at the event to get their thoughts and reflections on the projects they were working on so far. Many of our volunteers were matched to a project that they had personal interest or background knowledge in, and a few applied for practice areas that they wanted to explore in their future career.
The majority consensus stated that PBSC was an opportunity to get hands on experience outside of an academic institution. The typical time commitment is 3-5 hours a week. Students report that this has been manageable in conjunction with their academics and extracurriculars, and that their weekly meetings have been flexible with their demanding schedules.
Although some of our attendees report meeting weekly with their supervisors to speak about their progress, most report that the projects are fairly independent. These students work mainly with their volunteer groups, independently, or with a few members of the organization. The amount of legal-centric work varies with each topic, which is something for future interested students to consider. Most students reported that the project matched their expectations of what was expected of them, although some did expect more management in creating their deliverables. Overall, students were content with the balance between independent work and collaboration with the organizations.
Here are some highlighted project organizations our volunteers are working with:
The Federation of Metro Tenants' Associations
Ridhey Gill (2L) and Merima Menzildzic (2L) are working on a manual to provide information regarding tenant rights in Toronto. The FMTA works to educate tenants and to advocate for their rights through campaigns.
519 Trans ID Clinic
Julie Matheson (1L) spoke about providing assistance in obtaining new identification for trans and gender diverse individuals by helping them fill out the necessary documents and applications. The Trans ID Clinic also provides legal information and referrals for their clients.
Women’s Multicultural Resource & Counselling Centre Legal Information Guide
Patricia Arulchelvam (1L) is conducting research to develop a guide that provides general legal information for the most common issues that women of diverse backgrounds face, including criminal law, family law, and human rights issues.
Improving Access to Postpartum Mental Health Legal Information
Kaylee Rich (2L) is working on a project that helps mothers struggling with post-partum depression. The deliverable consists of a video and script to identify the challenges these women face and how they may navigate mental health support resources.
HPARB & HSARB Case Analysis and Compilation Project
Kian Rastegar, Alex Payne, Leo Cho (2L) and Shaun Shepherd (1L) are all assisting Bonnie Goldberg and various Board members in their decision making. Their project consists of compiling a database of case analyses and summaries, and organizing them by legal issue.
Wellfort Community Health Services
Kanwar Brar (1L) is researching various topics that affect the Wellfort Community, including immigration processes, housing law, and social assistance. The end goal is to create a presentation that will deliver information about these topics as an educational piece for staff and clients.
Thank you to our interviewees for sharing their thoughts!
EMPLOYMENT LAW AND PRONOUN USE: DAMAGES AWARDED AT THE BC HUMAN RIGHTS TRIBUNAL
BY DENA PAPAIOANNOU & BRYN COPP, 2L
UPDATE: see Bryn Copp's article in Volume 2 Issue 1
Evolving from last month’s article discussing the use of pronouns in the courtroom, British Columbia’s Human Rights Tribunal awarded damages of $30,000 to a former restaurant worker. The damages came after finding that their employer was discriminating on the basis of gender identity. The employee, Jesse Nelson, is a transgender person and a non-binary individual who uses the pronouns they/them. While at work, Nelson’s former colleague repeatedly misgendered them by using incorrect pronouns and calling them traditionally feminine nicknames such as “sweetie”, “sweetheart” and “honey”. The colleague’s repeated misgendering contributed to Nelson’s sense of identity and erasure. In an effort to respond to the discrimination, Nelson mirrored the same action by slapping the former colleague on the back and referring to him as “sweetie”. Nelson was terminated without cause.
The Tribunal comments that this interaction was likely not the cause of Nelson’s termination. Instead, they find that Nelson was likely terminated for their efforts against the discrimination they continuously faced in the workplace. After considering the traumatic effect these actions had on Nelson, the Tribunal ordered human rights training for the restaurant staff. The owners and the former colleague are ordered to award Nelson the compensatory damages.
DOGECOIN FOR DUMMIES
BY SHELLY BARD, 2L
Full disclosure, this is the first time I have tackled this concept. This article will explain what cryptocurrency is and how it functions in relation to other coins at a very simplistic and easy-to-understand level. My impression when starting to research this topic was that I was the only person who did not understand cryptocurrency’s purpose or function. I can now say that I mildly do, and invite you to explore the popular world of cryptocurrency as well.
As per our daily dose of simplicity, I will begin with definitions. Cryptocurrency is a digital coin that lets you buy goods or services. You can trade the coin for profit like you would between Canadian and US dollars. The best way to look at it is like casino chips. There are over 15,000 different cryptocurrencies on the public market worth trillions of dollars. In the end, it’s an investment. Its value goes up and down. The way you profit is if someone purchases your coins for more than you bought them. To purchase these coins, you first need a “wallet”, which is an app that holds the currency. Simply put, you transfer real money to an account on the app, and with that money you buy a coin. That is cryptocurrency.
However, I am sure by now you have also heard of “mining”. Mining looks like a room full of computers and fans overheating. ‘A sauna making money’ is how it felt when I entered the room of a miner, aka one who mines. Put modestly, it is the process of creating what is called a “peer-to-peer” network without needing a central authority like a bank. To add to the image, there is the main computer, where the miner sits. To create new coins, the miner collects transactions and organizes them; also needing to “prove” their work. Each of those big silver boxes sitting in that room is a network node which receives, creates, stores, and sends data across a network. Each node receives data and verifies it. It tracks the source of the digital money, and double spending to name a couple functions. Honestly, I do not fully understand what all these terms mean and there are so many more aspects such as a memory block and hashing to explore. From my research, I did grasp that these computers need to make sure the messages they are receiving are correct and they do this through a type of game, or mathematical equation with other computers. Once it all works out, a coin is created.
As of December 3rd, 2021, Dogecoin was the 10th most popular cryptocurrency. But what is the big deal with Dogecoin and why such an amusing name? Not surprisingly, Dogecoin started as a joke online, but grew quickly in value. I am sure you heard the buzz. Many celebrities and one well-known billionaire, Elon Musk, tweeted about the coin to millions of followers causing many people to purchase it. After reading about its success, it is questionable whether the coin will continue to grow; as it appears to have faltered. However, it still remains very popular.
After having asked several people about cryptocurrency, it appears that the more they know and the more they are invested in the subject matter, the less they can simplify its process in conversation. While I wanted this task to help myself and others understand cryptocurrency, I fear I opened Pandora's box and equally find it difficult to explain. At the very least, and if you are like me, you can find reassurance in now being 600 words more knowledgeable about the crypto frenzy than you were before.
ALGORITHMIC DECISION MAKING AND THE RISK OF ENCODED BIAS
BY NAIME ISAJ, 2L
The access to justice landscape has been imbued with discussion about how legal professionals and decision makers can leverage automation to increase accessibility and consistency in the law. Despite entities across the private sector who are early adopters of this type of technology, public sector entities have significantly shifted their focus – illustrated by institutions such as the Department of Justice and Immigration, Refugees and Citizenship Canada considering the implementation of artificial intelligence (AI) solutions that would automate various processes across government agencies, courts and administrative tribunals.
In an administrative context, scholars have weighed the benefits of an expedited, automated process with the risks posed to fairness in the deployment of AI based decision making. Justice Lorne Sossin of the Ontario Superior Court of Justice has explored various opportunities where AI could be appropriately utilized within his scholarly work, which has included the fundamental need for oversight of a tribunal and decision-making body’s reliance on machine learning and or predictive analytics to maintain a standard of fairness within procedural outcomes. This sentiment comes after a report from the University of Toronto exploring the implementation of AI in decision making within Canada’s Immigration and Refugee system, found here. In addition to the implementation of oversight mechanisms, researchers have also highlighted the need for a detailed account over the way data is collected and utilized that ultimately fuels the way decisions are made.
An axiom of automated decision making is the need for its congruence with both legal and ethical considerations. Analyzing algorithmic decisions can pose a challenge to legal practitioners and computer scientists alike when attempting to understand how models have accounted for thousands of factors or data inputs, which illustrates the need for policymakers and designers of these systems to contextualize their analysis of both the benefits and consequences of utilizing algorithmic decision making to solve a certain problem.
Researchers have not been shy about the need for more data to strengthen the efficacy of algorithmic decision making as well. Data sets have a particularly significant impact on not only the efficacy of existing tools, but also how these tools are amended and remodeled in the future to account for subjective ideas that may trickle into a decision-making process. Limited access to court and tribunal decisions have also proven to pose a challenge for professionals seeking to break into the industry of predictive software across various areas of the justice system in Ontario. Current and future collaboration amongst policymakers, lawyers, jurists and importantly, community organizers, will necessarily address the nuanced privacy considerations apparent here against the inevitable automation that has already, and will continue to take place.
1- Jesse Beatson. “Synapses & Silicon: The Search for the Ideal Adjudicator” (2018). 2- Lorne Sossin. “The Algorithm of Justice? Fairness and Digital Rights” (2018). 3- Christopher Bavitz et al. “Algorithms and Justice: Examining the Role of the State in the Development and Deployment of Algorithmic Technologies” (2018). 4- Ibid.
WHAT ARE DAO’s AND WHY SHOULD I CARE?
BY ISABELLA SPILIAKOS, 1L
The rate at which technology has evolved in our lifetime is, to put it lightly, staggering. Even more than that, it’s often confusing. Blockchain, Cryptocurrency, NFTs, DeFis, the Metaverse. Not unlike the first introduction of the internet itself – it is simultaneously exciting and mind-bending. Within that list of terms that sound more foreign than the Latin casually thrown around in first year torts is a new kind of business, Decentralized Autonomous Organizations, or DAOs.
Imagine a company with no board of directors, no executives, not even a manager. Yet it behaves like a business, carrying out contracts, transactions and providing services. Much like a company releasing its initial IPO, DAO’s sell tokens to raise funding in place of shares. Your contribution determines your voting rights. From there, the DAO operates on an original code and set of smart contracts. Smart contracts are essentially programs that carry out certain actions when the predetermined conditions are met, much like the way a normal contract would be carried out. The only exception is that it’s done autonomously. These contracts and code are the operations of the business, and they cannot be changed without being voted on by all members. These changes to the code are also made visible to everyone, creating 100% transparency and accountability.
For law students this shift in the way technology will impact our world leaves a lot of uncertainty. How do we fit in to it all? Some argue that the transparent and autonomous model forgoes the need for these companies to have any legal power. Consider the execution of smart contracts. Everything is done automatically once the conditions of the “contract” are fulfilled. Does this mean it has erased any possibility of legal dispute around the validity of the contracts and the actions it carries out?
More confusing still, what happens when DAOs can transition to operating in the real world? Wyoming recently passed legislation allowing DAOs to register as LLCs. Meaning, DAOs will be given the rights of a corporation just like any other traditionally incorporated business. But with every element of the business run online, how do these operations cross over into the real world? The future of asset ownership, voting rights, and shareholders is being boiled down to how much of a certain type of token (cryptocurrency) someone holds in their virtual wallet.