- Avant Garde
AVANT GARDE - VOL. 2, ISSUE 2 - JANUARY 2022
DOWNLOAD THE FULL ISSUE HERE
LINCOLN ALEXANDER SCHOOL OF LAW
IN THIS ISSUE:
1 | PRIVACY VS POLICE PRACTICALITY: R V. STAIRS
2 | R. V. MORRIS AND THE LIMITS OF DETERRENCE AND DENUNCIATION
3 | PBSC – REFLECTIONS AND THOUGHTS
4 | EMPLOYMENT LAW AND PRONOUN USE: DAMAGES AWARDED AT THE BC HUMAN RIGHTS TRIBUNAL
6 | ALGORITHMIC DECISION MAKING AND THE RISK OF ENCODED BIAS
7 | WHAT ARE DAO’s AND WHY SHOULD I CARE?
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>