Sunday, August 21, 2011

So What's All the Fuss About Aboriginal Rights?

It's a rather small rectangular light on the cockpit instrument panel. It is, appropriately enough, red. But not all that impressive for the word emblazoned across it: "STALL." It's flashing right now, accompanied by an equally unimpressive, plaintive "baaa", "baaa", "baaa" sounding like a highly alarmed sheep of the highlands being chased by an overly-amorous Scot.

I'm in a twin-engine Piper Navajo Chieftain that I've chartered. It's just taken a hard left turn, and is attempting to drop from 5000 feet down to zero in too short a time. First time the pilot has been into this gravel strip. Seems he's waited a little too long to start his descent, but can't say I can blame him with all the natural obstacles that require dodging.

We've just shot up a fjord known as Rivers Inlet on British Columbia's central coast: beauty like the stuff of movies. Waterfalls propelled from sheer vertical mountainsides. Mountain goats like fleas picking their way across those same sheer faces. Invisible salmon below, deciding if it's time to make a run back up the home tributary.

At the end of the fjord is a very short river - the Wannock - followed by the long narrow Owikeno Lake that's very similar to the fjord except for one being fresh water, the other salt. Fjord, river and lake are all compressed by vice-grip mountains running along their shores. The folks I've come to see live out their lives on a small amount of flat habitable land running along the shores of that short but important river, a river which historically had the third greatest salmon run on the west coast. They're the Wuikinuxv, and the Government of Canada has given me a mandate to settle their Aboriginal title claim with them. It's early 2004, and talks have already been proceeding sporadically for several years.

We kept the Wuikinuxv waiting a long time. Their then-Chief Joseph Chamberlain speaking through a translator told the Mckenna/McBride Commission (a government commission investigating the territory of Aboriginal reserves in British Columbia) way back on a Saturday afternoon on August 16th, 1913:
We want to get the whole of River's Inlet, from Koeye to the lake – Wuikinuxv Lake. The Whiteman wants to take all of our land and we are in the position of men who have been pushed half way to the water off our land, and it would not take much to push use off the land into the deep water altogether.
When a process was finally set up a mere eighty years later to deal with the Aboriginal title claims of the Wuikinuxv and numerous other Aboriginal peoples in British Columbia who had never signed treaties with the Crown, the Wuikinuxv laid claim to 6783 square kilometers – an area a bit smaller than Puerto Rico, and a bit bigger than Trinidad and Tobago. Almost no one else lived in this remote fly-in territory. Some loggers and commercial fishermen passed through now and then. But you don't need remote territory to have a claim; we also had groups in downtown Vancouver.

Aboriginal rights are nothing new in Canada. They existed in 1492, still continued in 1763, and even survived in 1982. Over this 500-year period, judges and legislators have shed a little light on what they're all about. And of course, Aboriginal peoples have had a thing or two to say about them as well. It's easiest to start not at the beginning (though for those who like to start stories there, I highly commend to you the great book 1491 by Charles C. Mann), but only around 30 years ago when s. 35 of the Constitution Act, 1982 codified what this Aboriginal rights thing was all about:
s. 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
What this meant was that the government couldn't go around any more unilaterally extinguishing rights, that aboriginal rights could be separate from treaty rights, and that there are three kinds of Aboriginal peoples in Canada.

There's unfortunately lots of mythology which has developed around what those rights may or may not be. Mythology that hasn't helped the cause of Aboriginal-Crown relations in Canada. Perhaps the most key concept to remember is that they are collective rights exercisable by individuals; in a day and age of individualistic rights, this collective-rights concept might strike one as a little strange, but really it makes a lot of sense as it controls the historic continuity of who the rights used to belong to and who they have been passed down to.

It means that anyone with some Aboriginal ancestry - for which an awful lot of Canadians who have been here for a few generations might qualify  - can't simply walk out of their downtown Toronto condos and start exercising what they claim are their rights. But it also means that rights can continue collectively notwithstanding that those individuals who possessed rights at the time of first contact or treaty signing with Europeans aren't around anymore. It's not quite the same as non-Aboriginal property rights continuing after an individual passes on, but most seem to agree that individual inheritance is fair. So why not collective inheritance? I can tell you about those rights in future posts, but this is at least a start.

The wheels of the plane hit the gravel strip. We stop quickly; lots of runway left! No more flashing lights or alarms.

Unfolding ourselves from the narrow seats arrayed along the interior of the fuselage, we duck our heads as we exit the aircraft. We inhale moist temperate rainforest scents, and wonder if grizzlies have come down to the village to feed on the plentiful berries. The Wuikinuxv are waiting for us with a van to drive to the village to start our negotiations.

Thursday, August 11, 2011

Are Mandatory Minimum Sentences a Mandatory Necessity?

Don't do the crime,
If you can't do the time
It's said that it just don't pay.
But what good's working hard
When all they give you is your cards
And you know there's not much you can say.

UB 40, from the album UB44, released September 1982

But what is the time? Should it be a matter of: "steal one loaf of bread, get x sentence; steal three loaves of bread, get triple the sentence?" Or should our legislators only provide general guidelines to the public and courts about what that "time" might be, and leave it up to individual prosecutors, defence counsel and judges to hash out sentences custom crafted for each offender and offence?

Back in 1998, I was in the Ontario Court of Appeal in R. v. McDonald defending four-year mandatory minimum sentences for certain firearms-related offences. The claim was that they violated s. 12 of the Canadian Charter of Rights and Freedoms which protects against "cruel and unusual treatment or punishment." Lengthy seven year mandatory minimum prison terms for importing drugs had already been struck down in 1987 under s. 12 in R. v. Smith, the argument being that the harsh minimum didn't take account of someone like a first offender who was importing a marijuana cigarette for personal consumption. Although the Ontario Court of Appeal expressed discomfort with the sentence in my case, in the end they didn't find four-year mandatory minimum for serious gun crimes to be unconstitutional. 

A lot of the argument supporting mandatory gun minimums in the late 1990s revolved around guns being serious and somehow different. I didn't spend of lot of time contemplating that the same argument could be used for imposing mandatory minimums for virtually any type of offence.

In 2011 we now have a whole lot of mandatory minimums on the books, and a whole lot more headed down the legislative pipeline. Added to those firearms mandatory minimums, we have mandatory minimums for offences against children, mandatory minimums for impaired driving related offences, and of course that very longstanding mandatory minimum - life - for first or second degree murder. 

"Well, is that really all so bad?" you say. Those are, after all, some quite serious offences. The problem lies in the shape of things to come. Once you get addicted to mandatory minimums, there seems to be a great temptation to impose them everywhere. 

Shortly after I started serving as a Federal Prosecutor, Parliament codified sentencing "purpose and principles" in s. 718 of the Criminal Code:
 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

There have been debates as long as there's been organized criminal law over which of these points to emphasize when it comes to settling on a "fit" sentence for an offender and offence.

While the term "retribution" may have largely disappeared from sentencing vocabulary, it still hides inside denunciation. Deterrence has always remained popular, but alas it seems to have a spotty track record among criminologists who study these things; there's some evidence to support that criminalizing conduct and prosecuting people for it probably has some deterrent effect, but not for the proposition that harsher sentences will make people think twice and thus reduce crime rates. Separation from society has been shown to infinitesimally lower the commission of some types of offences (by a few percent), but by that argument locking everyone up would achieve the best result. 

While rehabilitation became the flavour of the 20th century, it still faces lots of challenges - some offenders and offences respond well, and some don't. Reparations, responsibility and acknowledgment of harm are wrapped up in concepts of restorative and transformative justice, which I'm a big supporter of, but again they don't work for a number of offenders, offences and victims.

Centuries of evolution of legal rules of evidence and procedure means that the law is now pretty good at assigning blame: determining who should be held responsible for what. There will always be critics of unjust results on the blame front, but where the law really struggles is on translating that blame into consequences. For civil tort blameworthiness the law translates serious bodily, mental or property injuries into money - "lost an arm, and it was his fault, well - he's got to pay you x." But money can never equal an arm. 

Same with the criminal law: "So he beat you up and broke your arm. Well that's worth y punishment." But a fine or imprisonment is never going to be equivalent to a broken arm. 

The criminal law has even greater problems with offences where society as a whole is the victim, which is why sentences for offences like drug dealing are all over the map. How do you get from: (1) drugs are bad, to (2) we are going to criminalizes dealing drugs because they are bad, to (3) Bob is sentenced to three years and 27 days for dealing in drugs? Usually with a lot of soul searching on the part of judges, prosecutors and defence, who look at what others with similar backgrounds have received for similar offences.

Parliament already decides on what conduct should be criminal, and on what the maximum penalty should be. Trial judges are already kept in check on how low (or high) they can go on a sentence by Courts of Appeal overturning their sentences if they are unfit. So do we really need mandatory minimums? And if so, how many? And how harsh should those minimums be?

The Research and Statistics Division of our own Department of Justice Canada (who I can attest from personal experience employs some very skilled criminologists) released a study back in 2005 entitled Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, which found: 

"There is clear evidence that even in the United States, where support is stronger for mandatory sentences, public support for the concept is declining. For example, in 1995 over half of the sampled public in the US held the view that mandatory sentences were a good idea (Roberts, 2003.) In 2001, this percentage had declined to slightly more than one-third of respondents (Peter D. Hart Research Associates, 2002; Roberts, 2003.) In fact, over half the polled public in the US now favour the elimination of “three-strikes” mandatory sentences (Peter D. Hart Research Associates, 2002.) The most recent polling on the issue of mandatory sentencing comes from the state of New Jersey. When asked whether mandatory jail or mandatory drug treatment was the  more effective approach to non-violent offenders, respondents chose treatment over imprisonment by a three to one ratio (Eagleton Institute of Politics Center for Public Interest Polling, 2004.) Three-quarters of the sample favoured allowing judges to set aside mandatory sentences “if another sentence would be more appropriate” (Eagleton Institute of Politics Center for Public Interest Polling, 2004.) Taken together, these results suggest that the impact and realities of mandatory minimum sentences are starting to be understood by the general public."

The report concluded "there is clear evidence that several jurisdictions are now either repealing or amending these punitive law" and that "the experience with mandatory sentencing legislation in a number of countries has shown that these laws do little to promote public confidence in the sentencing process."

And six years later, what's Canada up to? Take a look at a National Post piece from last May: Crime and Punishment: Inside the Tories' plan to overhaul the justice system. Or even better, check out the Legislative Summary of Bill S-10 (written by the amazing researchers at the Library of Parliament, THE place to go online for great detailed background info about any recent Canadian laws) which provides a great history of drug sentencing policy in Canada. 

Though the Bill S-10 is complicated (and it's not even the only proposed mandatory minimum bill out there), the bottom line is if passed it could lead to lots of minor drug dealers and growers (with as few as five plants) going to jail for a long time. Again, you say, not a bad thing. Well, it depends on what you're trying to accomplish. The Library of Parliament summary notes that S-10 likely won't cut down on drug use or trafficking and will cost great amounts of money. 

So what do you think? Are mandatory minimums a good idea? Frankly, I have mixed feeling about them myself. 

Perhaps some minimum fines for regulatory offences might be a good idea - like Ontario's mandatory minimum fine for driving without auto insurance which ensures that the cost of the fine is not cheaper than the cost of the insurance. And certainly for the most serious of offences and offenders - murder being the best example - a certain degree of denunication and incapacitation will always be required through mandatory minimums. But if, as is quoted in the Library of Parliament's Summary, "despite 25 years of harsh mandatory minimums, disproportionate numbers of the poor, the young, minorities and the drug addicted have been thrown in US jails with no impact on the drug business itself, which has flourished," then what's the point in these minimums? That we can all feel good that "bad" people are getting their just desserts?

Friday, August 5, 2011

Can an Environmental Protection Act Prohibit All Conduct That Makes Others Uncomfortable?

New blog. New law practice. Not especially new environmental protection challenges.

Almost twenty years ago, Justice LaForest of the Supreme Court of Canada wrote in Friends of the Old Man River Society v. Canada, [1992] 1 S.C.R. 3:
"The protection of the environment has become one of the major challenges of our time. To respond to this challenge, governments and international organizations have been engaged in the creation of a wide variety of legislative schemes and administrative structures.  In Canada, both the federal and provincial governments have established Departments of the Environment, which have been in place for about twenty years."  
That "wide variety" is what created that discipline of "environmental law." Twenty years before Old Man River, there were lawyers who occasionally had something to do with the environment, but it would have been rare for any of them to call themselves "environmental lawyers." There still aren't many of us.

Fast forward twenty years. What's changed and what's the same? Lots more environmental regulations now on the books. Pretty much everyone still agrees protecting the environment is a good thing. And other than for voluntary "green" initiatives, there still really aren't all that many tools available except for the relatively inexpensive passing of a myriad of laws and regulations (thus the growing stack of regs),  and the relatively expensive enforcement of those laws (thus the debate about whether or not things on the ground have actually improved).

Where agreement starts to break down is in how broadly those laws should be worded, and to what degree that wording is consistent with overall legislative purposes. In an ideal world, all we'd need are two word environmental protection laws: "DON'T POLLUTE." Thus if what you're doing isn't pollution, you could keep doing it - at least from an environmental perspective - and if it is pollution, you'd have to stop voluntarily, or be made to stop.

But alas, we don't live in such a world. Despite its pithy main purpose of "to contribute to sustainable development through pollution prevention," the Canadian Environmental Protection Act, 1999 (CEPA) is 356 sections and 253 pages long; the Alberta Environmental Protection and Enhancement Act (EPAA) states its purpose as "to support and promote the protection, enhancement and wise use of the environment" and does manage at least to be about 100 sections and pages shorter than CEPA; the Ontario Environmental Protection Act (EPA) has a scant 196 sections, and says most simply that its purpose is "to provide for the protection and conservation of the natural environment," but still comes in at 217 pages. I know size isn't everything, but wordiness obscures clarity, regardless of whether it's at a dinner party or in legislation (and no, I don't want anyone commenting on the length of this post).

My personal frustration back when I was a Federal Environmental Prosecutor was one shared by others working in the enforcement field: narrowly defined regulations which explicitly prohibited the release of a few substances or the damaging of particular parts of the environment (like fish habitat), combined with an Everest-topping burden of proof beyond a reasonable doubt, combined to make many an environmental prosecution unviable. By saying essentially: "nothing is pollution, except this stuff," it became difficult to go after harmful conduct that hadn't been regulated in minute detail.

But some environmental legislation goes to the other extreme, essentially prohibiting in a vague way all conduct that might have some kind of adverse affect on the environment. Now I know there is an argument to be made that everything we humans do could at a stretch amount to "pollution." But the difficulty is that in prohibiting everything, in a sense you are prohibiting nothing, and you certainly aren't offering clear direction to your citizens about what they can and can't do.

For instance, s. 15 of the Ontario EPA instructs: "Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events [and] the discharge causes or is likely to cause an adverse effect." No problem, you think, surely they must have some list of contaminants and adverse effects so that the public can know what amounts to pollution? Think again.

The only direction the EPA provides is that: "'contaminant' means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect" and "'adverse effect' means one or more of,
(a) impairment of the quality of the natural environment for any use that can be made of it,(b) injury or damage to property or to plant or animal life,
(c) harm or material discomfort to any person,
(d) an adverse effect on the health of any person,
(e) impairment of the safety of any person,
(f) rendering any property or plant or animal life unfit for human use,
(g) loss of enjoyment of normal use of property, and
(h) interference with the normal conduct of business."
So could a person passing gas which causes olfactory discomfort to another person constitute an offence? From the way the EPA is worded, it seems possible. Environmental lawyer Diane Saxe thinks "a refrigerator falling off the back of a truck and hitting a passing car" might be captured by the EPA, and asks why it would bother itself with such unfortunate but unenvironmental events.

The Alberta EPPA offers a more concise definition surrounding pollution: "'adverse effect' means impairment of or damage to the environment, human health or safety or property" and creates its discharge offence threshold at "significant adverse effect." True, one doesn't want endless fights over what is and isn't significant along the lines of - "only 2 deaths, well that's hardly significant!" - but at least it engages the law beyond the point of mild discomfort from flatulence.

In November of this year the Ontario Court of Appeal will be hearing arguments in R. v. Castonguay Blasting, due to the Court rejecting the Crown's argument that "the Crown will simply not prosecute in absurd circumstances that were not intended to be captured by s. 15 of the EPA." The court expressed strong views (for a court) on the subject:
"I disagree. In my view the relative breadth of the duty to report is an issue that is potentially relevant to a broad range of activities beyond blasting. Moreover, the duty to report is a proactive duty imposed on members of the public requiring direction from the statute as interpreted by the court, as to when this duty will be triggered. The respondent’s suggestion of an after-the-fact prosecutorial discretion would not provide adequate guidance to members of the public on how they can meet the regulatory requirements of the EPA. In other words, if a member of the public makes a conscious decision not to report on the assumption that the ministry would view the incident as inconsequential and that decision differed ultimately from the subjective assessment of the crown, that person would only learn of this when they were charged. This approach is unacceptable. The public must be able to make a more informed decision as to their obligation to report. I cannot accede to the respondent’s contention that prosecutorial discretion alone is a sufficient answer to any uncertainty in the scope of the duty to report. The interpretation of the duty to report is thus an issue with great importance to the public."
Stay tuned for the result, likely due sometime in early 2012. The court still won't likely tell us what is and isn't pollution - and really that's the job of our legislators anyway - but hopefully will clarify that everything we do that adversely affects someone else doesn't lead to an environmental offence.