All Bets Are Off: Free Expression Trumps Privacy in Supreme Court Picketing Case

When we think of picket lines, we don’t usually think of photographs and video surveillance, but these can be essential weapons on both sides of a labour dispute. In a decision released last month, the Supreme Court of Canada recognized the importance of photo and video surveillance on picket lines – and for unions, at least, made it a constitutional right.

All Bets Are Off

The dispute in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 began when several individuals discovered that they had been photographed and videotaped when they crossed a picket line to get to a casino. One of the individuals was the Vice-President of the casino, whose photo was taken by his striking employees and then printed on various union posters, newsletters and leaflets with “captions intended to be humorous.”

(The Supreme Court doesn’t tell us what those captions were, but I like to imagine that they were casino- and strike-related puns – “cash out or all bets are off,” “if you want a full house you’d better up the ante,” “give management the royal flush,” that sort of thing. They were probably much more banal than that, but a boy can dream.)

Anyway, the individuals complained to the Alberta Privacy Commissioner, who administers a law called the Personal Information Protection Act (“PIPA”). PIPA, like similar legislation in B.C., Quebec and the federal jurisdiction, is meant to protect privacy in an age of computers and smartphones, but the Alberta version is particularly broad. Subject to some exceptions and exemptions, PIPA prevents the collection, use and disclosure of any information about an identifiable person, by any organization, for almost any purpose. Videotaping and photographing people who try to cross a picket line is, according to the Privacy Commissioner, right out.

The union challenged the Privacy Commissioner’s decision before the Alberta Court of Queen’s Bench on the basis that PIPA was unconstitutional, because it interfered with the union’s freedom of expression. That was the dispute that worked its way up to the Supreme Court of Canada.

Express Picketing

The first question the Supreme Court had to answer was whether the union’s activities were protected by the constitutional guarantee of freedom of expression. I found it interesting that all of the parties conceded this. It’s not quite as clear to me.

Obviously, picketing is a form of expression. One of the most important purposes of picketing is to raise public awareness of the issues underlying a strike. Another is to convince the public to support the strike and by getting their goods and services elsewhere. These are fundamental parts of free expression. What about taking somebody else’s picture, though? Certainly the uses that the union made of the Vice-President’s photo were expressive, since it became part of the union’s newsletters and leaflets. But why should taking the photo, in and of itself, be protected under freedom of expression? Why should the union have a constitutional right to take photos of the other two complainants, which it apparently never used?

The Supreme Court’s answer was that one of primary purposes in taking the photos and videos was to persuade people not to cross the picket line. Since it was meant to persuade, it was expressive activity. The Supreme Court seems to be saying that since picketing itself is expressive, tactics that make the picket line more effective – by deterring people from crossing it – will also be expressive.

I have to admit I have an issue with that reasoning. I would have thought that the activity itself, taking the photograph or video, would need to be expressive in order to be protected. At least it would need to be essential to expressive activity like picketing, not just something that makes picketing more effective. But since none of the parties disputed it, and the Supreme Court accepted it, let’s move on.

A Fine Balance

The fundamental question that the Court grappled with was how to balance the picketers’ right to free expression against the privacy rights of individuals who crossed the picket line. The Court recognized the important benefits of PIPA, but ultimately found that they were trumped by free expression.

The Court seems to have focused on just how extremely broad PIPA is in general, rather than on the narrow issue of photographing and videotaping. “What is of the utmost significance in our view,” the Court found, “is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.” No doubt that is true. PIPA would have prohibited not just the collection of people’s images (i.e. the taking of photographs and videos), but also their use in ways that are both expressive and important to picketing: among other things, the newsletters and leaflets already discussed; raising awareness of the picketing online; and persuading police, the public, and if necessary the courts that no improper behaviour took place.

The Court, however, keeps going back to the importance to a picket line of persuading people not to cross it. That is where I still find the decision a bit problematic. Not that I am against picketing – it’s essential to our labour law system – and not that I am against unions trying to persuade people not to cross a picket line, which is important to their ability to mount an effective strike. But here we are weighing other rights in the balance. If privacy violations were necessary in order for unions to picket at all, that would be one thing, but it’s quite different to say that privacy rights should be outweighed merely because the union wishes to use a particular tactic that helps to make picketing somewhat more effective.

What About Employers?

The fact is, employers use picket line surveillance far more often than unions do. The primary purposes on the employer side are to deter violence and property damage and to collect evidence that can be used in legal proceedings, such as injunction proceedings to stop or limit picketing. Despite the pro-surveillance outcome of the case, though, employers will not have much to get excited about. Since the Supreme Court’s main concern was the importance of photographs and videotapes to picketing, the decision is unlikely to assist employers who wish to photograph and videotape picket lines in order to limit picketing.

The Bottom Line

As much as I’ve criticized the Court’s decision here, I actually believe that unions and employers should be permitted to photograph and videotape picket lines. Picket lines are tense, emotions run high, and it is important for both parties to be able to collect the best evidence of what has happened there in the event of a legal challenge. People who march on a picket line, let alone people who cross one, should know that they are in a public place where their privacy can’t be guaranteed. Furthermore, a lot of the union’s reasons for taking photos and videos, which the Supreme Court summarized, are legitimate and probably do make good labour relations sense.

What I’m not certain about is whether this should be a constitutional right, as the Supreme Court found. I’m not certain that a government that chooses for policy reasons to put privacy rights first in this situation should be unable to do so, even if it’s not the policy choice I would personally make.

Ultimately, the Supreme Court struck down PIPA but allowed it to remain in force for 12 months to give the Alberta government an opportunity to amend it. Hopefully, the government will be able to strike an appropriate balance between privacy, labour rights and freedom of expression going forward.

On Remembrance and Sacrifice

In the weeks leading up to Remembrance Day (Veterans Day in the United States), the traditional debates have begun cropping up online. They tend to centre on whether we should wear the red poppy in remembrance, but beneath fashion choices lies the deeper question: can we commemorate veterans, without venerating war?

To me, perhaps because of my upbringing or my leanings as a historian, Remembrance Day has never carried with it the celebration of war that so many attribute to it, for a simple (and probably too simplistic) reason. Remembrance Day originated to mark the anniversary of the armistice agreement which ended the most horrific war in human history, World War I. The armistice came into effect at 11:00 a.m. on November 11, 1918.  To me, Remembrance Day — and its indelible symbol, the red poppy — have always been about exploring the vantage point of a war just ending, when we finally have the opportunity to pause and take stock of all that has happened. If there is any celebration at all in the day, it is in the bloodshed having ended, in the hope for peace for future generations. Those hopes are tempered, of course, by the horror of war that can only truly hit us once it is over — by mourning all those who sacrificed, military and civilian alike.

I realize that is not what the red poppy means to everybody, and that some find it difficult to see the poppy, or Remembrance Day itself, as a symbol of peace. To be fair, both the symbol and the day have elements of praise and honour for the soldier, which implicitly include honour for what the soldier does. But even that, for me, is far from sufficient to make us turn our backs on the day, or on the poppy. War is terrible, but I have never been able to deny the crucial role that a soldier can play. Perhaps it is the classically overused example, but remembering my grandparents’ experience in the Holocaust is all the proof I need that war, though horrific, can be necessary.

Not, of course, that any of the Allied powers fought World War II to save Jews, just like the Vietnamese didn’t really invade Pol Pot’s Cambodia to save the Cambodians, and the North didn’t really fight the American Civil War to free slaves. But I find it hard to deny that war can have just results, in the right circumstances.

Against those examples are wars like Vietnam and Iraq, but it’s easy for us as Canadians to feel self-righteous about those, since our elected leaders were wise enough to keep us out of them. How might we feel if our fathers or our friends had fought there? The better example is the one that started Remembrance Day in the first place, World War I. It was, without a doubt, the most senseless waste of human life in history, 10 million military and 7 million civilian dead for no reason beyond nationalism and colonial ambition. It’s staggering, mind-numbing, to believe that humans ever descended to it. What’s more, it’s not even like the collective horror of the bloodshed shocked Europe into ensuring that it wouldn’t be repeated. Indeed, the French Marshall Ferdinand Foch was disturbingly prophetic when he derided the treaty that ended the Great War as nothing more than a 20-year armistice. The Treaty of Versailles, of course, was signed in 1919, exactly 20 years before Nazi Germany invaded Poland to launch World War II.

That senseless horror has always fascinated me about World War I, that question of how human beings were able to kill so many for so little reason. It’s why, as I sat down to write an alternate-world novel, I decided to set it during a World War I-style conflict. My book is told from the point of view of a pacifist politician trying to end the war, and neither Deugan nor Brealand, the fictional countries who are the main combatants, can be said to be the “bad guys” in the story. The true antagonist is the war itself, and all of the forces on both sides that conspire to keep people fighting. It’s a different perspective from most war stories, and to me, World War I is the quintessential war in which to tell it.

Yet I still don’t find the answers easy. Despite the enormous costs of war, peace too has a price, and that is what my novel explores. As early as the third chapter, the hero asks one of her country’s most respected generals whether peace is one of his values. He replies that it is not: while he certainly wants peace, “some things are worth fighting for.” Thus begins one of the conflicts that drives the story. As it continues, our hero’s idealism is tested, and we see just how much she is prepared to sacrifice for the cause of peace.

That, ultimately, is what Remembrance Day and the poppy are about: the sacrifices that have been made, for better or for worse, in the hopes that peace will follow. It is a commemoration of peace, not war. It is a day we should not celebrate, but we should commemorate. We should remember it, mourn it, and, if at all possible, learn from it.

Asleep at the Switch: Can you fire a worker for sleeping on the job?

Can a unionized employer – a municipal government, say – fire a worker for sleeping on the job?

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

 

Public Displays of Exhaustion

As you probably already know if you live in Toronto, a few weeks ago a city employee was found head down on desk, office door wide open, fast asleep.

The reason you already know this is that a city councillor, Georgio Mammoliti, decided that it would be a good idea to send a photograph of the sleeping worker directly to the press. This is not, I hasten to add, what my field refers to as a human resources solution.

Mayor Rob Ford has also weighed inpun intended – with the opinion that not only should the worker be fired for sleeping on the job, but that his or her supervisor should be, too.

I can’t give advice the City of Toronto on any particular case, of course, and in this particular case, there are far too many unknowns to even try. But surely I can say that a worker in any industry who is photographed sleeping on the job deserves to be fired, right?

Well . . . maybe not.

Premeditated Sleeping

Judging by the volume of case law on the subject, sleeping on the job happens surprisingly often in Canadian workplaces. Indeed, there are so many cases that an exhaustive survey would be impossible, even though I am limiting my review to labour arbitration cases from unionized workplaces rather than drifting off into the non-union world. For the purposes of this post, however, I’ll just run through a few decisions, to make sure your eyes aren’t closed to the legal principles involved.

First, the case law draws an important distinction between deliberate and accidental sleeping. No, I am not making that up. Take it from the respected labour arbitrator William Marcotte in the 2006 decision of Lecours Lumber Co.:

As can be seen from the above cases, an important consideration for purposes of determining the appropriateness of disciplinary discharge is whether or not the employee deliberately intended to sleep on the job. Where there is found to be such intention, “arbitrators tend to regard situations where employees are found to be deliberately sleeping as justifying discharge.” . . . Certain circumstances surrounding an incident of sleeping on the job have led arbitrators to find that the act was premeditated.

That’s right. Sleeping on the job won’t necessarily get you fired, but my new favourite phrase –  “premeditated sleeping” – probably will.

What are the circumstances that will give rise to a finding of “premeditated sleeping”? Arbitrator Grey’s 1999 decision in Stelco gives a particularly vivid description:

When Mr. MacDonald arrived at CO13 at about 4:30 a.m., much of the area was in darkness. Messrs. Gilkinson and Kennedy were in a workshop next to the lunchroom. The lights in the workshop were turned off. Mr. Gilkinson was lying prone on an inflated air mattress positioned on top of a picnic table, asleep. His boots were off. His head was on the pillow portion of the mattress. Mr. Kennedy was also asleep, lying prone on a chaise lounge liner laid out on top of a workbench. His boots were off. His head was on a pillow of rags. Mr. Earle was in the lunch room adjoining the workshop where Messrs. Gilkinson and Kennedy were sleeping. He was asleep, lying prone directly on a picnic bench. He was wearing his boots. The lights in the lunchroom room were off.

There was an alarm clock in that room set for 5:50 a.m. (Those who relieve night shift electricians would arrive between 6:15 a.m. and 6:30 a.m.) Mr. Van Mol was in an office down the hall from the area where the others were sleeping, the office where the drive files and computer terminal were located. He was asleep, lying or reclining on top of a desk, covered with a winter coat. His boots were off. The office lights were turned off. The office door was locked. Mr. MacDonald found him there when he used his key to enter the office to consult the drive files and use the computer terminal.

Ironically, the fact that our City of Toronto worker was photographed, head down on desk, makes it less likely that he or she can be fired for it. If this had been a case of premeditated sleeping, the worker probably would have found a more comfortable position, or at least closed the door.

Accidentally in Slumber

 

Of course, employers are still entitled to sound an alarm when an employee is sleeping on the job accidentally. That is especially true when the employee’s job requires alertness for safety reasons, such as a crisis counsellor at a women’s shelter in one 1996 case, or another 1996 case in which the job title of the sleeping employee was – again, I am not making this up – Awake Night Staff. Arbitrators agree that workers who are found sleeping on the job deserve discipline. The question is whether they deserve to be fired.

The answer to that question will depend on a number of different factors. These include the employee’s seniority, past disciplinary record, explanation for sleeping (an employee who is taking medication that causes drowsiness might be treated very differently than an employee who simply stayed out too late at the bar the night before), whether the employee acknowledged wrongdoing and showed remorse, and whether the employee’s behaviour actually resulted in harm to the employer’s operations or reputation.

Thus, termination was upheld for the crisis counsellor at the women’s shelter, in light of the risks if he could not be trusted to remain alert. Termination was also upheld where an employee with two previous suspensions displayed a “lack of candour” and a “failure to acknowledge fault.” On the other hand, an arbitrator overturned a termination of employment for an employee with a clear disciplinary record who had taken active steps after the incident to make it less likely to be repeated. Another employee got to save his job since the sleeping incident was related to his diabetes and he clearly showed remorse.

Perchance to Dream

The fact is, we just don’t know any of these things about the city worker who has Councillor Mammoliti and Mayor Ford so wired up. That’s why it’s not appropriate for us to lie back and guess at whether this particular worker deserves to be fired – and why it’s not appropriate for city councillors to leak photographs of their own employees to the media before going through the internal investigation that would actually be required to put this issue to bed.

When it comes to the worker’s supervisor, chances are that he or she is not unionized, so the city could fire that person whenever it wanted. But the city would have to provide reasonable notice or pay in lieu, which, depending on the supervisor’s years of service, could add up to quite a large sum.

And if the Mayor believes that he can fire a supervisor for cause, and avoid paying him anything, just because one subordinate, on one occasion, was (literally) caught napping?

All I can say is, dream on.

Supreme Court of Canada will hear Right to Strike Case

I’m finally bringing this blog back to labour law, with the news that last Thursday, the Supreme Court of Canada granted leave to appeal a decision raising an interesting and timely question: does the Canadian Constitution protect the right to strike?

strike

Stock photo from http://www.sxc.hu/photo/1197558 . I wanted a better photo for this, but apparently searching “strike” gets you bowling pictures, and searching “picket” gets you fences.

Background: The Labour Trilogy, B.C. Health Services and Fraser

The Supreme Court decided three  cases on the issue back in 1987, which came to be known as the Labour Trilogy. The question in those cases was whether the guarantee of freedom of association in the Charter of Rights and Freedoms (Charter) included a constitutional right to collective bargaining and to strike. The answer was no, and that answer stood for 20 years.

Then, in 2007, the Supreme Court decided B.C. Health Services. In that case, the province of British Columbia introduced legislation that cancelled important terms of collective agreements in the health care sector, and said that no similar terms could be included in health care collective agreements in the future. In response, the Supreme Court overturned its own previous decisions in the Labour Trilogy and said that the Charter does protect collective bargaining. The Court explained that there’s not much use in having freedom of association, if the government can just pass a law which makes the very purpose of your association pointless. That was what the B.C. government did when it unilaterally cancelled important collective agreement terms. What was the point, then, of health care workers forming an association (a union) to bargain collectively?

What B.C. Health Services did not address was the right to strike. The Court deliberately refused to discuss that question.

Following B.C. Health Services, unions began a number of constitutional challenges to labour laws that they alleged interfered with the right to collective bargaining. The Supreme Court decided to weigh in again in Ontario v. Fraser, a 2011 decision about agricultural workers in Ontario, who are not covered by the Labour Relations Act. They have a separate legal regime which allows them to form associations and have those associations address their employers; the employers have an obligation to listen and respond. But there is no formal duty of collective bargaining, there is no duty to recognize the union as the exclusive representative of the workers, and other protections that most Ontario workers get are absent.

Fraser did not exactly change the law in B.C. Health Services — in fact, the Court was very careful to say that it was applying the principles from that earlier case — but it did clarify B.C. Health Services in a way that looked quite a lot like a retreat.  Fraser stressed that from a constitutional point of view, the right to collective bargaining is a derivative right: one that derives from the freedom of association. Therefore, you don’t necessarily get constitutional protection just because the government has interfered with collective bargaining. You only get constitutional protection if the government’s actions (or inaction) make meaningful association effectively impossible. For agricultural workers, since they can form associations and the employers must listen to what the associations say and respond in good faith, workers are able to form meaningful associations. That is good enough under the Charter. Again, however, the Supreme Court did not talk about the right to strike.

Saskatchewan Federation of Labour and the Right to Strike

In 2008, the government of the province of Saskatchewan passed the Public Sector Essential Services Act. It requires employers and unions in the public sector to agree on which of their services are essential, and which employees are required to maintain those services. Any employees who are required to provide essential services will have to continue working during a strike. However, if the employer and the union cannot agree, then the employer is allowed to just impose whatever essential services requirements it wishes. The union can challenge the number of employees who the employer says it needs for essential service, but it cannot challenge whether particular services or particular job classifications are essential.

The Saskatchewan Federation of Labour, along with several public sector trade unions and unionized employees, brought a constitutional challenge alleging that the Essential Services Act violated workers’ freedom of association by denying them the right to strike (along with a number of other challenges). The Saskatchewan Court of Queen’s Bench agreed, based on the principles in B.C. Health Services and Fraser. It found that strikes are integral parts of collective bargaining, so if the Charter protects collective bargaining, it must protect strikes as well.

That decision was overturned by the Saskatchewan Court of Appeal, on a fairly technical but still important ground. The old Labour Trilogy, the Court of Appeal said, found that the Charter does not protect the right to strike. B.C. Health Services and Fraser overturned the Labour Trilogy when it came to collective bargaining, but refused to discuss the right to strike. Therefore, when it comes to the right to strike, the Labour Trilogy is still a binding precedent from the Supreme Court of Canada. It was simply not open to the Saskatchewan courts to refuse to follow it. In the words of the Court of Appeal:

In short, any decision to overturn the Labour Trilogy must be left in the hands of the Supreme Court itself. This is what the doctrine of stare decisis [i.e., the rule of precedent] demands. It follows that the Essential Services Act cannot be struck down on the basis that it limits strike activity contrary to s. 2(d) of the Charter.

After that, how could the Supreme Court say no?

A New Labour Trilogy?

The Supreme Court’s decision last week to grant leave to appeal in Saskatchewan Federation of Labour follows on the heels of granting leave for two other labour law cases, both involving the Royal Canadian Mounted Police. They have never been permitted to unionize, but they have various systems where worker representatives get to participate in committees and councils which help determine their pay. The Ontario Court of Appeal and the Federal Court of Appeal each made recent decisions which denied the Mounties constitutional protection for these types of bargaining activities.

In fact, the Ontario Court of Appeal also found for the employers in two other labour law freedom of association cases in 2012. In those cases, the Supreme Court refused to grant leave to appeal. Our firm actually represented the employer in one of those cases, and I was heavily involved in preparing the arguments. It was an extremely interesting case, and very rewarding (and relieving) that we were successful. When the Supreme Court denied our opponents leave to appeal, we got the impression that the Court, having decided similar issues in 2007 and again in 2011, just didn’t see the need to revisit them so soon.

But now the two Mountie cases and the Saskatchewan Federation of Labour case will be heard by the Supreme Court of Canada in 2014. The Mountie cases are scheduled to be heard in February. It’s unlikely that Saskatchewan Federation of Labour will be ready quite that soon, but I wouldn’t be surprised if the Supreme Court waits until it can release all three decisions together as a new Labour Trilogy. Hopefully, it will be one that clarifies the law for a while, and avoids the volume of litigation on these issues that we’ve seen since B.C. Health Services and Fraser were decided.

“Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 2

Image

(Stock photo from http://www.sxc.hu/photo/1427863)

Happy Thanksgiving, everybody!

In Part 1 we talked about the basic principles of the common law legal system. We talked about the rule of precedent, that similar cases must be decided the same way. We also talked about how, if we don’t want a certain precedent to apply, we can try to “distinguish” it to show that it’s not actually similar to the current case. Then we ran through a couple of examples where it was pretty intuitive whether the current case was similar to, or distinguishable from, a case that we called the Cow Precedent.

But what if it’s not obvious? No two cases are ever going to be identical, so how do we know whether our case is different enough that the precedent will not apply to it? And if all cases are different from one another, how can we rely on precedents to build legal arguments?

Reasons

The first place to look is the reasons for the precedent decision. Judges normally provide reasons which set out the facts of the case, the law, and how the law applies to the facts to reach a conclusion. That usually gives lawyers most of the fodder they need.

For example, I recently argued a case where my opponent cited a well-known Supreme Court of Canada decision, which says that employers have a duty to treat employees fairly and in good faith in how they go about terminating (firing) them. Our case didn’t involve a termination, though. It involved a retirement. My opponent argued that shouldn’t matter. The Supreme Court was concerned with treating people fairly when their employment ends, and that’s the same regardless of whether it’s a termination or a retirement – in the lingo of Part 1, regardless of whether you’ve stolen a cow or a horse.

In order to distinguish it, I went to the Supreme Court’s reasons, and tried to show that the Court’s real concern was that having your employment terminated is a traumatic experience and leaves you vulnerable. Employees need extra protection in those circumstances. These concerns don’t arise, I argued, when you’re voluntarily choosing to retire. So the reasons for imposing a duty of good faith on the employer didn’t exist in our case. The Cow Precedent was distinguishable.

(Of course, I still spent most of my time arguing that my client, the employer, had acted fairly and in good faith. Arguing that you didn’t need to be fair is never going to play well, even if it’s legally accurate.)

That’s just a single example, but it shows how legal arguments work in practice. Both sides are trying to draw out a principle from the precedent case. For my opponent, the principle was, employers must treat employees fairly when their employment ends. For me, the principle was, employers must treat employees fairly when terminating them. Both of us pointed to quotes from the Supreme Court’s reasons to support our views of what the Court was really trying to say. And depending on what the Court was trying to say, the precedent either applies to our case, or it does not.

Compare and Contrast

Most of the time, though, you’re not just going to have the Cow Precedent. There are going to be multiple precedents, some which support one side, and others which support the other. What do you do then?

Believe it or not, this is actually the easier scenario, for the simple reason that you have more data points. If there is only one precedent, you have to really analyse its reasons to figure out what legal rule it is trying to create. Having multiple precedents makes this easier by allowing you to compare and contrast. I literally do that high-school-type analysis on a weekly basis. Applied to my field, it looks like: What do all the cases where the union wins have in common? What do all the cases where the employer wins have in common? What does that tell us about what the law is? And based on that analysis, what’s likely to happen in the current case?

Let’s go back the Cow Precedent, and remember how it was distinguished in the Jacket Case: in the Cow Precedent, the theft was deliberate, while in the Jacket Case, there was an honest mistake. It might be difficult to come up with any general principles based on either of these cases individually, but when you read both of them together, it’s obvious that there’s an important distinction between taking something that doesn’t belong to you deliberately and doing so accidentally. That principle, based on comparing and contrasting the precedents, is what you can apply in a future case.

Other Techniques

There are, of course, a number of other techniques in legal reasoning. Sometimes, when there is no precedent which applies (or when the only precedent is distinguishable, which, legally speaking, is the same thing), lawyers go back to first principles, the basic foundations of the legal system and our society. That’s what we all did in Part 1 when we instinctively knew that there should be no legal difference between stealing a cow and stealing a horse. Theft is inherently a violation of private property rights, and it really doesn’t matter what private property is being stolen.

But there have been cultures throughout history with little conception of private property, and there are also cultures who revere cows as sacred. It would be easy enough to imagine a society that combined these traits, where taking a cow without permission would be a serious crime, but taking a horse would not raise eyebrows.

Another technique, if you don’t have a precedent that’s directly applicable, is to reason by analogy to other circumstances. The rule of precedent may not strictly apply, because the cases you’re relying on aren’t “similar” to yours, but the reasoning might still be persuasive.

Wait, wait, wait. For all this talk about cases, don’t we have actual laws?

A lot more could be said about the common law legal system, but that is it in a nutshell –using precedents and the process of legal reasoning to create and identify legal rules. But when I try to explain this, people usually say, “That can’t be our whole legal system! Don’t we have a government and a legislature that actually pass laws?” Of course we do, but in our system, those laws weave together with the common law (the body of judge-made law), and more importantly, with the type of common law reasoning that we’ve been talking about. In Part 3, we’ll see how that works.

“Your Honour, the Cow Precedent is Distinguishable!”: The Common Law, Part 1

We’re going back to the basics today: cows, jackets, and how the common law legal system really works.

This is going to be a multi-part series, because it actually takes that long to wade through the system’s various layers. If it weren’t complicated, we wouldn’t have law schools, and lawyers wouldn’t command the prices that we do.

Ultimately, though, I think it’s very important for non-lawyers to have at least a basic level of legal literacy. Law touches so many areas of life that understanding how it works is an essential part of living in a democracy. We should be able to read news articles about Supreme Court decisions (or even read the decisions themselves) and be able to assess them intelligently. And certainly for any person or business who needs to engage a lawyer, it will help you to get what you need out of that relationship, with more control over quality and costs, if you understand the way the law works and the way lawyers have been trained to think.

Even if it’s done through silly examples. I like silly examples.

While this series will have a Canadian focus at times, it really applies to any common-law country: Great Britain, the United States, Australia, New Zealand, and anywhere else that has adopted the British model.

One more initial caveat: I’ve never actually studied legal theory, and some of my friends who have might tell me that this is far too simplistic or just plain wrong. I am, however, a practicing lawyer in a litigation department, which is constantly using legal reasoning to try to persuade judges and arbitrators of things. This perspective is the underlying basis for how I think about legal reasoning and constructing legal arguments. To paraphrase former Prime Minister Jean Chretien, the common law works better in practice than in theory.

All right? Let’s get started.

Precedents and Common Law

I think that most people in common law countries have, at the very least, heard about the idea of precedents: if one judge decides a case one way, future judges must decide similar cases the same way. The first decision creates a precedent which later judges must follow.

In theory, judges don’t make law. They only interpret it. But in practice, that is exactly what they do. Because of the system of precedent, any time a judge decides a case, he or she is, in effect, creating a legal rule: this is how all similar cases must be decided in the future. The sum of all of these rules, this “judge-made” law, is what we call the “common law.”

Following precedents is, in general, a good thing. One of the most important attributes of law is that it should be consistent and predictable, so that (ideally, at least) different people can be treated equally, and so that people and businesses can plan how to behave. The devil, as always, is in the details.

You see, the rule says that once a precedent is established, all similar cases must be decided the same way. If the cases aren’t similar, all bets are off. So if there’s a precedent, and I don’t want it to apply to me, all I need to do is convince the judge that my case is different from the precedent case. Lawyers call this “distinguishing” the earlier case. And that’s where the fun comes in.

A Cow and a Horse . . .

Let’s say you took somebody else’s horse. Assume that no judge has ever decided a case about horse-taking before, but there is a precedent where a person was found guilty of theft for taking somebody else’s cow. Also assume that there’s no Criminal Code actually defining what theft is, so we have to rely on the common law – on the decisions of past judges.

Your lawyer stands up in court and declares, “Your Honour, the Cow Precedent is distinguishable! It involved a cow, but my client took a horse. There is no precedent which says that taking a horse is stealing. Clearly, my client is innocent.”

I think that even non-lawyers have a pretty good idea how the judge would respond to that. “Who cares whether it’s a cow or a horse? Your client took something which was somebody else’s property. The Cow Precedent says that this constitutes stealing. Your client is guilty of theft, and also of hiring incompetent counsel.”

. . . and a Jacket

But now consider this scenario. You’re in a crowded club with a dark cloakroom. As you leave, you go to the cloakroom and grab what you think is your jacket. You get outside the club and start putting it on as you walk, wondering why it doesn’t fit quite right. Just as it dawns on you that you must have taken somebody else’s jacket by mistake, you hear, “Hey! That person’s stealing my jacket!” A police officer happens to be right on the corner and arrests you.

The prosecutor makes the same argument as in the Horse-Stealing Case: “The Cow Precedent clearly establishes that taking something that isn’t yours is stealing, and people who do it are guilty of theft. There’s no doubt the accused took the jacket. There’s no doubt the jacket belonged to somebody else. Clearly, the accused is guilty.”

Your lawyer disagrees. “Your Honour, the Cow Precedent is distinguishable! In that case, the criminal took the cow deliberately, knowing it didn’t belong to him. My client made an honest mistake in a dark cloakroom. He truly believed it was his jacket, and look: the two jackets do look quite similar. The fact that the cow thief was found guilty has nothing to do with the case before you; they’re totally different situations. What my client did is not theft.”

All of a sudden, it sounds like you have a much stronger argument – and one that would probably succeed under Canadian criminal law, where (I’m simplifying here) a “guilty mind” is a requirement of a criminal offence.

What these examples show us is that to distinguish a case, it isn’t enough to prove your case is different from the precedent. You have to prove your case is different in a way that’s legally relevant. That just leads us to the next question, though. How do we know, from reading the Cow Precedent, what’s legally relevant and what isn’t?

That’s where we’re going in Part 2.

When Unsafe Work is Criminal

Lawyers often say that law touches every area of life, but employment is an area of life that touches many different types of law. It’s one of the things that I find so fascinating about my work: a policy can be perfectly acceptable under labour law, but what about human rights? Health and safety? Privacy? Because of how important the workplace is to our daily lives, it’s a place where different regimes stack and layer on top of one another.

Metron Construction adds another legal regime to the mix, one that I don’t normally see in my day-to-day work: criminal law.

The Tragedy

Many Torontonians still remember watching news stories about the Metron Construction tragedy in 2009. Six construction workers were working at the fourteenth storey of a high-rise construction site, when the swing stage they were standing on collapsed. Only one man was wearing fall protection and escaped unharmed. Of the other five workers, four plunged to their deaths; the fifth miraculously survived the fall, suffering serious injuries.

As if it were even possible, the story gets worse.

There should never have been six people on the swing stage. It was designed to hold only two people at a time. That may be why there were only two fall-arrest harnesses between the six workers, instead of one per person as there should have been, which could have saved their lives. All of the workers were recent immigrants to Canada from Eastern Europe or Central Asia.

Oh, and it happened on Christmas Eve.

It was an event that shook people’s faith. Torontonians see their city, and Canadians see their country, as places where this sort of thing should not be allowed to happen. They’re right.

On the legal side, it was time to bring in the big guns.

The Charges

To understand what makes this case different from most cases involving workplace injuries, we have to look at the normal regime that governs workplace safety.

The Occupational Health and Safety Act (OHSA) in Ontario, and its equivalents in the other provinces, impose a number of duties on employers, general contractors, supervisors, workers and others to ensure that work is done safely. The duties range from the very specific (a guardrail must be between 91 and 107 centimetres, or 36 to 42 inches, above the floor) to the very general (employers must take all precautions reasonable in the circumstances to protect workers). A breach of these duties can lead to charges being laid.

We call these “quasi-criminal” charges, because they come from (in this case) safety regulations rather than the Criminal Code, but the process is fairly similar to the criminal one. Charges are laid, disclosure is given, the accused pleads guilty or not guilty, the prosecution has to prove its case beyond a reasonable doubt, and if the defendant is found guilty, the judge imposes a sentence.

A few years before the Metron event, however, the Criminal Code was amended to make it easier to prosecute companies for criminal offences having to do with worker safety. That was what made the Metron case different. The two regimes, OHSA and criminal, were applied at once.

So while the president of the company was pleading guilty to four OHSA charges (as part of a plea bargain that saw criminal charges withdrawn and allowed him to avoid jail time), the company itself was pleading guilty under the Criminal Code, to criminal negligence causing death. There was no plea bargain with the company, so the prosecution and the defence argued over the sentence in front of a sentencing judge.

As the judge, how do you decide what a fine should be in a case like this? Since the new Criminal Code provisions had rarely been applied before, there were few places for the judge to turn for guidance. The judge ended up relying on the fines that were imposed in similar cases under the OHSA, and also considering a number of other factors, including the company’s ability to pay.

The result? A fine of $200,000. Some public outrage. And an appeal by the prosecution to the Ontario Court of Appeal.

The Metron Construction Decision: Not in Kansas Anymore

The Court of Appeal released its decision in R. v. Metron Construction Corporation on September 4, 2013. The message: just because it’s a workplace safety incident doesn’t mean that we should use OHSA sentences. Criminal negligence is one of the most serious offences in the Criminal Code, and a sentence has to reflect that fact.

For one thing, if similar OHSA offences attracted fines between $115,000 and $425,000, then a criminal fine ought to be even higher. At the very least, it shouldn’t be toward the bottom of the range, like the original $200,000 fine was.

For another, once the Criminal Code is involved, you don’t need to worry as much about whether your fine is going to bankrupt the company. Those kinds of thoughts may make a lot of sense when you’re trying to enforce safety regulations – it kind of defeats the purpose if you bankrupt the company you were trying to regulate. But the Criminal Code is different. It’s not about regulation, it’s about public standards of behaviour. The purposes of a sentence include denouncing criminal activity and deterring other companies from doing the same. The company’s ability to pay should be taken into account, but it is far from the be-all and end-all.

In short, when you’re a corporation charged with a serious criminal offence, you should expect to face serious criminal sentencing. In the words of the Court, “The respondent was convicted of a very serious offence.  It is a different and more serious offence than those found under the OHSA.” We are not, so to speak, in Kansas anymore.

The Bottom Line

The company’s fine was increased from $200,000 to $750,000, and a statement was arguably made: companies had better be diligent about worker safety, because if they’re not, they have more than just the OHSA to worry about.

Some may argue that the fine was still not high enough. I’m not so sure. It certainly seems to me that the new fine was more appropriate than the old one, but $750,000 for a relatively small company strikes me as sufficient to drive home to other corporations that worker safety is important. Sadly, with an after-the-fact punishment, encouraging other companies to pay attention to safety is the best that we can really hope for.

And while many will say that the company president ought to have served jail time, the fact is that the supervisor whose negligence was most to blame for the tragedy has already served a much harsher sentence. He was one of the four who died on the swing stage.

Which just drives home what, for me, is the real point. For all of our talk about denunciation and deterrence, the facts on the ground make the entire sentencing analysis ring a bit hollow. Four people are dead, and no matter what fine we impose, it is not going to bring them back. The vast majority of the companies that I work for take pride in their health and safety programs, and would find the incident appalling, and that is what matters. It is the four deaths in and of themselves that ought to make us pay closer attention to workplace safety, not the fine that attaches to them.