About the App Last week, Prime Minister (“PM”) Trudeau announced there will be a voluntary nationwide contact tracing app coming soon. According to the PM, this app will alert Canadians if they’ve come into contact with someone who tested positive for COVID-19. Ontario will be the first to get this app on July 2. The government emphasizes that it will be important to use during the potential second wave as the Canadian economy slowly enters reopening. How it works? People who test positive upload their results anonymously COVID Alert, the app, using a temporary code that is given to them by a healthcare provider. Using bluetooth technology, the phone records and stores all app users that have come into close contact. If an individual has tested positive, they anonymously upload their results to the app. The app would then notify all close-contacts and may direct them to self-isolate for up to 14 days. The information that is uploaded will then be shared with other users to see if they have been near someone who has tested positive. How anonymous is anonymous? Although the app uses bluetooth technology, privacy remains a concern. Could uses be tracked using bluetooth identifiers? App Specifics from the Government The government considers this app to be low maintenance, as it runs in the background, uses bluetooth, no geotagging or location services of any sort. The federal Privacy Commissioner worked on the app, in an effort to connect cases and better document the spread of the virus. The intellectual property rights for the app will be granted to the federal government. Although healthcare falls within provincial jurisdiction, the pandemic is a national emergency and concern which has led to the federal government playing an increasing role in healthcare. The development and ownership of the app are the federal government’s intellectual property. What are Tech Companies Doing about this? Google and Apple have been limited to creating one COVID tracking app per country. I find this to be helpful as information is synced on one platform for all users in that nation. This provides streamlining the information. There are issues regarding syncing app information with that which exists through Alberta’s pre-existing app. Although this restriction creates a limited marketplace which forces individuals to use one app, I would consider this app to be synonymous with Amber Alerts on our phones, as opposed to multiple GPS app options. What are other nations doing? Many countries across the globe introduced COVID-19 tracking apps to their population post March 2020. While in some countries these apps are voluntary to download (Australia, Japan, and Germany), other countries (India, South Korea) mandated their citizens to download the app. The goal of the app, reiterated by governments, is to track those who have the virus and where they’ve been to caution close contacts and the general public from visiting hotspots. Is this democratic? These are questions that come to mind. The world we live in today people already voluntarily gives out a lot of personal information through cookies, accepting terms and agreements without reading them, and through the usage of social media to store our ideas into the virtual space forever. What makes this app different? Well we’re downloading something onto our device, what would it have access to? In Alberta, the COVID app, ABTrace Together, uses bluetooth as opposed to wifi, and it doesn’t require a phone number or name to be associated with the mobile phone itself. It differs from Australia where it is mandatory to provide these personal characteristics (but the information is said to be stored for only 21 days). In Italy, the app deletes information by the end of the year while keeping it anonymous. The right to delete the data when this pandemic is over, is an important factor to consider. There is a concern of how effectively the centralized system can dispose of personal data, and if users can verify that it has been done. Can an argument be made that this is for the public good? I would agree that this app would be important in knowing where an individual who contracted COVID has visited to ensure that others get tested. But would this be a way to outcast individuals from society and where is this information going to be stored? Can it be used to prejudice individuals from opportunities (e.g. access to medical information for employers, which is something that is currently still protected in Ontario that we aren’t required to share our medical history, decreasing a ground that we cannot be discriminated against). At the start of this pandemic, we have seen that Asian-Canadians experienced more racism. This app is a double edged sword - while it provides the benefit of protecting public health, it can also alienate & amplify stereotypes. Data in this society is crucial. Especially with big data analytics being on the rise. Companies profit from selling information about consumer preferences. So where does this app come in? Data has no boundaries, so can this app be considered domestic or can the data be stored across the world? The threat of IP theft continues as the cyber spy agency warns that foreigners could try to steal intellectual property from Canadians as being guise as COVID-19 relief impacts. My Opinion The fact that this app is voluntary will create a disparity in the results. Evidently, governments should not have authority over what the population should download on their phones. Pierre Trudeau’s comment “There's no place for the state in the bedrooms of the nation” could be updated to say that the state has no place in the cellphones of individuals. However, with the implementation of a voluntary contact tracing app, there needs to be significant uptake for the data to be representative and effective. I do think not everyone who tests positive will be uploading their results in fear that the information will come back to haunt them later in life. I also am skeptical to see how many people will download the app, will it be one person per household or everyone in it? My guess is that there will be very limited usage but that is just an observation based on the individuals I’ve spoken to. This app seems like it could disenfranchise individuals through the government having control over health related data via technology. Primarily, my concern is with data storage. These apps are being developed by Apple and Google. Although it is voluntary, low maintenance and requires little battery, there is a lot on the line. Storing information as such on a grand scale is different from the Health apps that people usually use to track their fitness. This app is one that relates to illness and I don’t know if our world can handle open data about one’s health without having all the answers. By: Karen Randhawa The tragic death of George Floyd has sparked many questions around how our social infrastructure can better destroy systemic barriers that have long excluded Indigenous and Black communities. While many solutions hinge on restructuring our policing regime, lawyers and judges alike have a significant responsibility in improving the treatment of Black and Indigenous offenders in our criminal justice system. Disproportionate incarceration rates remain a well-documented and distressing reality for visible minorities. Even though Indigenous people only represent 4.9% of the total Canadian population, they made up nearly 24% of the federal offender population in 2018. Likewise, only 3.5% of the Canadian population identify as Black, but data reveals that 7.3% of the federal offender population is Black. [1] Since media outlets have greatly emphasized the happenings in the US, it is easy to deny that systemic racism persists on Canadian soil. Ontario Premier Doug Ford recently stated Canada does not have the same ‘systemic, deeps roots’ of racism as the United States. Although he has since detracted from this statement, it is important to recognize that Canada, like its neighbour down south, was built on ideologies of white supremacy. [2] From enslaving nearly 3,000 people of African ancestry between 1628-1800s to instituting residential schools to take 150,000 First nations, Inuit and Métis children from their families, Canada is no different than the US. [3] Systemic racism is a complex and multidimensional issue that affects the everyday life of people of colour. As such, our governments must develop tailored solutions aimed at demolishing racial barriers in the economic, political and social spheres. Reforms to the criminal justice system is only the tip of the iceberg. The Impact of Gladue Reports on Indigenous Offenders R v Gladue (1999) was a milestone decision that reinforced the restorative principles of sentencing codified under s.718.2 of the Criminal Code (CC). In a nutshell, the accused, an aboriginal woman, pled guilty to manslaughter for the killing of her common law husband, following a violent dispute. The judge sentenced the accused to three years imprisonment, concluding that the offence very serious. The accused appealed on the grounds that the sentence was inappropriate. Both the British Columbia Court of Appeal and the Supreme Court (SCC) dismissed the appeal. The issue in the appeal to the SCC concerned the proper interpretation and application of s.718.2(e) of the CC. The provision reads: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The accused argued that the judge at first instance failed to consider factors that may have led to the offence. The SCC rejected the argument. Justice Cory and Iacobucci, for the majority, concluded that the judge had accurately contemplated mitigating and aggravating factors. Mitigating factors included the fact that the appellant was only 20 years old at the time of sentence, that she was a mother of two and expecting a third. On the other hand, the trial judge acknowledged several aggravating circumstances. The accused had stabbed the deceased twice and made remarks after the stabbing insinuating that she had intended to cause serious harm. As a result of the SCC decision, s.718.2(e) requires “both consideration of alternatives to the use of imprisonment as a penal sanction generally, which amounts to a restraint in the resort to imprisonment as a sentence, and recognition by the sentencing judge of the unique circumstances of aboriginal offenders” (para 38). This evolved into what is known as Gladue reports. In essence, these pre-sentencing reports call upon judges to apply an alternate sentencing method that accounts for the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender to court (R v Ipeelee). They are often prepared by Gladue caseworkers at the request of the defence counsel, the Crown or the sentencing judge. It is important to note, that R v Ipeelee established that an accused does not have to show a causal link between their Indigenous background and the offence committed. Gladue reports can include information about the Aboriginal offender’s history with residential schools, child welfare removal, physical or sexual abuse and any underlying health issues. Gladue reports, however, have received an immense backlash since the SCC’s decision. The overrepresentation of Indigenous offenders has been ever increasing. Between 2013 and 2018, the Indigenous population within Canadian correctional facilities has increased by 14.7%. [4] A 2008 study conducted by Welsh and Ogloff found that the s.718.2(e) interpretation “underestimated the true complexity of the over-representation problem”, finding that Indigenous status alone has little influence on sentencing decisions. The study concluded that sentencing decisions placed an emphasis on the aggravating and mitigating factors (such as offence seriousness and prior criminal history), rather than factors specific to Indigenous communities.[5] Therefore, the Gladue decision requires that sentencing decisions must sufficiently delve into the cumulative effects of colonialism and its ongoing legacy within the criminal justice system. Courts must attempt to reject Western perspectives on the purpose of criminal justice, in favour of processes that rebuild Indigenous communities and respond to the broader question of reconciliation. With this shift in perspective, Gladue reports can become an effective tool during sentencing hearings. Gladue and Black Offenders Although, Black and Indigenous communities do not share the same history, there is no doubt that both communities have relentlessly endured systemic discrimination and remain ostracized today. As such, in my opinion, the criminal justice framework must extend Gladue principles to members of the Black community, when making sentencing decisions. This approach was recently applied in R v Morris, whereby Justice Nakatsuru allowed evidence in regard to the Black accused’s personal circumstances. In brief, a jury had found Mr. Morris guilty of a number of offences, including possession of an unauthorized firearm, possession of a prohibited firearm with ammunition, and carrying a concealed weapon. Mr. Morris was arrested in December 2014, when the police received a call about a home invasion in Scarborough. The accused, along with three other young men, were stopped at a nearby parking lot by officers in plainclothes and unmarked police cars. Mr. Morris proceeded to run, eventually colliding with a police officer’s vehicle. He continued to run and was later found outside a grocery store. The police found a loaded revolver in his jacket, hidden at the bottom of a stairwell. While sentences for gun offences tend to be three or more years, the defence argued that the sentence should be one year. Justice Nakatsuru reiterated that sentencing was a “very individual process”. He concluded that s.718.2(e) enabled judges to consider the social context of Black Canadians as well. In his judgment, Nakatsuru acknowledged that systemic factors such as “the history of colonialism, slavery, policies and practices of segregation, intergenerational trauma, and both overt and systemic racism that continue to affect Black Canadians” (para 9). The decision hinged on two reports brought by the defence. First, a report on anti-black racism in Canada generally, highlighting the experiences of Black Canadians within the Toronto region. Second, the judge admitted evidence about the social history of the accused, from a social worker. He placed an emphasis on admitting such evidence during sentencing hearings, in light of the overrepresentation of Black offenders in Canada. This is vital since the goal is to arrive at a fit and proportionate sentence. The more I know about you and your crimes, the better can I arrive at such a fit sentence. This is particularly important when it comes to tackling the problem of the disproportionate imprisonment of Black offenders. If we cannot have resort to such materials, we will never begin to do better. As a result, Mr. Morris was sentenced to one year imprisonment.
I couldn’t agree more with the decision rendered by Justice Nakatsuru. I believe that judges and lawyers have a duty to recognize that Black and Indigenous persons continue to bear the burden of our criminal justice system. Broadening the interpretation of s.718.2(e) to include Black offenders is only one solution to high incarceration rates amongst marginalized communities. Since the decision was rendered at the Ontario Superior Court of Justice, the decision is deemed to only be persuasive precedent. The SCC has yet to rule on the admissibility of background evidence for other minority groups and the broadened interpretation of s.718.2(e). Nonetheless, the federal government must codify this interpretation to guarantee a consistent and equitable approach to sentencing of Black offenders. By Lucinda Chitapain When the news broke out about the R v Chan & R v Sullivan appeals, I was furious to say the least. I could not believe that the Ontario Court of Appeal (ONCA) would set back the women/children’s rights movement by enabling defendants to use intoxication as a defence to sexual assault. However, these cases were not about sexual assaults & the rulings were more complicated than what was depicted by news outlets. What happened here is just another example of irresponsible media reporting - one that I, like the rest of Ontario, fell victim to. After coming to this realization (largely owing to Stephanie Guiseppe’s tweets & our in-house crim law expert, Samantha Heggart), I knew I had to write on this to clarify what the decisions are actually about. If a person like me, who is more informed about criminal law than the layperson, could be misled about the impact of Chan and Sullivan on the law then I can only imagine how many others are still mistaken. Automatism Before getting into the details of the cases, a quick crash course on the not criminally responsible (NCR) regime in Canada will help situate the discussion on Chan and Sullivan. Matt C. Zaitchik, PhD, states that the “term automatism refers to motor behavior that is automatic, undirected, and not consciously controlled.” Under the NCR regime, there are two types of automatism - mental disorder (MD) automatism and non-mental disorder (NMD) automatism. A defence of MD automatism negates the mens rea element as the defendant could not appreciate the consequences of their actions owing to their mental disorder. A defence of NMD automatism nullifies the actus reus element by proving that the actions of the defendant were not voluntary. There are two subbranches in NMD - insane automatism, when the state of involuntariness is brought on by a mental disorder and non-insane automatism, when there is an external trigger causing the automatism. Both Chan and Sullivan are trying to raise a defence of non-insane automatism. There is a preference for raising a NMD defence. While three dispositions are available for a successful MD defence - absolute discharge, conditional discharge or detention in a psychiatric facility, a successful NMD defence results in an acquittal. At the trial level Thomas Chan was under the influence of magic mushrooms when he attacked his father and his father’s partner, Lynn Witteveen. His father died from the attack and Ms. Witteveen suffered severe injuries. Chan was charged with murder and attempted murder. David Sullivan was an addict of the prescription drug, Wellbutrin. He overdosed on the drug in a suicide attempt. Instead, the drug propelled him into a state of automatism in which he stabbed his mother repeatedly. At court, Chan first tried to raise a defence under section 16 of the Criminal Code, claiming that he could not be held criminally responsible for an act committed while suffering from a mental disorder. Justice Boswell of the Ontario Superior Court of Justice (OSCJ) rejected this defence because at the time of the offence, Chan was in a state of toxic psychosis, not a mental disorder. Afterwards, Chan applied for an order to get section 33.1 of the Code struck down on the basis that it violated s.7 and s.11(d) of the Charter. Section 33.1 of the Criminal Code was enacted in 1995 as Parliament’s response to the Daviault decision. In Daviault, the defendant was an alcoholic who sexually assaulted an elderly and disabled woman after becoming extremely intoxicated. The Supreme Court of Canada (SCC) found that there is an exception to the prohibition of using self-intoxication as a defence to general intent crimes per Leary v The Queen (1978). Jordan Gold from Robichaud’s explains the distinction between crimes of general intent and specific intent well. Gold stated that while specific intent crimes require a high level of intentionality, for crimes of general intent “the court will presume that a person intends the direct consequences of their actions.” Sexual assault is a crime of general intent. The SCC held that a person cannot be held criminally responsible if they can prove, on a balance of probabilities, that their self-intoxication placed them in a state of automatism, a state of absent awareness. In such a state, they cannot satisfy the voluntariness element of the actus reus. Chan challenged the constitutionality of section 33.1, an extremely controversial provision. He had two arguments to support this contention. First, the court should bind itself to its former ruling in R v Dunn. In Dunn, the ONSJ implied that section 33.1 was unconstitutional. The rules of stare decisis however state that courts are only bound by decisions of higher level courts, even though decisions of courts of similar status or the same court can be persuasive. Second, Chan argued that the current court should strike the section down for being unconstitutional vis-a-vis his section 7 right to life, liberty and security of the person and his section 11(d) right to full answer and defence. Justice Boswell found that while section 33.1 does breach these constitutional rights, the section is saved by section 1. Sullivan first attempted to argue that section 33.1 did not apply to him because his intoxication was not voluntary - he ingested the drug in a suicide attempt, not to get high. After the court rejected his argument, he moved forward with an argument similar to that of Chan’s. Ontario Court of Appeal Given the similarities between these two cases, two men who became “automatons” after ingesting psychedelic drugs, committed violent crimes and are now challenging their convictions on the basis that section 33.1 unconstitutionally deprives them of the non-mental disorder automatism defence, the appeals were heard together. The ONCA, in a 3-0 decision, struck down section 33.1. In establishing the prima facie breach of Charter rights, the court identified three infringements: the voluntariness breach, the improper substitution breach and the mens rea breach. The voluntariness breach had been discussed previously. The improper substitution breach of section 11(d) refers to section 33.1 substituting voluntary intoxication for the mens rea element - it presumes that if someone voluntarily gets drunk/high and commits a crime, then they satisfy the mental requirement. This in violation of a defendant’s section 11(d) right to be presumed innocent until proven guilty. In R v Creighton, the constitutional minimum of fault level for criminal offences is penal negligence which is a “marked departure from the standard of a reasonable person.” While the Crown purported that section 33.1 meets this minimum stand of penal negligence, it is difficult to establish foreseeability between voluntary intoxication and violence. In reevaluating section 33.1 with the Oakes test, the ONCA came to the conclusion that the law fails at minimal impairment and proportionality. Lessons learned This incident has been an eye opening experience. It is clear that regardless of how reputable a news outlet may be, critical reading and research are musts. Although the decision can impact sexual assault cases, as automatism triggered by self-intoxication is now a valid defence, the defence of automatism is rarely raised and even more rarely is successful. You can read the decision here: https://www.ontariocourts.ca/decisions/2020/2020ONCA0333.htm By: Veena Ganesarasa
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