A Really Fun Episode 51 of the Ideablawg Podcasts on the Criminal Code of Canada: Official Documents & Identity, Identity, Who Am I?

With this episode, we enter a new phase of offences, still under Part II – Offences Against the Public Order, relating to official documents. “Official Documents” is the heading for three offences, found under sections 56.1 to 58, relating to misuse of and falsification of government issued identification. The term “official documents” is not a phrase used in any of these sections and is therefore not defined under the Code. It is however a phrase used and defined in some provincial statutes, such as in the Plant Health Act, RSNB 2011, c 204. Those definitions refer to a document signed by a Minister or other government official. Some federal statutes refer to the term but do not define the full phrase. Although, “document” is often defined in statutes such as in the 2012 federal Safe Food for Canadians Act. These definitions tend to be very broad and define “document” as “anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked.” Other statutes, most notably as under section 5 of the federal Security of Information Act, refer to “official documents” in sections on falsification and forgery of documents, which are similar to the Criminal Code offences we are about to discuss over the next three episodes.

Before we start discussing section 56.1, offences relating to identity documents, I have a comment to make on the numbering of this section. This section was placed in the Code in 2009 as a result of An Act to amend the Criminal Code (identity theft and related misconduct), where a number of new offences and revisions to pre-existing Code provisions were amended. Fair enough. My issue is why this section needed to be numbered as 56.1 and not say, section 57.1, which would connect this new section to the falsification or improper use of documents. Section 56, as I discussed in a previous episode, concerns offences relating to the RCMP as in deserting from your duty. It has nothing to do with official documents or identity. When the Code is amended, numbering should consider placement with like sections. This is another reason, I submit we need a total re-do of the Code, section numbering and all. I say this even though I have such a familiarity with Code sections that a new numbering system would be disarming. Enough said on this subject.

Section 56.1 offers us an offence under subsection (1), exceptions to the offence or what could be considered lawful excuses under subsection (2), and a somewhat lengthy definition under (3), and a punishment under subsection (4).

 Section 56.1(1) sets out the offence as follows:

Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.

The phrase “transfers, sells or offers for sale” is found in the older offence under s.368 “use, trafficking or possession of a forged document” which replaced previous versions of that section in the same amendment as the creation of the s. 56.1 offence. Possession is defined in the Code under s. 4(3) and is a subject of an earlier podcast that can be found here as text and here as the podcast audio file. The term “transfers” is used throughout the Criminal Code as an actus reus component of various offences such as those relating to firearms (i.e. s. 117.08) or relating to the transferring of nuclear material with intent such as under s. 82.3. The word “transfer” is the subject of statutory interpretation and the application of Dreidger’s “modern approach” in the 2004 Supreme Court of Canada decision of R v Daoust. Here the court was considering s. 462.31 known as the offence of “laundering” the proceeds of crime. The word “transfer” was examined both in English and in French (transfert) in effort to understand how “transfer” differed from the other prohibited acts listed in the section such as sends or delivers, transports or transmits. In the case, the accused was the purchaser of stolen goods and the issue was whether this act constituted a transfer.  Of interest to statutory interpretation aficionados is the use here of the associated words rule or noscuitur a sociis (say that quickly three times). After applying this rule, the court found that a buyer of stolen goods was not committing any of the prohibited acts under the section. The acts listed, including the “transfers of possession of,” depended on the person committing the acts having control over the stolen property or proceeds of crime. This person would then pass onto another the property and would be the person targeted in the offence, not the so-called receiver. However, the receiver could certainly be charged with other offences found in the Code such as possession of stolen property under section 354 of the Criminal Code.

Besides having to prove the actus reus element or the prohibited act as listed in the section, the Crown would also have to prove that the item is in fact an identity document per the definition under subsection (3) which reads as follows:

For the purposes of this section, identity document means a Social Insurance Number card, a driver’s license, a health insurance card, a birth certificate, a death certificate, a passport as defined in subsection 57(5), a document that simplifies the process of entry into Canada, a certificate of citizenship, a document indicating immigration status in Canada, a certificate of Indian status or an employee identity card that bears the employee’s photograph and signature, or any similar document, issued or purported to be issued by a department or agency of the federal government or of a provincial or foreign government.

That lengthy list of documents could probably be summed up as simply any government issued ID. Further to our previous statutory interpretation segue, note that there is a descriptive list of identity documents and then a broad description encompassing “or any similar document.” Again, the associated word rule could be used to interpret this phrase giving the general phrase “colour” from the more specific terms. Another related rule can also be applied– get ready for another Latin phrase – involving ejusdem generis or the limited class rule. This applies when there are specific terms followed by a more general phrase. The rule limits the general phrase to the same class as the specifically enumerated ones. In this case, one can argue, as I did at the outset that “any similar document” would include any government issued identification.

Another element of the offence requires that the accused commit the offence “without lawful excuse.” There is no definition of this term, which is used liberally throughout the Criminal Code. In a search, the phrase pops up about 53 times. What constitutes a “lawful excuse” is many and varied. Typically, in cases considering the issue, the court says just that. For instance, in R v Osmond, 2006 NSPC 52 (CanLII), in considering s. 145(2)(b) of the Criminal Code, the offence of failing to appear in court, “without lawful excuse,” stated, rather unhelpfully at paragraph 45, that,

I do not need to list all the types of things that could constitute a lawful excuse.  The Crown referred to some possibilities in its submissions.  What can constitute a lawful excuse is usually established by judicial decisions and must be put in the context of the offence in question.

Judge Embree continued to say that what “lawful excuse” is “definitely” not is “forgetting” to attend court. In the context of this section, if the person “lawfully” has the government issued ID of another person or has it for a “lawful” purpose, there is no offence. To perhaps clarify this phrase, we can look to subsection 2 for some “lawful excuses” as contemplated by subsection 1. Subsection 2 reads as follows:

(2) For greater certainty, subsection (1) does not prohibit an act that is carried out

(a) in good faith, in the ordinary course of the person’s business or employment or in the exercise of the duties of their office;

(b) for genealogical purposes;

(c) with the consent of the person to whom the identity document relates or of a person authorized to consent on behalf of the person to whom the document relates, or of the entity that issued the identity document; or

(d) for a legitimate purpose related to the administration of justice.

There are a couple of items to note. First, the subsection starts with the qualifier “for greater certainty.” This phrase appears 48 times in the Criminal Code. Sometimes the phrase is followed by exceptions to the offence, such as in this section we are considering. Other times, it clarifies what act is included in the offence, such as in the definition of terrorist activity under s. 83.01. Therefore, in accordance with (2), we have a few scenarios to contemplate as not attracting criminal liability. Such as under (2)(b), where the possession of another person’s identity document is permissible if for “genealogical purposes.” What immediately comes to mind are the various websites which provide services to those people interested in finding information on their ancestors, such as ancestry.ca. For example, I have my grandfather’s identity documents issued when he entered the country as an immigrant from Russia in 1912. I found them, by the way, digitized online through Library and Archives Canada, a federal government service. However, this “exemption” and indeed this section does not protect the possession and use of another person’s DNA. Considering the now booming business in collecting and testing DNA for those “inquiring minds” who need to know what percentage of their DNA is Neanderthal, this seems to be a gap in our legislative identity protections. In light of this, section 56.1 seems to be already dated, although a good example of how quickly our technology is expanding and the difficulty with our laws to anticipate or even respond to these increasingly complex issues.

Returning to the original phrase “without lawful excuse,” there is a question as to whether the Crown has the burden to disprove this as an essential element of the offence or not. This would be akin to the Crown’s burden to disprove “without the consent” pursuant to the assault section 265. There is some authority to the contrary (R v Gladue, 2014 ABPC 45 (CanLII) and R v Neufeld, 2014 ABPC 66 (CanLII)), that “without lawful excuse” is not an “essential” element but “incidental” to the offence. This argument, however, relies upon a passage in a Supreme Court of Canada case, R v B(G), [1990] 2 SCR 30, 1990 CanLII 7308 (SCC), wherein the Court found the time of the offence was not an essential element of the offence. This, I suggest, differs greatly from a phrase that appears in the offence creating section. The better approach can be found in R v Plowman, 2015 ABQB 274 (CanLII). There, Justice Nielsen, in considering the phrase in section 56.1, found “without lawful excuse” places an evidential burden on the accused, as a “defence” to the charge. Thus, the accused need only point to evidence on the issue to establish an “air of reality”, thus requiring the trier of fact to consider the evidence in determining whether the Crown has proven the case beyond a reasonable doubt. The legal burden remains on the Crown to disprove the lawful excuse beyond a reasonable doubt.

The next issue is what the phrase in the offence “another person” means and whether it must refer to a “real” person, living or dead. In R v Vladescu, 2015 ONCJ 87 (CanLII), whether the identity documents in question related to a “real” person, was the sole issue. The Crown’s evidence did not touch on this aspect and the defence, arguing that proof of this aspect was an essential element of the offence, urged Justice Watson to acquit. Employing, what I would suggest is a questionable approach to statutory interpretation by focusing on the “plain meaning” of “purport” and comments made in one Senate debate on the new section which referenced “fictitious” identity documents, the Court decided that the Crown did not have to prove that the identity document belonged to a “real” person. Justice Watson convicted the accused despite the cogent argument by the defence that the subsection (2) exceptions, particularly the reference to genealogical purposes, suggests a real person. However, the offence of identity fraud under s. 403 uses the phrase “another person, living or dead” which suggests that Parliament, by omitting the phrase “living or dead” did contemplate fictitious identity documents under s. 56.1. Either way, this is an issue open to argument at trial.

In terms of the fault element or the mens rea required for this section. As indicated earlier, one of the ways of committing this offence is by “possession”, which as indicated is defined under section 4(3) of the Criminal Code. Possession requires proof of a high level of subjective mens rea. However, if the Crown relies on the other modes of committing the offence such as transfer or sells, an argument can be made that the intention, although still requiring subjective liability, does not require the high level of mens rea needed for possession. Therefore, recklessness would be sufficient form of mens rea for those situations.

 Finally, it should be mentioned that subsection (4) sets out the possible penalties for committing the offence. Procedurally, the offence can be either an indictable or summary conviction offence and is therefore a dual or hybrid offence. This means the Crown has the option to elect the mode of proceeding. Although proceeding under indictment carries a longer maximum sentence of five years as opposed to the maximum of 6 months imprisonment (and/or maximum fine of $5000.00 if the accused is an individual). Of course, should the Crown elect to proceed by indictment then the accused would have an election to have a trial in either provincial court or in superior court, with or without a preliminary hearing and with or without a jury pursuant to s. 536(2).

 

The Creation of Community “Space” in Sentencing in R v Saretzky

The Saretzky case will live in infamy as a disturbing crime that defies description and understanding. In this post, I do not intend to engage in a classic case analysis of the sentencing proceeding, which has been the primary subject of media attention and legal commentary. Certainly, the legal issues raised in this case are of concern as we struggle to make sense of a crime so devoid of humanity yet committed by a person who will now spend seventy-five years in custody, essentially to the end of his days. Is it a crushing sentence which fails to recognize the possibility, no matter how faint, of rehabilitation? Or is mere speculation about rehabilitation an inappropriate, unsafe, and frankly impossible standard to apply? Leaving aside the application of recognized principles of retribution and denunciation, are we comfortable with the reality of this decision, the warehousing of an individual who is a legitimate and continuing threat to society? Should the law be a “beacon of hope” or does “hope” go beyond legal expectations? Although we like to believe that hard cases make bad law, in fact, hard cases force us to look squarely at the worst scenario almost as a litmus indicator to test the strength and flexibility of applicable legal principles. In looking at Saretzky and Justice W. A. Tilleman’s reasons for sentencing, we can properly ask whether our sentencing principles and codified laws are up to the heavy task of assessing the worst case and the worst offender, the twin legal principles supporting the imposition of the maximum sentence.

The answer to all of this may require us to do some navel gazing and philosophizing that takes us outside traditional sentencing principles. It may also require us to explore whether there is a legitimate role in sentencing for the community. When I use the term “community,” I am not referring to bald public opinion as reflected on social media – that, as Justice Wagner cautioned in R v St-Cloud, 2015 SCC 27 (CanLII) at paras 80-84, is far from the considered and reasoned pronouncements of the law. No, community is not who has the most likes on Twitter and speaks the loudest on Facebook. Community or better yet the “community’s sense of justice” can be found in Justice Tilleman’s reasons in the Saretzky sentencing. Community bonds, communal mourning and healing all have a “space” in the Saretzky decision. It is my contention that the community’s place in the bounded space of the courtroom is connected to the judge’s now enhanced and expanded duty to protect the integrity of the administration of justice and to maintain trust and confidence in the criminal justice system. With this shift to community however, we must be ever mindful of our principles of fundamental justice which protect the individual offender as part of that community. We must rely on the delicate balance of sentencing to calibrate the scales of justice to ensure fair and just sentences.

In the first sentence, Justice Tilleman speaks through the offender to the community – not the community writ large but the community of Crowsnest Pass, a small district in southwestern Alberta with a population of a little over 5,500 people consisting of a string of even smaller communities, such as Frank, Blairmore, and Coleman, all hugging Highway 3 as it winds through the pass and into the British Columbia Rockies. It is a small community with big history. It is a community with memory of disaster. It was here in 1903 where the tip of Turtle Mountain tumbled into the town of Frank thereby defining a community through devastation and loss. It is here that Canadian opera found a voice in the tragic story of Filumena, a young woman convicted of the murder of an RCMP officer during the prohibition era. This and many other stories create the community, the community which Justice Tilleman addresses nineteen times throughout the sentencing reasons. These are the people of Crowsnest Pass whom Justice Tilleman, before asking Derek Saretzky to stand for the imposition of sentence, encourages to heal and move forward. He encourages them to “rebuild” and recreate another iteration of themselves as community, an image not defined by inexplicable tragedy (para 58).

Community also speaks to the offender in this decision. The jury of peers, charged with the difficult and awesome task of determining guilt or innocence, are representative of the shared community of the offender and the victims. It is through the jury process that community members, utilizing the legally embossed analytical tools given to them by the trial judge, engage in community decision making. In the words of Justice Addy in R v Lane and Ross, [1970] 1 OR 681, 1969 CanLII 545 (ON SC) (p 279), juries are the “bulwark of our democratic system and a guarantee of our basic freedoms under the law.” They are also part of the sentencing discourse through their parole ineligibility recommendations, and, in the Saretzky case, they unanimously urged the imposition of consecutive terms totalling 75 years of parole ineligibility (para 24).

Community also defines the victims. Justice Tilleman humanizes the deceased (para 48) through the lens of community as he circumscribes their community space and place by describing “Hanne Meketech—a community elder and dear friend,” and “Terry Blanchette—a young man and father,” and lastly “Hailey Dunbar-Blanchette, an innocent child.” Thus, Justice Tilleman monumentally memorializes their lives in relation to what these victims of violence meant to their community.

The approach taken in this sentencing, the bringing in of community to a forum traditionally partitioned off from community, evokes the Indigenous model for restorative justice as envisioned in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) at para 74 and as skillfully employed by Justice Nakatsuru throughout R v Armitage, 2015 ONCJ 64 (CanLII). This model requires more investigation as we learn from and embrace Indigenous culture, thought, and sense of community. It also brings to mind specialized international courts, such as the traditional Rwandan gacaca courts, which empower community as a step to repairing past harms.

These approaches, superficially, differ greatly from the English common law tradition and often sit uneasily within our sentencing principles geared toward the criminal sanction. But on closer examination, all sentencing approaches cause us to investigate the space, place, and boundaries of the judicial function in the larger sense. Hard cases such as Saretzky require us to reconcile the role of the trial judge, who is at once the arbiter of the facts and purveyor of the law whilst also the guardian and representative of the community’s fundamental values. Difficult cases challenge us to consider how we today in our truly Canadian context should read the roles and responsibilities of judgeship. Conversations over hard cases help us create and define our legal system. In this instance, we are required to pause and consider whether Justice Tilleman was fulfilling a legally recognized juridical role when he permitted community to speak in this decision or whether on a strict reading of our legal principles he overcompensated for community when he elevated the crime beyond the worst offence and worst offender nomenclature to describe it as a crime against community (paras 32, 45). It is this hard case that causes us to consider holistically the post-conviction regime set down for us in the Criminal Code including the long-term offender and dangerous offender regimes, which offer an alternate determination of long term risk and dangerousness of an offender like Saretzky who is deemed “a lethal harm to his community” (para 43).

The delicate balance of sentencing requires a steady hand; a community needs to heal, needs to feel in some way part of the application and presence of justice for matters happening in their living space. Principles of sentencing recognize this role of community. Yet, balance requires linkage and proportionality, and the sentencing court must fulfill the objectives of sentencing in such a manner that this offender is sanctioned for his actions and for his level of moral culpability or blameworthiness. Certainly, Justice Tilleman was aware of this when he emphasized the “deliberate and intentional conduct” of Saretzky in committing the offences (para 34-35). To fulfill these principles then, the court must, through the “judicial lens”, know the offender, the offence and the community.

Sentencing is, in my view along with bail, the most important part of the criminal justice system. Release until proven guilty and meaningful, principled and compassionate sanctioning are the bookends of the Criminal Code. Without either, our system will fall. Recently, the spot light has rightly been on the frailties of the justice system with bail as an indicator, like the canary in a coal mine, of the level of crisis facing us. Sentencing principles (R v Lacasse, 2015 SCC 64 (CanLII)) and plea negotiations (R v Anthony-Cook, 2016 SCC 43 (CanLII)) have received jurisprudential scrutiny but without any real integration into the now widespread discussion of what’s wrong with our justice system and how to fix it. Certainly, the Saretzky decision is not a prime example of “what’s wrong” but it reveals to us where the points of legal inquiry intersect and interface with public confidence and trust in the system. Judges, throughout the trial, make decisions based on the rule of law, and jurors too must confine their decision-making to the parameters of legal principle, which involve the application of common sense and reasonable inferences. However, community, in the fullest sense of the term, is, as Jane Jacobs envisioned it in Death and Life of Great American Cities, the legal equivalent of “eyes on the street”, that idiomatic second pair of eyes, which takes the form of the alter ego of the blindfolded goddess embodied as the community conscience or “community sense of justice”. In what form this communal sense or community space unfolds within the halls of justice is a matter for further reflection and consideration. Justice Tilleman in the Saretzky decision challenges us to do just that.

Kienapple to Jordan: Some Thoughts on How Cases Become Icons

It is mid-August and I am busily writing a paper on W(D). Instantly, all criminal lawyers nod their head. Just the evocation of those initials recalls the penultimate paragraph of Justice Cory where he sets out the “ideally, appropriate instructions on the issue of credibility” and imprints, in words and in precedent, the trial judge’s obligation to assess credibility as an aspect of the presumption of innocence and consistent with the burden and standard of proof in a criminal case. Unsurprisingly, this “idealism” became “the law,” so to speak, as judge’s have taken Justice Cory’s words to heart resulting in over 9000 case citations (CanLii has 8590 mentions to date, while Westlaw finds 9, 133) of W(D) since its release in 1991. The case initials, W(D), have essentially become a constant reminder of the duty of a trial judge in a criminal trial. This transformation from case to icon, is not just about words and precedent, but is about something much more profound. Those two initials, like the madeleine savoured by Marcel Proust in Remembrance of Things Past, conjures up images of the “ideal” democratic society imbued with our principles of fundamental justice, of the impartial and independent trial judge as the gatekeeper extraordinaire, and as a symbol of our “community sense of justice.” Now that’s a heavy burden for one case! Yet, I would suggest, that W(D) does not stand alone in this iconography or more accurately, semiotic state (Umberto Eco, A Theory of Semiotics). Why or how a case attains this status is, I think, an interesting exercise for us to enter into as a different way to understand the development of law and precedent.

First, an admission. I came to this idea from some non-legal reading. Martin Kemp, an art historian and Leonardo Da Vinci “specialist,” not the Martin Kemp who was the bassist for Spandau Ballet, is an engaging and fascinating writer. His authorship glides over the orthodox as in The Oxford History of Western Art, but also wanders into the fringes in The Science of Art: Optical Themes in Western Art from Brunelleschi to Seaurat. His book, Christ to Coke: How Image Becomes Icon, runs through various obvious choices in this image/icon transmutation such as the Coke bottle and E = mc2 but also some non-traditional icons arising from photographic imagery such as the Pulitzer Prize winning photo by Nick Ut of the Vietnamese children running from the napalm blast on June 8, 1972. Although a reading and viewing of this book reveals the many and varied pathways to “stardom” or icon status, it also highlights the element these images share: the ubiquitous-ness of the image in the public psyche. As with Proust’s madeleine, the visual becomes a short hand for an avalanche of memories, facts and emotions. This is one time when a popularity contest works.

So how does all of this translate in the dicta of case law? Those cases which, at the same time are more than their name whilst being represented by just their name, become a short hand or an abbreviation for the case itself. I say, “for the case itself” as these cases go beyond the traditional ratio decidendi of the case and can encapsulate the implementation of that rule of law such as an in-court procedure employed to engage the issues raised in the case as in the Corbett application or as in W(D) an instruction or even more evocative, as a warning such as in Vetrovec. Highest status goes to those cases which become “grammarized” as verbs. Thus, a conviction can be “Kienappled” as referenced by imminent criminal defence lawyer, Alan Gold, at page 302 of his commentary "Appeal Courts - Jurisdiction" in the 1990, Volume 32 Criminal Law Quarterly. Sometimes, grammar changes – instead of a case being “Askoved” (see Alison Hatch Cunningham, North of the 49th Parallel: The Criminal Justice System of Canada, 13 Crim. Just. 21, 27 (1998)), we now, a year after its release, speak of a case being “Jordaned” (see Kelly Egan’s article online from April 28, 2017, Justice ministers focus on five areas to cut court delays). This grammatical construction is also akin to the vocative case in Latin where language directly “calls out” a subject of a sentence, usually done with a judicious use of an exclamation mark. Finally, the “iconizing” of a decision can make what is inanimate an animated object such as the “KGB statement.”

From case to icon means that the dicta or words found in the case are compressed or squeezed into the case name and become part of the verbal lawyerly language we employ in court, in discussions within our profession, and even in the advice we give our clients. Why these particular cases have such impact and such iconic status is a difficult question to answer but may be a result of their instrumentality or even more controversially, their weaponization, as cases which lead to determinative action such as in the Corbett application or as in the Askoved case. Their staying power may also rest on their dual status as used in both the bounded space of the courtroom and the boundless space of social media. As mentioned earlier, icon status also suggests a case meaning which transcends the obvious ratio and implies meaning which touches the inner core of societal ethos.

In a broader view, this inclination for iconography is also about the significance of naming in our society or more accurately our penchant for labelling, categorizing and listing. It leads us to ponder on the purpose of this short hand – are we cutting away too deeply by employing this “sound bite” approach or are we making law more accessible by promoting seminal and pivotal cases into everyday nomenclature? This concept of legal iconography also leads to further speculation on the role of the visual in law and one of my interests in visual jurisprudence as studied by the legal visual theorists, Peter Goodrich at Cardoza School of Law and Richard Sherwin, Director of the Visual Persuasion Project at New York Law School. It finally leads us to even broader considerations of access to justice and the kind of “human-centered design” we must be open to in the next generation of law iconography.  

W(D) is a case but it is more than that but what more it is, I am determined to find out!

 

Episode 50 of the Ideablawg Podcasts on the Criminal Code of Canada: Criminal Code Reform and Section 55

Welcome to the fiftieth podcast on the Criminal Code of Canada. I started this project almost four years ago and although my output has slowed down, my commitment to providing you with some insight on every Code section has not changed. In this the fiftieth episode, I would like to generally reflect on the recent proposed changes to the Criminal Code and to specifically discuss the proposed revision to section 55 “Evidence of Overt Acts,” the subject of this podcast.

The new amendments contained in Bill C-51, which received first reading on June 6, 2017, will repeal some of the sections I have discussed in previous podcasts. These are sections which are archaic remnants of the initial 1892 Code and their deletion is welcome. In my opinion, however, repealing sections is not a substitute for badly needed reform of the Code into a readable, understandable and modern reflection of societal fundamental values. Piecemeal revision can lead to anomalous results. It can also lessen public confidence in the criminal justice system. Reform may take time but it is time well spent if the Code is one in which all citizens feel they have had an opportunity to create. I know what I am saying I have said before but, in my view, smart re-visioning of our criminal justice system is a position to be repeated.

Before we discuss section 55, I want to point out that Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, also proposes to repeal section 49, Alarming the Queen. I discussed this section in podcast episode 44, which the text of this episode can be accessed here. Fortuitously, we recently used section 49 in a 1L criminal law final exam. A nice send off to an obsolete section, in which the prohibited behaviour could easily form the basis of other charges such as causing a disturbance under s. 175.

Section 55 “Evidence of Overt Acts” rounds out our discussion of the offences falling under the heading “Prohibited Acts” pursuant to Part II Offences Against Public Order. It is not a substantive section, meaning it does not create a criminal offence. Rather the section is, as the headline promises, related to evidentiary proof but in the context of a procedural rule. The section sets out the parameters of the process required to establish an essential element of the prohibited act or actus reus of any of the enumerated offences.

Section 55 presently reads as follows:

In proceedings for an offence against any provision in section 47 or sections 49 to 53, no evidence is admissible of an overt act unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out therein.

This section will be slightly revised if Bill C-51 passes as presented. The changes are very minimal, deleting the reference to s. 49, as it is repealed, and making slight wording adjustments to make the section more readable. The import of the section remains the same and it will read as follows:

55 In proceedings for an offence against any provision in section 47 or sections 50 to 53, evidence of an overt act is not admissible unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out in the indictment.

Essentially, the section requires an “overt act” to be specified in an Indictment for any of the offences enumerated in section 55 before the court before will admit evidence of such acts at trial. This requirement to specify an overt act in the Indictment is mirrored by section 581(4) of the Criminal Code, a section relating to the form of the counts in the Indictment and the sufficiency of such counts. Subsection (4) requires that where an accused person is charged with the offences, as enumerated under s. 55, “every overt act that is to be relied upon shall be stated in the indictment.”

Although the above explains why we have this procedural/evidentiary section amongst these criminal offences, questions still remain: what exactly is an “overt act” and why is there such a special procedural concern placed on this type of act for these particular offences? These offences are sections we have already encountered in previous podcast episodes and relate to Part II offences against the public order. Section 55, however, does not refer to all offences under the Part but specifically the punishment for treason, the offence of assisting an alien enemy to leave Canada or failing to prevent treason, the offence of intimidating Parliament or the legislature, and the offence of sabotage. These are offences which directly impact our national security interests and are also offences where the modus operandi might include a conspiracy. It is the offence of conspiracy from which the concept of overt acts is most applicable. In order to examine this connection, let’s try to define an “overt act.”

The phrase “overt act” does not appear in any of the enumerated sections found in section 55 but it is found in section 46, which describes the offence of treason, as opposed to section 47, which merely sets out the punishment. The phrase is also found in section 48, another section relating to the charging limitations for treason, requiring that if the charge is based on “an overt act of treason expressed or declared by open and considered speech” the charging document or Information must set out the overt act and the words and the Information must be laid “under oath before a justice” within 6 days of the time the words were spoken. In terms of the rest of the Criminal Code, the phrase is only used in the previously mentioned section 561. See Episode 43 of these podcasts, where I discuss “overt act” as it relates to sections 46, 47 and 48. As I mentioned earlier, treason and overt acts seem to go hand in hand with conspiracy as a treasonable “overt act” for purposes of the section. The crime of conspiracy, under section 46, is therefore a “manifestation” of the intention to commit high treason or treason as required for section 46(2)(d). As I explained in that previous episode, this treatment or really clarification of an overt act as conspiracy is consistent with the original description of treason under English common law and the 1892 Criminal Code.

Before we discuss the phrase itself, now that we wandered through the Criminal Code looking for an overt act, let’s wander a little bit off the path to find where else the phrase “overt act” appears in legislation. Interestingly, and importantly if you are an agriculturalist in the Maritimes, “overt acts” are referenced in the 1990 Newfoundland Poultry and Poultry Products Act, RSNL 1990, the repealed Prince Edward Island Poultry and Poultry Products Act and the repealed and re-enacted Agricultural Development Act of New Brunswick. In the Newfoundland statute, “overt act” is part of the definition of “ship”, “shipping”, “transport” and “transporting” which are defined as the “overt act of a person leading to the movement” of poultry and poultry products by certain specified means or conveyances. Certainly, not the kind of “overt act” contemplated under s. 55.

Now to the definition. An “overt act” is outward behaviour, which consists of readily ascertainable actions. A good example would be the description of the overt act under section 48 as “expressed or declared by open and considered speech.” We can find other examples from three World War One treason cases. In the first case of R v Snyder (1915), 24 C.C.C. 101 (ONCA), the overt act of treason consisted of the acts of the accused in helping people leave Canada to fight with the “enemy” during World War One such as bringing the people to a farm for purposes of then sending them overseas. Rex v Bleiler, a 1917 decision from the then Alberta Supreme Court (Appellate Division), offers another example of overt acts consisting of attempting to sell a “certain device” to the German Emperor or his agents. The case, sadly, never explains exactly what this device is but the overt acts involved the accused writing letters, recommending the device and offering it for purchase, to the German Ambassador to the United States. In these letters, the accused professes his loyalty to Germany and requests the details of the purchase be done secretly. The final case in the trilogy, is from 1918 decision of the Quebec Court of Appeal in The King v Schaefer, a case I referred to previously in the episode 43 podcast on treason. Of interest is the dissenting decision. The facts of the case suggest the cruel effects of wartime prejudices and the use of treason as punishment for ethnic origin and community loyalties rather than for the protection of the public. The facts are best read as excerpted from the dissent of Mr. Justice Lavergne as follows:

1 Israel Schaefer is a Jew who came to reside in Canada some twenty years ago or more. In the first years of his residence here, he became a British subject being naturalized under the Canadian statutes. In October 1914, he had a family of numerous children brought up here. His principal business since many years was to sell transportation tickets, both steamship and railway tickets. He was known as an industrious and very respectable citizen.
2 In October 1914, he sold transportation tickets from Canada to a port in Bulgaria. Bulgaria, at that time, was not at war with any other part of the British Empire. The number of tickets sold is alleged to have been ten. In addition he is alleged to have provided these ten people with documents to further transportation to the boundary line between Roumania and Austria-Hungary. The ten tickets were not all sold on the same date, but at different dates, in October 1914. This was done by Schaefer in the course of his ordinary business...
4 These people or most of them had come from Bukovina, which country formed part of Roumania and part of Austria. Most of these people, if not all of them, spoke Roumanian Language.
5 Schaefer was only charged with assisting the public enemy, but was only charged with assisting ten persons to leave Canada by selling them steamship tickets to a country not at war with Great Britain.
6 He is also charged with counselling these people to speak the Roumanian language. Another charge of furnishing these people monies was not pressed, was virtually abandoned, no attempt whatever was made to establish that allegation. The persons to whom Schaefer sold tickets having been resident in Canada for a few years were in the position of alien amis, and presumed to have paid local allegiance to our Sovereign. The fact that they were not arrested shows that the authorities did not regard them as offenders.

It was the opinion of the dissenting justice in the case that as the overt acts alleged were not connected to “any hostile intention or action,” the charge of treason must fail. Further, the dissent noted that the Indictment set out the acts of the people who left the country as assisting the enemy, not Schaefer, and there was no allegation of conspiracy. Additionally, there was no evidence these people in any way assisted the enemy other than they spoke the language and wanted to go home. Thus, there could be no inference that the overt act outlined in the Indictment manifested an intention for assisting the enemy or any other such treasonable acts. The majority disagreed and upheld the conviction for treason. In their view the Indictment sufficiently described the overt acts of treason being a treasonable design to assist the enemy and the overt acts in furtherance of it. This case presents quite a differing view of the overt acts and highlights the impact of contextual societal events can have on decision-making.

There are several cases, more recent ones, on the sufficiency of counts in an Indictment and specifically, in the case of a conspiracy charge. Certainly, section 55 could engage a sufficiency argument in the appropriate case and therefore this section, although only related to a few offences against the public order, has a relationship to other procedural sections in the Code. We will get to those sections as we continue our journey through the Criminal Code.

 

 

 

 

Unpacking R v Barton

R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles.

The facts are startling, sad, and familiar. Cindy Gladue, a young Aboriginal woman, was paid sixty dollars by Mr. Barton to perform sex acts. Two interactions occurred over two days and on the second evening, Ms. Gladue died in the bathtub of Mr. Barton’s hotel room. She bled to death from a perforated vaginal wall. At trial, Mr. Barton admitted he had sexual contact with the deceased that evening. He admitted he repeatedly pumped his fist into Ms. Gladue’s vagina at which point she started to bleed. He maintained that he did not intend to harm her and that he was unaware of her condition until he awoke in the morning and found her immobile in the bathtub. In his evidence, he called the incident an “accident”. After finding her in an injurious state, Barton tried to mop up the blood, fled the scene, and discarded the bloody towel, only to return to the hotel room soon thereafter at which point he called 911. His statements after the incident, to both friends and the police, suggested Ms. Gladue came to his hotel room and asked to shower in his washroom, where he found her dead the next morning. At the time, he denied any physical interaction with the deceased. At trial, medical evidence was called on behalf of the Crown and the defence. The Crown’s expert contended the perforation was caused by a sharp object, while the defence expert disagreed and opined that weakness in the vaginal structure was the operating cause of the injury.

The trial was heard before a judge and jury in the early part of 2015 and Mr. Barton was ultimately acquitted. An application was made by the Crown, during the trial, to admit “real” evidence in the form of the vaginal tissue of Ms. Gladue to assist in understanding the evidence of the medical expert who examined the tissue (R v Barton, 2015 ABQB 159 (CanLII)). Real evidence is directly observable by the trier of fact. Like direct testimonial evidence of a witness who has personally observed an event, it does not require the trier of fact to draw an inference from the evidence, should it be accepted. Unlike direct testimonial evidence of a witness, the trier of fact becomes the direct observer, acting, in some sense, as the witness to the event. This act of “direct self-perception” or “autoptic proference” as Wigmore described it (John Henry Wigmore, Evidence in Trials at Common Law, revised by John T. McNaughton (Boston: Little, Brown and Company, 1961) vol. 4 at 1150), occurs with all real evidence such as photographs, audio and visual recordings, electronic and hard copy communications or the spent cartridges of a firearm. Similarly, application can be made pursuant to section 652 of the Criminal Code, RSC 1985, c C-46  during the course of a jury trial, up until the verdict is rendered, for a “view” of “person, place or thing” located outside of the Courtroom. These direct observations made by the trier of fact become part of the evidence assessed at trial. Often, real evidence or direct observations by the trier can “speak for itself,” such as those spent cartridges but real evidence, in terms of how it fits into the narrative puzzle, is subject to interpretation. Either way, real evidence is admissible at trial if it is relevant and material to the case. Relevancy depends on authenticity. An item that does not reflect its true nature at the time of the incident is worthless and has no probative value. Applications to admit such evidence are usually, therefore, framed in authenticity terms: Is the item unaltered and unchanged? The application, in this instance, was opposed by the defence, not because the tissue was irrelevant or not authentic but because the prejudicial effect of such evidence before the jury would outweigh the probative value. This exclusionary discretion or gatekeeper function of the trial judge is an important safeguard in ensuring a fair trial while ensuring the truth-seeking function of the trial is not inappropriately compromised. This discretion is an example of the balancing done over the course of a trial. In the area of expert evidence, for instance, the trial judge has an ongoing duty to ensure such evidence stays within its scope to ensure trial fairness (White Burgess v Haliburton, 2015 SCC 23 (para 54) and in R v Sekhon, 2014 SCC 15 (para 46)). In this instance, the trial judge admitted the evidence, recognizing the probative value outweighed the prejudicial effect. It was, in the Court’s opinion, evidence to assist the jury in their consideration of the case. The trial judge also reminded the jury to decide the case fairly and dispassionately and not to base the verdict on an emotional response to the evidence. Although, as noted by the Court at paragraphs 127 and 128, standardized cautions to the jury without contextualizing the instruction to the facts of the case are meaningless.

This narrative of the admissibility of the tissue evidence highlights the balancing required throughout the trial in both the admissibility of evidence and the instructions to the jury. But this story of admissibility goes even further than the bounded space of the Courtroom. Ms. Gladue’s family was devastated with the decision to admit the tissue evidence. To the family, it was a decision that required their input and consent to protect Ms. Gladue’s dignity as an Aboriginal woman. To the friends and family of Cindy Gladue, she was “more than a statistic, more than an addict and more than a piece of tissue” (Death and Life of Cindy Gladue by Kathryn Blaze Carlson, May 15, 2015, The Globe and Mail). In the interview for the Globe article, Ms. Gladue’s mother emphasized that Cindy is “still human, she still has a name, not just ‘prostitute’.” This evidentiary application highlights the concern the Court of Appeal has in Barton with the approach this case represents: We in the justice system are attuned to categories of legal issues to which we must respond such as the admissibility of real evidence, the inadmissibility of bad character evidence, the proper use of circumstantial evidence and the correct legal articulation of the substantive law. We are not trained to be mindful of the larger view of the case which involves a self-assessment of how the case, in totality, presents. We are not recognizing that important societal values, some of which are Charter values, must also be reflected in the justice system. This includes the way we refer to a witness as a “prostitute” rather than a “sex worker” or even why that kind of labelling, done throughout the trial by all participants in the case (para 116) is required. We need to constantly ask ourselves when we prepare and present a case, “why”? Why do we need the witness to be called a “prostitute”? How does it advance the case? Is there another way of making our point that does not fall into stereotypes or is the notion simply not required as its sole purpose is just prejudicial and irrelevant? These basic questions are part of the Court of Appeal’s “re-setting” to the modern approach to the contextual appreciation of a case.

The facts of this case do not serve merely as the framework upon which the legal issues are placed but are the essence of this decision. Woven in between these facts are the legal issues, which, to extend the metaphor, become the fabric of our discussion in this post or the “unpacking” of the case. Typically, this term “unpacking” refers to an analytical unfolding of issues that are difficult to ascertain without some sort of roadmap or guide. In essence, “unpacking” suggests an opening up of the folded map or triptych to reveal the whole route. It requires us to also extend ourselves and to examine the big picture. In seeing the whole, we can then consider how these various packets of legal issues fit together to provide the final outcome. But “unpacking” can also mean what it says – that a journey has ended and it’s time to clean out the baggage. We are done but not finished as when we “unpack” we might re-fold in a different or better way or we may clean and re-start again. We may even discard. After reading Barton and after reflecting on it, this post is about both types of “unpacking”. As I have already suggested, we need to ask broader and deeper questions such as: What is the long view of this decision? Where does it lead us? What will it impel us to do?

Admittedly, all of this may seem too existential for a legal blog but as a practitioner and academic, I am enjoying the pure joy of reading a decision which challenges me to set aside a legal response and instead to think about the kind of justice system which appropriately reflects who we are as a society and who we want to be. It sparks a badly needed conversation about our approach to the law and whether it is approachable for all those impacted by it. I can’t say with certainty that I know what the justice system should look like or can look like but I can say that this is something that we all need to be engaged in because change requires hard work and dedication. It also requires all of us to step out of our comfort zone, which cases such as R v Jordan, 2016 SCC 27 (CanLII), and now Barton push us to do. However, change does not mean we give up what is essential to us as a country committed to Charter values. It simply requires us to be mindful of those values in fashioning our justice system. We should not be pressured into cutting corners or rights in the name of expediency. Rather, we should be scrupulous in our desire to see justice done. Complacency or leaving the status quo, be it trial delay or conviction of the innocent, is a dead end to nowhere. Only thought that leads to action makes a difference.

As I first suggested, the Barton decision is nuanced, providing layers of discussion: I suggest at least seven layers which interconnect. Looking at the first layer of the unpacking of issues, there is an overarching theme, which in my mind extends far beyond the case at hand, relating to instructing the jury in a clear, robust and frank manner. We in the legal profession too often rely on the probity of legal nomenclature to get us to where we are going (model jury instructions can be found on the National Judicial Institute website: https://www.nji inm.ca/index.cfm/publications/model-jury-instructions/). Barton reminds us that justice is not only for those in the know but is also for those who really don’t care to know until they are face to face with questions of justice. Clarity of thought, simplicity of explanation, and frank conversation go a long way to inform the non-legal partners in our justice system. To be truthful, this approach goes a long way for those legal minds who are in the know as well. I will call this approach to jury instructions, in legal language, the modern principled approach, which embodies the contextual approach approved of and utilized by the Supreme Court of Canada in other areas of law such as in statutory interpretation (para 21 of Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC)) and in the admissibility of hearsay (see R v Khan, [1990] 2 SCR 531, and R v KGB,[1990] 1 SCR 740 as the foundational cases). This approach is open to doing law differently, within the bounds of legal principles and within the context of the case at hand. To do otherwise would be to detach the decision-making from the unique narrative offered by each case.  

A modern approach to jury instructions sounds grand but in the context of Barton it finds meaning. This is where the Alberta Court of Appeal provides us with guidance and helpful exemplars for the fulfillment of the modern approach. A jury instruction must provide meaningful assistance to the jury by simplifying the complex law on sexual assault while recognizing no two cases are alike. The trial judge’s role is to also “unpack” by unfolding the trial narrative with the concomitant legal issues as they are relevant in the particular case. The trier must ask, is this a case involving consent or no consent? Or is it an issue where consent is given but vitiated? If so, on what basis is there such a vitiation? This deep dive into the facts, this modern contextual approach, requires the trial judge to specifically identify the essential nature of the offence. As discussed throughout Barton, the emphasis in the charge was askew. For example, the focus should not have been on the “application of force” as required for the “assault” element of the offence but on the “sexual activity in question” per s 273.1 of the Criminal Code, which defines consent for the purpose of sexual offences. As recognized in the decision, sex, which is in and of itself a legal activity, is by nature a touching. This case is not one where the accused denied the sexual conduct so the emphasis in the instructions on a finding of an “application of force” was confusing and unhelpful for the jury (para 189). Instead, the focus for the jury should have been on the amount of force used as an aspect of the sexual activity (paras 193, 194).

Creating a jury charge that fits the case is not the only function of this modern jury instruction approach. A modern principled approach requires balance in the instructions to the jury. But balance does not mean the traditional evidential and procedural safeguards are no longer necessary. Instructions on the presumption of innocence and on impermissible inferences must be part of the discourse between trial judge and jury. However, the trial judge, who must remain balanced in thought and impartial in aspect throughout the trial, has a duty to present all evidence in a fair manner. The accused is to be judged on the evidence and not on improper inferences arising from it. In the Barton case, the trial judge admonished the jury to not engage in “reasoning prejudice” or “moral prejudice” that occurs when a trier draws an inference that the accused was a bad person and worthy of conviction because he consorted with an “unsavoury” person, in this case a “Native girl” who was a “prostitute” (para 130). This classic limiting instruction is given to ensure any potential “bad character” evidence, which is presumptively inadmissible, is not used for that impermissible purpose (see R v Mack, [2014] 3 SCR 3; 2014 SCC 58 para 57).  But in this case, the concern to protect the potential “bad character” of the accused was not informed by the gate keeper function of a trial judge that aims to provide balance and fairness into the trial. Here, again, is the problem with the silo approach to law where case approach is embodied by a check-list of issues. By this one-sided appreciation of “prejudice” in this case, as only the accused person’s prejudice, the full meaning of trial fairness, as functionalized by the gate keeper function of the trial judge, was missing.

The missing instruction, according to the Barton Court, was the lack of instruction cautioning the jury to refrain from entering into similar reasoning or moral prejudice in assessing the status of the deceased as a female, Indigenous sex worker. Similar to the instruction regarding the accused, the jury should have been told not to draw the impermissible inference that because the deceased was a “prostitute”, she implicitly consented to all forms of sexual interaction by virtue of her profession (Barton paras 116-132). This connects to the further error, discussed later in this post, relating to the lack of a section 276 application regarding sexual history evidence. The jury would also have benefited from a direction that Ms. Gladue was not less “worthy” as a person because of how she was “labeled” or defined by society as a female, as an indigenous person, and as a sex worker. Defence counsel and Crown counsel in this case should welcome such instruction as it would completely neutralize any suggestion of “bad personhood” on the part of Barton. It would also humanize the case, placing it in real terms. As eloquently referenced in para 128 of the Barton decision, the case is about relationships between race, gender and status. It is also about the trial judge’s relationship with the jury, the relationships between all parties in the case and the relationships between the justice system and the community. These relationships are at the core of the criminal justice system. They are based on trust and confidence. In these relationships we expect a “fair” trial not a “fixed” one as emphasized by the Court of Appeal in Barton (at para 262).

This kind of instruction, I suggest, is also consistent with the Supreme Court of Canada’s position on the editing or excising of an accused person’s criminal record in R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC). There, the Court considered the prejudicial effect of placing an accused’s criminal record before the jury in a situation where the accused will testify, and the resultant moral and reasoning prejudice which may arise from the accused person’s prior criminal convictions. The concern is two-fold; that the jury will find that the accused is a bad person who has a propensity to commit crimes, and therefore likely committed the present crime and is therefore worthy of punishment and that such a prior record could distract the jury from their duty to determine guilt or innocence on the basis of the evidence before them. Although the Corbett Court recognized the discretion of the trial judge to edit or excise a criminal record to ensure trial fairness, Chief Justice Dickson cautioned that such application must not result in a “serious imbalance” where the Crown witnesses may also have previous convictions and where, as a result, their credibility is attacked (Corbett para 34). This requires the judge to look at the context of the case or the long view of the facts which would be before the jury to ensure the case was not reimagined unfairly and that the truth-seeking function of the Court remained intact. This application is an example of the exclusionary discretion or gatekeeper function of the trial judge I mentioned earlier in this post in which the focus is on trial fairness. The Alberta Court of Appeal in Barton was applying the same reasoning in calling for a more balanced and contextual approach in the jury charge.  

The second layer of issues in the case, which flow from the general concern with the jury instructions, are the numerous specific “traditional” legal errors in the charge identified by the Court. I am labeling these issues as “traditional” as they are the kind of legal errors in instructing a jury one regularly argues on a murder appeal. Here too, I would suggest, the errors are connected. For instance, as I will explain further, the misdirection and non-direction to the jury on the use to be made of the post-offence conduct is related to the misdirection on the “defence” of accident. In turn, these errors are compounded by the misdirection in the charge on unlawful act manslaughter and the inadequate charge on the two potential pathways (standard and Jobidon related as I will discuss later in the post) to manslaughter. I caution again that the purpose of this post is not to thoroughly discuss the legal niceties of these errors. These errors, however, serve to highlight the entanglement of issues found in this case.

Post-offence conduct must be approached by the trier of fact with caution to ensure such potentially damning evidence is considered in its proper context (see R v White, [1998] 2 SCR 72, 1998 CanLII 789 (SCC)). There are instances where an accused person’s actions after the incident “look suspicious” but are in fact consistent with an innocent explanation. Of course, it is within the purview of the trier of fact to accept or reject evidence and to determine the weight, if any, to place on evidence. However, as with impermissible character evidence, the trier of fact should not be concerned with evidence that has no probative value and merely distracts the jury from its duty to fairly and objectively assess the evidence. The concern with post offence conduct is the potential illogical “leap in logic” which can occur should the trier unreasonably infer guilt from evidence that merely “looks bad”. This does not mean that such evidence is presumptively inadmissible. On the contrary, post-offence conduct can be useful circumstantial evidence of guilt, of motive and of credibility, as noted by the Alberta Court of Appeal in Barton (paras 57-75). The misdirection and non-direction on the use of such evidence in Barton impacted the jury instructions on Mr. Barton’s position that what happened was an accident, as his “innocent explanation” seemed to negate a proper instruction on the use to be made of the post-offence conduct (paras 63-69).

The Court in Barton raises the “elephant in the room” concern, which is whether “accident” is a positive defence the jury will be specifically instructed to consider like self defence or duress (paras 184-293). Of course, such an instruction would only be given if the defence has an “air of reality.” This test requires the trial judge to determine “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.” (R v Cinous, [2000] 2 SCR 3 paras 47 to 57) Without entering into a thorough discussion here on that issue, put simply, the Barton Court finds that there is no self-contained “defence” of accident as such a position merely negates the essential elements of a crime, be it actus reus or mens rea. Further, the characterization of the defence as “pure accident” in the charge (para 287) was inconsistent with Mr. Barton’s admission at trial that he repeatedly and forcibly entered Ms. Gladue’s vagina with his fist. I would add that even if “accident” is a “defence,” it is arguable whether, on the evidence, the defence had any “air of reality” such that it was properly placed for consideration before the jury. Further, this emphasis on “accident,” as it is mentioned enhances the error in misdirecting the jury on post offence conduct and on the mens rea for unlawful act manslaughter, which is based on an objective foresight of bodily harm per R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC), and R v Creighton, [1993] 3 SCR 3, 1993 CanLII 61 (SCC). Additionally, the lack of direction on the objective dangerousness of Barton’s actions in the context of a manslaughter charge is in and of itself worthy of appellate intervention.

These “traditional” errors also led to the third layer of legal errors to be unpacked relating to the law of sexual assault, now so sadly prevalent in the appellate courts. These errors impact the substantive instructions on the law of murder and manslaughter, as the element of sexual assault causing bodily harm is integral to a proper understanding of the homicide instruction. This layer takes us back to the beginning as it reveals the fragility of the model jury instructions, the weaknesses inherent in a categorical “check list” approach rather than the modern contextual holistic approach, and the lack of a “humanity litmus test”, which reminds us that this case is about real people, whose voices (or lack thereof in Ms Gladue’s case) are being heard by real people. This set of errors impacts how we generally and traditionally approach the law of sexual assault but also reminds us of the need to step back and look at the case we are presenting and ask ourselves those “why” questions. For the Crown and the defence those “why” questions should be in the context of their theme/theory, strategic decisions including the thought processes on how to present the best and most effective case before the jury that promotes trial fairness. The Court in Barton identified legal errors in the instructions on the law of sexual assault but also in the manner in which the law of sexual assault was presented as part of a “boiler plate” or “fossilized” (para 8) instruction (paras 173-258).

This misdirection in the charge was preceded by and imbued with the missing procedure under s 276 of the Criminal Code or what is known as the “rape shield” law (paras 85-153 of Barton and for further discussion see R v Seaboyer;R v Gayme, [1991] 2 SCR 577). Again, this fourth layer of error relates to the admissibility of evidence that may lead to impermissible, prejudicial, and illogical inferences. Section 276 prohibits evidence whose sole purpose is to perpetuate the “twin myths” (para 89) relating to sexual assault complainants that prior sexual conduct, including being a “prostitute,” means consent was present at the time of the offence and that prior sexuality is a form of “bad personhood” making such a person of “loose morals” less credible. This prohibition is to ensure trial fairness and balance. The same balance that requires the instructing judge to remind the jury that Ms. Gladue, like all people in the justice system—the accused, the lawyers, the witnesses—must be treated with dignity and respect. A person is not to be “judged” by race, sexual orientation, gender or profession.

An application to use prior sexual history evidence for purposes other than the prohibited twin myths relating to consent and credibility is required whenever the accused is tried on a sexual assault charge. However, s 276 does not specifically reference homicide, which requires, according to s 222(5), an unlawful act. Such an unlawful act can be sexual assault or as in this case, sexual assault causing bodily harm. The Barton Court interprets the s 276 requirement that the application is engaged “in proceedings in respect of an offence” as including a homicide, where the underlying act is a sexual offence. This interpretation, using the modern approach as defined by Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, 1998 CanLII 837 (SCC), is consistent with the purpose and objective of the section. To interpret it otherwise would present an absurdity and would be contrary to Parliamentary intention in creating the protection under s 276. The section provides a mechanism whereby the accused can apply to have such evidence admitted if it is connected to a relevant matter that goes beyond the realm of myth and is needed for fair trial purposes and to fulfill the accused’s right to full answer and defence under s 7 of the Charter.

The fifth area to unpack is the obiter comments found in the reasons. There are three areas of concern involving, as already discussed, whether there is a recognized stand-alone “defence” of accident (paras 284-293), the use of public policy in defining or confining consent pursuant to Jobidon, and a call for clarification of the “reasonable steps” requirement for mistaken belief in consent under s 273.2(b). All three of these concerns are valid and worth investigating, particularly the continuing struggle to reconcile R v Jobidon, [1991] 2 SCR 714, 1991 CanLII 77 (SCC), with the much-changed legal landscape on the matter of consent since its release 26 years ago (paras 301-310 and for further discussion see my previous post on Jobidon). Again, these discussions require a detailed response for a later date, however, I would like to acknowledge the pressing issue of the clarification of the “reasonable steps” requirement as raised in Barton (paras 294-300). Section 273.2 enumerates situations where the accused in a sexual assault case cannot rely on the defence of mistake of fact in consent.  Under subsection (b) the mistaken belief in consent defence is unavailable where the accused does not take reasonable steps to ascertain consent. Soon after the release of Barton, the Supreme Court of Canada released R v George, 2017 CanLII 24267 (SCC), involving a charge of sexual interference under s 151 where the accused was 35 years of age and the complainant was 14 and a half years old. Section 150.1(4) of the Criminal Code prohibits a mistake of age defence unless the accused took “all reasonable steps”. In the George case, the Court found that where there is an air of reality to the defence of mistake of fact, the burden is on the Crown to prove beyond a reasonable doubt that either the accused did not honestly believe the complainant was at least 16 or the accused did not take all reasonable steps to ascertain the age of the complainant. Considering the similarity in wording with s 273.2, as recognized by the Barton Court, this obiter issue, which was not raised in the Barton appeal, becomes even more pressing to consider (para 294).

The sixth unpacking involves the notion of appellate review of an acquittal. Section 676(1) of the Criminal Code confines an appeal against acquittal by the Attorney General to a question of law alone. This limitation arises from the core values of our justice system. As articulated by Justice Wilson in the majority decision of R v B(G) [1990] 2 SCR 57, 1990 CanLII 115 (SCC) at 66, the restricted appellate review “reflects the fundamental principle that an accused is presumed to be innocent until proved guilty by proof beyond a reasonable doubt”. In B(G), Justice Wilson reviewed what the term “question of law” entails. Although factual errors alone, as in an unreasonable verdict or sufficiency of the evidence, would not amount to a question of law, a misapprehension of fact could be if it amounted to a misdirection on the law (pages 70-72). Throughout Barton, the Court is careful to characterize the errors as irreversible misdirections and non-directions of law.

As raised earlier in this post, the recent Supreme Court of Canada George decision may have an impact on the obiter legal issues raised by the Court in Barton on the clarification of the “reasonable steps” requirement for a defence of an honest belief in consent under s 273.2(b) of the Criminal Code. George was a case of an appeal against acquittal and it is the comments on the jurisdiction of appellate review of an acquittal, which may pose further discussion points in the review of the Barton decision. For the appellate Court to intervene in an appeal against an acquittal, there must be an error in law and that error must materially impact the not guilty verdict. The threshold for such materiality is quite high. There must be at least an error that with a “reasonable degree of certainty” has a material effect (George para 27). In paras 6 and 52 of the Barton decision, the Court suggests the identified legal errors “might reasonably” have a material bearing on the outcome, which could suggest too low of a threshold. However, later in the reasons the Court clearly finds the specific legal errors did have a material bearing on the acquittal. In any event, although it might seem like semantics, I could see an argument made on a further appeal that the threshold they used was too low. Additionally, the Court in George discussed the concern with conflating what are factual issues with legal issues, whereby the “legal” errors are actually factual ones (George para 17). Again, it would be difficult to suggest the Barton Court entered into the same error. 

A final comment to make, the seventh unpacking, is a connection I see with some of the research I have been doing on the evolving role of the trial judge in a criminal case as the trier of fact, the arbiter of the law, and the gate keeper and guardian of the courts, and the impact the sense of community or societal values is having on this “enhanced” version of the trial judge. I jokingly refer to the new and improved vision of the trial judge as “gate keeper on steroids” but really a trial judge does not sit alone but sits in the heart of the community of justice. It is the relationship or connection between all individuals in the criminal justice system which interests me and which I believe profoundly impacts the way the courts impart justice. It also, in my view, explains why we are now struggling, in an existential way, with our conceptions of what the justice system should be. Cases like Barton, Jordan and even older cases such as R v Anthony-Cook, [2016] 2 SCR 204, 2016 SCC 43 (CanLII), R v St-Cloud, [2015] 2 SCR 328, 2015 SCC 27 (CanLII), and R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), signal a new modern approach to criminal law. If this is so, then we need to be prepared to answer the issues raised in those cases, to be modern in our aspect and approach while continually ensuring the fundamental values embodied in our presumption of innocence and fair trial principles are not diminished and remain central to that modern approach.

The Barton decision is fresh and challenging. It will impact, not only the re-trial of this case but also future cases and has already been cited in a recent Alberta Court of Appeal decision (R v ARD, 2017 ABCA 237 at para 57). We are put off balance by the intricacies offered by the decision but then only until we re-adjust to a new balance. The unpacking we have just undertaken is a step toward discussion and review of what has been done in the past and whether the past can be a jumping off point that, as the Court recommends in Barton, allows for a “re-setting” to the modern approach.

 

 

Some Initial Thoughts on the Senate Report on Criminal Justice Reform

Is delaying justice, denying justice? Yes, but the delay is a denial for all not just specific groups. Justice Cory in Askov recognized the societal dimension to a speedy trial. Although s. 11(b) is couched as an individual legal right, it is in fact a value we all share and an interest involving the public good. We all have a stake in justice and therefore we are all impacted when justice fails us. I have said this many times before – admittedly almost like a broken record – but what is as stake, when the justice system fails, is who we are as a nation. In our 150th year we need to look toward a cohesive and responsive future, which respects all citizens. To me respect comes from a robust and mindful justice system that provides access to those who need it and confidence to those who do not. Thus, the priority in the Senate Report to properly fund Legal Aid across the country should be, in my view, a number one priority.

Law reform is about “best practices.” Indeed, the interim Senate Report from August 2016 and the one now placed before us speaks of this.  “Best practices” is about excellence, integrity and confidence. It is about innovation and alternate strategies. Keeping this in mind, the Senate Report makes fifty recommendations to reform the justice system but identifies thirteen as uniquely pressing and urgent.

In my view, the highlight of these recommendations are the alternate strategies, looking at the administration of court in a subtle way or rather in a different way. Do we need to be bound by the traditional court structure or is there more we can do? Can we borrow from other cultures? Can we bring something that will work better? These innovative forward looking recommendations deserves attention and should receive heightened importance. Under this rubric, we can see many of these thirteen priorities as connected, such as the effects our justice system has on our Indigenous peoples of our country. Can we not learn from their unique perspective and collaborative approach?

Additionally, taking notice of mental health and the fact that substance abuse may go hand in hand with this issue is another priority that connects with innovative strategies and to me is extremely timely and urgent.  The increase of fentanyl use and the carnage resulting from it needs to be addressed. Again, specialized courts and embedded treatment centres id badly needed to address and alleviate the pressure on the justice system.

Again, connected to the above, is the call for a hard look at what needs to be criminalized under our Code. A better and smarter approach to what behaviour needs to be underlined by the criminal law will streamline the system and increase public confidence in the administration of justice. Often administrative penalties can provide the incentive to change behaviour where the criminal law cannot or does not.

Increased and better use of technological change is a must and is an integral part of court innovation. We have technology now but is it being used in the best way? Are we ensuring that the use of technology is sustainable and manageable? Are we providing the right incentives for all stakeholders to use the best practices when it comes to technology? This needs to be explored.

The idea of “judicial officers” to do some of the work of a judge or justice requires a deeper look. It is attractive and it can work to focus the system on those issues that need judicial oversight. However, we must ensure that such a change will not simply be shifting the work elsewhere. A simple shift will not change the culture of the court system.

I have not commented on some of the priorities which cause me concern. The issue of whether there is an alternate remedy under 24(1) to a stay is a complex issue. As a defence lawyer, I am hard pressed to envision an alternate remedy when the Charter breach involves the administration of justice, the most egregious type of Charter violation. Such a violation engages fair trial and full answer and defence concerns. It is a violation that recognizes potential for miscarriages of justice. It is a weighty issue which will need to be explored further by the courts and by me as well in a future blog posting.

Also, my view of the need to retain the preliminary inquiry causes me concern with the recommendation to restrict or end the process. I have spoken on this issue before and written about possible alternatives such as permitting a civil form of questioning where the inquiry is not to determine whether there is sufficient evidence for trial. The preliminary inquiry, as I wrote in my blog on the Stinert decision, is not just an archaic vestige of the past but can be an important safeguard in our justice system which has its roots in the all-important principle of the presumption of innocence. We must be cautious in moving away from such a protection.

I will end my initial thoughts here with a promise to delve deeper into the “big picture” of the law reform in a future posting. In the meantime, I encourage everyone to review the Report and to start thinking about what kind of justice system they envision for Canada.  

 

 

 

Can R v Antic “Bail” Out The System? A 150th Birthday Wish

R v Antic is a welcome decision from the Supreme Court of Canada. No one can argue with a re-affirmation of what is at the core of our criminal justice system – the presumption of innocence. Justice Wagner neatly reminds us of the key role that the principle of fundamental justice has in our adversarial system. Indeed, one can argue that the presumption of innocence is at the very heart of our system and reflects a cherished societal value. That value is not just a “legal” one but a moral one as well. To presume people are essentially “good” is a comforting thought and one we should promote and celebrate. But, as recognized in the Antic decision, we tend to forget the “good.” This type of “reminder” is needed in the courts of law where justice is meted out in often chaotic circumstances. “Justice” happens in times when the court list seems endless and in circumstances where the parade of in-custody accused make it difficult to separate them into individuals. The Antic decision should make for a pause that is welcome.

Antic not only assists in humanizing the system but also in ensuring the courts, when faced with a heavy case load, are mindful of the authority it wields. The “ladder of liberty” approach the judicial interim release section creates is not something to be side-stepped or even two-stepped. Each rung must be deliberately weighed before proceeding onward and if a rung of the ladder feels “right,” if the weight placed on it works, then pursuant to section 515, the journey stops. It stops because reasonable bail is constitutionally guaranteed. It stops because the presumption of innocence is weighing in on the side of justice. It stops because it should.

 

Bail is complicated. If you ask any Provincial Court Judge what exactly they do day in and day out, they will tell you two things: bail and sentencing. The beginning and end, so to speak. These two procedures are the book ends of our justice system and without the proper use of them, the whole structure can fall and fail. In the post-Jordan fall-out, we need to be aware of these bookends and what a culture of complacency means as it relates to the proper administration of justice. Are we missing something then when we point fingers at trial delays or is it merely part of the heavy weight the system feels as it climbs up the rungs of the ladder.

 

Antic should then be a call to action for everyone. A call to be ever mindful of the underlying core values that push our justice system along and that make it an integral part of our unique Canadian democracy. In a few weeks, we will be celebrating our 150th year as a nation. We should at that time also be re-committing ourselves to the Charter values that define us and bring us together as a nation. This includes respect for the proper administration of justice through our commitment to make the system better for all those who walk its halls. This can and should be done by all stakeholders working together for, as Justice Wagner described it, an “enlightened criminal justice system.” Let’s take direction from the highest court and instead of resisting change, let’s make it happen. This is my birthday wish for Canada. Let’s blow out a candle and see it done.

The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

Chief Justice Lamer succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500 (CanLII):

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. (at para 91)

In the recent split decision of the Alberta Court of Appeal in Alberta (Health Services) v Bhanji, the court considered the “delicate” balance needed in determining a fit global sentence in quasi-criminal or regulatory offences where the only sanction available is a monetary one. Specifically, in Bhanji, the penalty provision in section 73 of the Public Health Act, RSA 2000, c P-37 was at issue. However, in an arena where public safety is paramount and sanctioning limited, this “delicate” balance is difficult to maintain. Indeed, the response tends to be a pure mathematical exercise, an apportioning of blame through numbers.  The Bhanji decision is an excellent reminder that regulatory behavior does matter and that sentencing is not mere number crunching, nor is it simply “the cost of doing business” (at para 17). Rather, regulatory sanctioning must be an even-handed reflection of society’s disapprobation for public welfare misconduct. In an era where the health and welfare of the “community” is becoming increasingly more important to societal well-being and sustainability, regulatory responses must keep pace with this priority.

The facts of Bhanji describe an all too familiar scenario. The motel at issue in the case was owned by a married couple through a closely held numbered corporation. The motel was part of a family inheritance and the couple, who did not live in the area, employed a manager for the property. The facility was inspected by public health officials and on June 6, 2011 the corporation was ordered to repair the facility, which was in a derelict condition, posing public health and safety hazards. Renovation work was started but some long-term residents remained on site despite the poor condition. The remedial repair efforts continued for a lengthy period, causing the health officials to issue an Order for closure of the motel on June 8, 2012. Finally, on October 4, 2012, the corporation, the couple, and their seventy-two-year-old uncle, who was helping with the renovations, were charged with 144 offences under the Public Health Act covering the period from June 27, 2011 to September 6, 2013. During some of the time covered in the Information, although the facility was not in compliance with the Act, there were no real risks to the public as there were no residents (at para 17).

The offences were narrowly framed, pertaining to several specific violations in each motel unit. Many of the offences overlapped by relating to similar violations for closely connected items of disrepair. For instance, two charges for the same unit engaged the same issue of bathroom disrepair and involved the same problem, a lack of proper waterproofing of the shower/bath area: one offence was a failure to maintain the wooden shower frame and the other offence alleged inadequate caulking. Every individual motel unit which suffered the same deficiency was the subject of a separate charge. In the majority’s view, this type of “doubling up” of charges resulted in “over charging” for the number of offences arising out of the same transaction and the number of closely related parties charged (at para 76).

The sentencing principles engaged in the regulatory sentencing process would be familiar to any criminal lawyer making sentencing submissions in the criminal courts. Section 3 of the Provincial Offences Procedure Act, RSA 2000, c P-34 incorporates applicable Criminal Code provisions, to the extent the provisions are not inconsistent with the Act or regulations, effectively importing the “Purpose and Principles of Sentencing” as found in sections 718 to 718.2. Of note, and not referenced in Bhanji is a further sentencing section, 718.21, added to the Code in 2003, on factors to consider in sentencing an “organization.” The term “organization” is defined under section 2 of the Code and includes a “body corporate” or any business association such as a company or partnership. I will return to these sentencing factors later in this post. The section that is discussed in Bhanji is the fundamental sentencing principle as codified under section 718.1, that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

This key concept of proportionality is central to the Bhanji decision as it directly engages the further sentencing concept of “totality.” The concept of totality, arising both from common law and statute, requires that the global or total sentence imposed on an accused, or in the regulatory sense, the defendant, must not be, in the words of section 718.2(c) of the Criminal Code “unduly long or harsh.” This sentencing concern was at issue in Bhanji as multiple parties were charged with multiple offences resulting in a total fine of some magnitude. The four defendants entered a plea of guilty to count one in the Information, which was an offence of failing to comply with the remedial work orders for 801 days pursuant to section 73(2) of the Act. Under that provision, an offender is liable to a fine of not more than $100 for each day of non-compliance, resulting in a potential maximum fine for each of the defendants of $80,100. Considering the close relationship of the defendants, the Bhanji family would be liable for a maximum fine of $320,400 on that count. The defendant corporation entered pleas of guilty to 40 of the further 143 charges with each charge having a maximum fine of $2000, amounting to a total maximum fine of $80,000 for the 40 offences. These further counts related to specific deficiencies identified in the original inspection. There was, therefore, an overlapping of the actus reus or prohibited acts, as delineated in these original violations, with count one, which was the failure to comply with the subsequent order to remediate those deficiencies. The total potential fine for all counts and for all defendants was $400,400.

At the sentencing hearing, the prosecutor urged the trial judge to impose a global monetary penalty that was not simply “a cost of doing business” and reflected the sentencing principle of deterrence (at para 9). The prosecutor grouped the 41 offences into three categories: general maintenance issues, items relating to public health, and more serious violations involving risks to the safety or lives of the guests and tenants. On count one, where the maximum global fine would be $320,400, the prosecutor submitted the “starting point” would be half the amount or $160,200 divided evenly between the four defendants, $40,050 per defendant (at para 10). For the remainder of the corporate convictions, the prosecutor suggested the maximum fine for the seven offences in the most serious category and the balance of the offences should attract a fine of $1000 each, again 50% of the maximum, for a total fine of $47,000. In real terms this would be a global fine of $207,200.

The defendants’ counsel, who acted for all four parties, submitted that the penalty should consider the defendants’ actions to remediate and should recognize that for a part of the period of non-compliance, the facility was without tenants. Counsel also identified the potential for “over-charging” through multiple counts against multiple closely related parties. Additionally, the motel, due to its poor state, was not profitable. In other words, the fines would not be merely a “cost of doing business” but would be a very real penalty to the defendants. Counsel submitted the fine on count one should be $2500 for Mr. and Mrs. Bhanji and $1000 for the uncle. For the corporation, the global fine should be $52,250 with a “global discount” for totality, bringing it down to $22,250. The final amount for all defendants would be $28,250, close to 14% of the fine suggested by the prosecutor.

The sentencing judge acknowledged that the sentencing principles engaged in the case involved deterrence, proportionality and totality. On count one, involving non-compliance with remedial work orders, the court imposed $20,000 fines on Mr. and Mrs. Bhanji separately and a $3000 fine on the uncle. The corporation was fined $50,000 plus the maximum fine of $2000 for seven of the most serious breaches and $1000 for each of the remaining 33 charges for a total of $97,000. The global fine for all counts on all defendants equaled $140,000 (at paras 18-19).

On appeal the Summary Conviction Appeal Judge found that the global fine, based on precedent, was not proportionate to the gravity of the offence and the culpability of the various offenders and that therefore the sentencing judge had imposed an unfit sentence (at para 21). Further, the sentencing judge failed to appreciate the mitigating factors that the defendants were not in flagrant or deliberate violation of the work orders and that the motel was empty for much of the non-compliance period. Additionally, although the sentencing judge referred to the correct sentencing principles, there was no indication of how the judge applied the concept of totality to the global fine. Ultimately, the sentence as it stood was unduly harsh and excessive.

The Summary Conviction Appeal Judge allowed the appeal, reduced the sentence on count one to $5000 each to Mr. and Mrs. Bhanji and $25,000 to the corporation, the entity primarily responsible for the offences. For the 40 corporate offences, the sentence was reduced to $25,000. The total fine on all defendants was $63,000. The appeal judge did not adjust the global amount further as the sentence, globally, was fit and appropriate in the circumstances.

Leave to appeal this sentence to the Court of Appeal was permitted on a narrow basis, which the majority called “unfortunate” (at para 31), as it was based on a specific question of law. The question on appeal asked the court to consider the approaches to the application of totality in two previous Alberta Summary Conviction Appeal decisions, R v Goebel, 2003 ABQB 422 (CanLII) and R v 50737 Alberta Ltd, 2009 ABQB 476 (CanLII) to determine if they “overlap, compete with, or duplicate each other, so that full application of both may improperly overcompensate or double deduct for totality” (at para 29). The majority decided that to adequately answer this question, the court needed to consider the broad implications of applying totality in regulatory sentencing where a fine was imposed.

In Goebel, Justice Slatter, who was then on the Court of Queen’s Bench and was a member of the majority in Bhanji, overturned the sentence as the sentencing judge inappropriately imposed a global sentence based on the “condition of the building” as opposed to imposing a fit sentence on each count and then adjusting for totality. In effect, the sentencing judge erred as he imposed a sentence without regard to the nature and severity of the breach. The court found that the approach of the sentencing judge to sentence globally was “not an appropriate way of initially setting a sentence in the case of multiple convictions on multiple counts” (Goebel at para 86). The appropriate approach, according to Justice Slatter, was to impose an appropriate sentence for each count and then to review the global sentence to ensure it was not unduly harsh or excessive. As the sentencing judge “never turned his mind to the appropriate sentence for each count” and gave no “express reasons” for the decision, the matter was remitted to the sentencing court to do so (Goebel at para 89). It should be noted that the offender in Goebel was an individual charged with several Public Health Act violations, some of which were failures to comply with work orders (Goebel at paras 83-84). This case did not engage concerns with sentencing closely-related multi-parties with overlapping multi-charges.

The sentencing approach and the type of defendant in R v 50737 Alberta Ltd. were much different than in Goebel and more akin to the scenario in Bhanji. There, Justice Burrows was reviewing the sentence of three closely-related defendants, a husband and wife and a closely held corporation, for 54 violations of the Public Health Act. The sentencing judge applied the approach recommended by Justice Slatter in Goebel but, according to Justice Burrows, imposed demonstrably unfit sentences in relation to some of the counts by failing to consider multiple charges arising from the same breach in multiple housing units, namely guardrails not to code and deteriorating concrete. It was therefore an error to impose the same fine for each count of the same violation even before consideration of totality of the sentence. In Justice Burrows’ view, “the moral blameworthiness of a violation in respect of 15 balconies is not 15 times the moral blameworthiness of a violation in respect of one balcony when all violations occur at the same time” (50737 at para 33). Instead, the sentencing judge, in considering the totality principle, should have considered a graduated fine for the multiple charges based on the same prohibited act and arising from multiple units (50737 at paras 35-38).

In effect, Justice Burrows considered these type of offences as engaging the criminal law concept of ordering sentences of imprisonment on multiple charges to be served at the same time or concurrently. By employing this power, the sentencing court, in a criminal case, ensures the global sentence adheres to the principle of totality. The imposition of concurrent terms is particularly appropriate where multiple charges arise from the same subject matter or the same series of events. In the regulatory field, where often a monetary penalty is the only sanctioning option, as in the Public Health Act, fines cannot be imposed concurrently but can be imposed pursuant to the spirit of that concept by utilizing graduated fines for similar offences. In R v Great White Holdings Ltd., 2005 ABCA 188 (CanLII), Justice Côté commented on this anomaly and emphasized the duty on the court to review the sentence for its global cogency, especially when arising out of the same set of facts (paras 26, 29). Not only can fines not be imposed concurrently, but they must also be paid as a global amount. Totality is therefore a controlling feature of sentencing fine-only offences where there are multiple counts.

Additionally, the Public Health Act contemplates fine-only penalties within a very specific range. In criminal sanctioning, the options for sentencing an individual offender are varied, providing for a range of sentencing options and for the imposition of a combination of those options. For instance, under section 734(1) of the Criminal Code, a court can order a fine in addition to another sentencing option such as probation or imprisonment. Under section 735, an organization, when convicted of a summary conviction offence, is subject to a maximum fine of one hundred thousand dollars, in lieu of imprisonment. As an aside, traditionally, there were few sentencing options for a corporation convicted of a criminal offence other than monetary sanctions, however the Code amendments which came into force in 2004 provided for the imposition of probation orders on offender organizations. The conditions of these orders can have a profound impact on the corporate culture of an organization by requiring the establishment of “policies, standards and procedures” to reduce the likelihood of further offences (see section 732.1(3.1)(b) of the Criminal Code). For more discussion of these changes in the Code, read A Plain Language Guide to Bill C-45 – Amendments to the Criminal Code Affecting the Criminal Liability of Organizations.

Although criminal law principles are applicable, the court recognized that there are very real differences between regulatory and criminal offences, which must modify the general sentencing approach to proportionality and totality (at para 32). Regulatory offences are not constitutionally required to be full mens rea offences. The presumptive mens rea for regulatory offences, per R v Sault Ste Marie, [1978] 2 SCR 1299 (CanLII), is strict liability, a form of civil negligence. This parliamentary presumptive intention can be rebutted by Parliament in favour of absolute liability, requiring a “no fault” element. However, in accordance with section 7 of the Charter and our principles of fundamental justice, an absolute liability offence is only viable where there is no potential loss of liberty. In other words, where the penalty is fine-only. The fact, therefore, that the public health sanctioning system is purely monetary may suggest that these offences require no proof of a blameworthy state of mind or even no inference of such a fault requirement from the proof of the prohibited act. The concept of proportionality then, that the sanction be consistent with the gravity of the offence and the blameworthiness of the offender, may not have the same gravitas as in the case of an offence where an element of fault is required. However should the offender facing an absolute liability offence have an intention to commit the offence or, in other words, be found blameworthy, that would certainly be a factor aggravating the sentence.

In R v Maghera, 2016 ABQB 50 (CanLII), Justice Jeffrey commented on this aspect of sentencing for absolute liability regulatory offences. The defendant in that case entered pleas of guilty to offences under the Alberta Fair Trading Act, RSA 2000, c F-2, which did attract penalties of incarceration. Nevertheless, Justice Jeffrey noted that “typically the degree of moral blameworthiness will be less than in criminal offences, as will be also the gravity of the offence” (Maghera at para 12). On that basis, there is a different approach to regulatory sentencing which does not require proof of a blameworthy state of mind. The primary sentencing objective in those cases is the “balancing” of “competing considerations in favor of rehabilitation of the offender and protection of the public” (Maghera at para 13). This shift, from individual interests to public interests or from denunciation to the protection of the public from harm, is in a sense the hallmark of a regulatory offence as opposed to a criminal one. It is the consequences of the behavior being sanctioned as opposed to the culpability of the offender being punished. However, the more serious the regulatory offence, as evidenced by the fault requirement, which in turn is proportionate to the possible punishment, the closer that regulatory behaviour comes to criminal law. In the end, much regulatory behaviour, as in the Public Health Act, is concerned with the potential or risk of harm as opposed to actual harm. Sentencing for risk or the potentialities of the conduct is inherent in much regulatory sanctioning (Maghera at para 14).  

The majority in Bhanji found no inconsistency between the Goebel and 50737 decisions. In their view, each case applied the same principles but in differing fact situations. In sentencing, a judge could use either or both approaches depending on the case providing the judge did not “double count” or use totality as a double deduction of the appropriate sentence (at para 78). The majority goes further to give an excellent survey of the sentencing principles to be employed in the case (at para 79). This paragraph gives clear direction for sentencing in this area where totality is engaged.

To elucidate the principle of totality and the approaches used, the majority referred to some previous Alberta Court of Appeal decisions in criminal cases but did not refer to their most recent decision, R v Meer, 2016 ABCA 368 (CanLII). Coincidentally, Justice Watson, the other member of the Bhanji majority, was a member of this panel. Although it was a criminal case, the appellant in Meer argued that the appropriate approach in a case of multiple charges, some of which are related factually, is to group those offences into like categories and then apply the totality principle on each group or category of offences. Then, the sentencing judge, as a “last look,” should review the total global sentence imposed to ensure the global sentence is appropriate. This requirement for an “intermediate totality adjustment” was soundly rejected by the Court of Appeal (Meer at paras 17-19). However, the court did find the sentencing judge erred by not applying the statutory totality requirement under section 718.2(c) of the Code as required in the earlier Alberta Court of Appeal decision of R v May, 2012 ABCA 213 (CanLII), (at paras 13-14), a decision which is referenced in Bhanji.

In the May decision, and as echoed in Bhanji, totality engages the principles of proportionality and of restraint (see R v Proulx, [2000] 1 SCR 61 (CanLII), at para 90, Lamer CJ), both of which must be balanced, indeed “delicately” balanced, in arriving at a just and appropriate sentence. Restraint, returning to Chief Justice Lamer in M(CA), is an underlying tenet of our sanctioning system which tempers the potentially heavy hand of retributive justice by fashioning a fair and human sentence which “invigorates” (see May at para 14) public confidence in the justice system and thereby is consistent with the community’s sense of justice. The comments in Proulx are specifically directed to incarceration as the “last” resort as recognized under section 718.2(d). The sentencing judge, although not required to apply intermediate totality, was required to apply totality globally. In M(CA) Chief Justice Lamer explains the purpose of totality is “to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender” (at para 42). In this paragraph, Lamer CJ approves of the description of totality as requiring “a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is ‘just and appropriate’.”.

However, the Bhanji majority does refer to the case of R v Elliot, 2012 ABCA 214 (CanLII), on the totality issue. Elliot is not referenced in the Meer case but is a decision rendered on behalf of the court by Justice O’Ferrall, the dissenter in Bhanji, as a Memorandum from the Bench. Of interest, Justice Watson, a member of the majority in Bhanji, was also on the Elliot panel. In Elliot, Justice O’Ferrall, for the court, outlines the totality approach to multiple counts, again, as consistent with the earlier case of Goebel and the later decision of Meer (at para 7). Individual sentences must be fit and appropriate, then the court considers which sentences should be concurrent or consecutive based on similarities in the fact situation, and then a final review of the global sentence to ensure compliance with section 718.2(c). If the global sentence is unduly long or harsh, then the judge should reduce the individual sentence, even though in isolation the sentence is fit, or direct that some consecutive sentences be served concurrently. I would add to this discussion that the court in determining concurrent sentences must also be mindful of the direction under section 718.3(4)) to consider imposing consecutive terms under certain circumstances, including where the offences do not arise out of the same series of events or where the accused was on judicial release at the time an offence was committed or where the offences were committed while fleeing from police. The clear tension between the approach to totality and this statutory requirement suggests that sentencing judges must clearly and explicitly articulate how they are crafting a sentence where totality is an issue.

In the end, the majority, after a thorough discussion of the relevant sentencing principles engaged in the case and after due consideration of the aggravating and mitigating circumstances, found the Summary Conviction Appeal Court Judge did not error in overturning the sentencing judge’s disposition and reducing the global fines (at paras 21, 24). Nor did they find, as urged by the appellant, that the appellate judge “double counted” or improperly applied totality concepts in imposing the individual sentences and in the final “last look” (at para 76). As discussed above, the majority was not satisfied that in the unique circumstances of regulatory sentencing, where there is no option to impose concurrent sentences, and where there is a suggestion the offences “overlap” both factually and by relationship of offenders, the original sentence was globally appropriate. The sentencing judge did not merely fail to adequately compensate for totality, the judge also failed to adequately consider the mitigating features of the offence as well as the multi-party/multi-offences conundrum (at para 76). The Summary Conviction Appeal Judge therefore properly reconsidered the matter by considering all relevant sentencing principles.

The dissent of Justice O’Ferrall offers a different perspective, finding there was no error in principle made by the sentencing judge and that effectively the Summary Conviction Appeal Judge substituted his own opinion on a sentence in which there was no clear error. The dissent does not share the multi-party totality concerns that the majority found to be engaged. Indeed, Justice O’Ferrall questions whether the principles of totality as conceived in criminal law even have a place in the regulatory context when monetary fines are the norm (at paras 85, 94, 108, 109). Neither the approach in Goebel nor in 50737 Alberta Ltd., in Justice O’Ferrall’s opinion, was therefore applicable. There was no “discretion” to forgive any of the 801 days of non-compliance and the sentence should reflect that. In finding the original penalty fit, Justice O’Ferrall viewed the aggravating and mitigating features of the case in a much different light than the Summary Conviction Appeal Judge and the majority decision. His position emphasizes the regulatory nature of the sentencing and the overarching objective of regulation to, in the words of Justice Blair of the Ontario Court of Appeal decision in R v Cotton Felts Ltd, (1982), 2 CCC (3d) 287, “enforce regulatory standards by deterrence.” The complexities of sentencing are further reinforced by the special nature of organizations and those peculiar factors that must be considered in sentencing such an offender as evidenced by the Criminal Code sentencing factors in section 718.21. However, it should be noted that some of those factors are more applicable to a large corporation, one less closely held than the case at bar.

The Bhanji decision, despite its specific application, does remind us of the difficulties in crafting an appropriate sentence in any area of criminal or quasi-criminal law. The disjunction between the majority and dissent decisions exemplifies the inherent obstacles found in the “delicate art” of sentencing and helps explain the panoply of decisions, at all level of courts, on the proper approach to those principles. This “delicate” balance of sentencing becomes more fragile and at risk when a confluence of common law and statutory sentencing principles is engaged. In Bhanji, there are issues of proportionality, totality, consecutive terms, multi-parties, multitude of counts, corporations, and closely related offenders superimposed on the strictures of regulatory liability and regulatory sanctioning. In the end, the sentencing judge’s “last look” must, colloquially, “do the right thing.” But how? How does a court reflect society’s desire to protect with the law’s commitment to principle? Do we simply graft onto the regulatory process the punitive sanctioning principles from criminal law and from those principles craft regulatory principles consistent with the uniqueness of the regulatory arena as a quasi-criminal process? Is that even simply done? These are in fact the difficult issues at the heart of the Bhanji case.

Although the court in Bhanji is rightly concerned with this delicate balance, when reading through this case and the other cases engaged in this issue, one realizes that perhaps, as suggested by Justice O’Ferrall’s dissent, this “last look” loses meaning when applied to the regulatory field. To be sure, the courts have it right in terms of principle but the ultimate question may engage whether those principles themselves are appropriate considering the heightened importance of regulation and the deepening moral values we attach to proper regulatory conduct. There is a tension there between what we once thought regulatory behaviour to be - consequence-based conduct which is not inherently wrong - as opposed to what we feel now - conduct which has the great potential to be inherently wrong. In a sense, it is our initial approach to these cases which deserves a second look, including a move away from straight monetary penalties to more “creative” sentencing as found in other regulatory statutes and even as envisioned under section 732.1(3.1) of the Criminal Code, dealing with possible probationary terms on organizations. To end with Lamer CJ’s metaphor in M(CA), the “delicate art” of sentencing needs artists who are fully equipped for their task. 

Episode 49 of the Ideablawg Podcasts on the Criminal Code of Canada: “Just Desserts?” The Offence of Assisting a Deserter Under Sections 54 & 56

In this episode, we will discuss two sections closely related to previous sections involving offences against the integrity of Canada’s security forces. Section 54 specifically relates to the armed forces. As with mutiny, the offence is also found in the National Defence Act but in much greater detail from section 88 (offence of desertion) to sections 90 to 91(absence without leave). The offence was in the 1892 Code (s. 73) and in the precursor to the Code, Burbidge’s Digest of the Criminal Law in Canada (Article 71).

Section 54, entitled “Assisting Deserter,” reads as follows:
54 Every one who aids, assists, harbours or conceals a person who he knows is a deserter or absentee without leave from the Canadian Forces is guilty of an offence punishable on summary conviction, but no proceedings shall be instituted under this section without the consent of the Attorney General of Canada.

Originally, in the 1892 Code, the offence was a hybrid or dual offence, permitting the Crown to prosecute either by indictment or summarily “before two justices of the peace.”  The maximum penalty by way of Indictment was a fine and imprisonment “in the discretion of the court.” If proceeding summarily, the maximum penalty was a two hundred dollar fine with six months imprisonment in default. The 1892 offence required that the accused person was not a member of the armed forces.

Section 56 specifically relates to the RCMP, our national police service, which has militaristic parallels in structure and purpose. This offence too had an equivalent in Burbidge’s Digest under Article 73 and was also in the 1892 Criminal Code under s. 75. Of course, at that time the reference was to the North-West Mounted Police. The current Royal Canadian Mounted Police Act, RSC, 1985, c. R-10 does not have a desertion section per se but does have a provision for terminating a member’s pay and allowances if absent from duty under s. 22. Under the RCMP regulation and pursuant to the Code of Conduct, a member must “remain on duty unless otherwise authorized” or be subject to discipline.

Section 56, entitled “Offences in relation to members of R.C.M.P.,” reads as follows:

56 Every one who wilfully

(a) persuades or counsels a member of the Royal Canadian Mounted Police to desert or absent himself without leave,

(b) aids, assists, harbours or conceals a member of the Royal Canadian Mounted Police who he knows is a deserter or absentee without leave, or

(c) aids or assists a member of the Royal Canadian Mounted Police to desert or absent himself without leave, knowing that the member is about to desert or absent himself without leave,

is guilty of an offence punishable on summary conviction.

The actus reus component of section 54 requires the accused person to “aid, assist, harbours or conceals” in committing the offence. Similar terminology is used under s. 56 in offences relating to RCMP officers. This phrase is also used under s. 299 of the National Defence Act to describe the offence of accessories to desertion or absence without leave under that Act. Section 23 of the Criminal Code, the offence of accessory after the fact, as discussed in a previous podcast (episode 27 and the text can be found here), uses slightly different terminology to describe the prohibited conduct, using the phrase “receives, comforts or assists.” The phrase “harbours or conceals” is found under section 83.23 of the Criminal Code, which is the offence of concealing a person who carried out or is likely to carry out terrorist activity. The offence of procuring, under s. 286.3, refers to “recruits, holds, conceals or harbours.” Similar language is found in the human trafficking section 279.011and 279.01 and in abduction sections 281 to 283. Of course, the party section 21 requires the accused person aids or abets under subsection 1 but under subsection 2, common intention, the act is assisting. It seems, therefore, that s. 54 is a combination of a party offence and an accessory after the fact offence.

It is difficult to contemplate when an act would be “aiding” rather than “assisting.” Dictionary meaning suggests the two words are effectively synonyms as “aid” means “to give assistance.” The term “harbour,” according to the dictionary, includes an aspect of “comfort” as it is defined as “a place of security and comfort” similar to a “refuge.” “Comfort,” is defined as “to give hope and strength to” or “to ease the grief or trouble of.” In the 2016 Ontario Superior Court of Justice decision considering the offence of human trafficking in R v D’Souza, Justice Conlan, in paragraph 146, defined “harbour” narrowly as simply providing shelter and “conceal” as “to hide or keep secret.”

It should be noted that the s. 54 offence cannot be prosecuted without the consent of the Attorney-General of Canada. This requirement suggests the prosecution of this offence requires special scrutiny, adding an additional layer of prosecutorial discretion. There are other offences in the Code requiring similar consent, for example, such as offences related to the Space Station and are committed by crew members of the Space Station pursuant to sections 7(2.3) and 7(2.31). This gives some idea of the delicacy of the offences and requirement for a second look by the federal government prior to prosecution.

The mens rea component for s. 54, as subjective mens rea, can be found in the knowledge requirement that the accused “know” the person so assisted is “a deserter or absentee without leave from the Canadian Forces” or from the RCMP. Again, section 54 must be read in light of the deserter and absentee without leave sections in the National Defence Act. Clearly, the Criminal Code section is to be used in an especially egregious case of accessory after the fact and is an offence in a range of offence-like sections found under the military legislation.  Section 56 also has a knowledge requirement under subsection b and c but the offence must also be committed “willfully.” As per Buzzanga and Durocher, 1979, ONCA, the word can suggest a requirement for a high level of intention or it can denote the general form of subjective mens rea, which includes recklessness. However, considering the additional knowledge requirement, an argument can be made that the accused must have a high level of intention in order to commit the offence.

I could not find any relevant case law on these two sections suggesting they are rarely used. No doubt the requirement for the consent of the Attorney General of Canada to prosecute the s. 54 offence contributes to this lack of use. It also suggests that these sections need to be reviewed in any Criminal Code reform and possibly repealed as historical offences no longer required in our criminal law.

 

 

 

On First Looking At the New Code Amendments (with thanks to Keats for the title)

In March of 2017, the federal government renewed its commitment to modernize the Criminal Code by tabling legislation to repeal the so-called “Zombie” laws – a term coined by Professor Peter Sankoff to denote those criminal laws that are the “walking dead” of the Criminal Code – still on the books but deemed unconstitutional. Although a step in the right direction, this announcement seemed like a “no brainer.” It also just happens to be consistent with the mandate letter, sent by the Prime Minister to the Minster of Justice, admonishing the Minister to uphold the Constitution and respect the Charter.

Besides repealing the unconstitutional sections, the list of problems with the Criminal Code remains. This list is, well, longer than the Code should you desire to place each page side by side. With well over 849 sections (considering the “accordion” sections whereby the government folded in between sections, other sections, such as the 33 sections residing between s. 487 and s. 488: for further information read my blog entitled The Infinite Lists of The Law), the Code is a statutory behemoth, a virtual cornucopia of delights including archaic laws such as the rarely used forcible detainer at s. 72(2)) jumbled with brand new crimes, once considered regulatory offences, such as the new offence (circa 2014) of selling unpackaged stamp-less tobacco products under s. 121.1.

Recently, however, the government appears to be taking another step toward the modern by unveiling their revisionist vision through some new amendments to Code sections. This came about serendipitously as the government needed to fulfill an election promise of decriminalizing the use of marijuana. To do this, the government realized they needed to not only remove laws but to fix them. So as part of the modernization of our drug laws, the government revised the Criminal Code sections on impaired driving (sections 253 to 259), and while they were in the area anyway, to freshen up the other driving offences, namely dangerous driving under s. 249, with a “new look.”

As soon as these legislative changes were tabled in Parliament, everyone brought out the magnifying glasses. Each word of the proposed legislation, newly delivered, has been scrutinized. Mainly, the focus is on the impaired driving amendments, which, quite frankly, look a little Charter unfriendly, despite the stern warning of that mandate letter to be respectful. But leaving the Charter aside, which it appears the government may be doing with these sections, let us not consider the minutiae of this Bill, rather let us consider the general efficacy of the government’s approach.

Putting away our magnifiers then, we should consider the “big picture,” and ask whether the federal government is truly modernizing the criminal law and bringing it kicking and screaming into the 21st Century. It would appear, in fact, at least with the impaired driving amendments, that this is not what is happening. It would appear the government is instead merely back filling; reacting to weaknesses in the old legislation by plugging up the holes, like the little Dutch boy, to ensure the dike doesn’t leak. The changes are therefore reactive, not proactive. They are backward looking, not forward facing. The drafting of these new sections does not assist us in walking toward the future. The sections are prolix and dense. Furthermore, the amendments do not send the message of a new Canada which is tolerant, diverse and progressive. The sections download onto the citizen the burden of ensuring that their conduct, even after they are no longer driving, wherever they may be, whatever their emotional or physical state may be, is reasonable. Whatever that means. At the same time, the new sections relieve the state of the burden of justifying the use of its authority to investigate. Even without glasses, it seems the revisions are not very 21st century.

Turning to the other changes, quietly placed in the Bill is the new Part VIII.1 (which by the way is still perpetuating the archaic use of Roman Numerals) entitled “Offences Relating To Conveyances”. At first blush, one has visions of property offences relating to land titles. On a closer look, the “recognition and declaration” (the only other legislation this kind of section is found is in the Alberta Bill of Rights, RSA, 2000) in section 320.12 advises us what we already were told by Justice Cory in Hundal that licensing, as in operating a “conveyance,” is a privilege and the rules of the road, so to speak, must be observed. Section 320.11 defines “conveyance” as a motor vehicle, vessel, aircraft or railway equipment. These conveyances were also subject of the now to be replaced dangerous operation section 249. Section 320.13, as the new dangerous operation section, creates an offence where a conveyance is operated, having regard to all of the circumstances, dangerous to the public. The soon-to-be-replaced s. 249 is similarly worded, although it gives a clearer description of what those circumstances could be, such as “the nature, condition and use of the place” of operation.

After this closer look, it becomes clear that this “new” Part is not really new at all but merely a short hand version of the old.  The new changes are not a change but a touch up, a change in nomenclature, maybe even a nod to the past case law. Again, what is the impetus of this change? The decriminalization of marijuana, which requires a change to the impaired driving laws, which requires the government to react to previous case law by filling in legislative gaps, which requires the government to change all of the driving offences, which causes the government to show they are modernizing the Code by simplifying the sections.

What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

 

Order In the Skyways: A Comment on the Regulation of Drones

The increasing popularity of drones is attracting the attention of the regulatory process as municipalities, such as Calgary, attempt to control the use of drones in public areas through the bylaw process (see section 24(c) of the City of Calgary Parks and Pathways Bylaw 20M2003). In fact, the issue has become so pressing that the federal government recently announced immediate action through the Interim Order Respecting the Use of Model Aircraft  by amending the Aeronautics Act RSC 1985, c. A-2 to more specifically address the “significant risk” the operation of drones have “to aviation safety or the safety of the public.” However, regulation in this nascent area of recreation has not been without difficulties. The extent to which the regulatory regime can effectively and fairly maintain order in the skyways may appear a simple task but as with any statutory process, “the proof is in the pudding” or as in the recent summary conviction appeal against conviction in R v Shah, 2017 ABQB 144 the “proof,” involving the appropriate application of the standard of proof, was lacking.

The Appellant in this case, ably represented both at trial and on appeal by our very own Student Legal Assistance, was flying a recreational remote controlled drone during the evening hours of January 16, 2016 when he was charged under section 602.45 of the Canadian Aviation Regulations SOR 96/433 enacted under the Aeronautics Act. The section states that: “No person shall fly a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.”

R v Shah is an appeal of a summary conviction entered at trial in Provincial Court.  Three grounds of appeal were advanced before Madam Justice J. Antonio (at para 2). The first ground concerns the trial judge’s application of the standard of proof. The second ground involves the proof of the required actus reus elements of the offence, namely the requirement the model be flown “in a manner...likely to be hazardous to aviation safety.” The third ground raises the issue of reasonable apprehension of bias on the basis that the trial judge “pre-determined” the case. The first ground was successful while the other two were dismissed. Justice Antonio has ordered a new trial.

The facts are brief but provide insight into the issues raised on appeal. While on road patrol, two officers observed “some blinking lights in the dark sky” above a park located “just south” of the main runway of the Calgary International Airport (at paras 4 and 6). The officer noticed the lights were above the trees, which the officer “estimated” as 80 feet tall (at para 4). When the officers arrived on scene located at a nearby park, the Appellant was packing away his recreational drone into his car. While the officer was conversing with the Appellant, passenger planes were “coming in for landing with wheels down” at an “estimated” altitude of 200 to 250 feet (at para 6). The officer, did not however, notice any planes in the air when the drone was in use. According to an officer who later tested the Appellant’s drone, the object could fly up to an “estimated” height of 200 feet (at para 7).

The officers were not qualified to give expert evidence and no other evidence was called by the Crown in support of the prosecution. Although initially the Crown attempted to rely on a regulatory requirement imposing a 9 km no-fly zone for drones near an airport, an adjournment revealed that in fact there was no such regulation in place at the time of the incident. Ultimately, the trial judge convicted the appellant of the offence in a brief oral judgment.

Turning to the first ground, the error which resulted in an order for a new trial, Justice Antonio found that in convicting the appellant the trial judge failed to correctly resolve the required standard of proof. It was argued, and referenced by the trial judge, that the matter, as a regulatory offence, was one of strict liability. A strict liability offence, as described by Justice Dickson at page 1326 of the seminal case on regulatory or public welfare offences R v Sault Ste Marie [1978] 2 SCR 1299, is an offence for which the Crown need not prove mens rea as the proof of the conduct is prima facie proof of the offence at which point the burden then shifts onto the defendant to establish a due diligence or mistake of fact defence. Strict liability offences are, as Glanville Williams explained in Criminal Law (2d ed.): The General Part at page 262, a form of negligence with the focus on whether the defendant, as a reasonable person, took all due care in performing the legitimate yet potentially harmful activity.

This form of liability was reviewed under section 7 of the Charter in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 where the Supreme Court unanimously concluded that the Charter requirements are “met in the regulatory context by the imposition of liability based on a negligence standard” (Justice Cory at p 241). However, as proof of the actus reus elements of the offence is key to conviction and considering the Charter values reflected in the presumption of innocence, the Crown, is obliged to prove the actus reus components of a regulatory offence beyond a reasonable doubt (at p 248). This basic proof principle was not clearly recognized by the trial judge in the Shah case when he stated in his reasons for conviction that the Crown “met the burden of establishing” the actions of the Appellant to his “satisfaction, and I’m not certain whether it’s beyond a reasonable doubt” (at para 13). It was this clear error, as found by Justice Antonio, which resulted in the quashing of the Appellant’s conviction and the ordering of a new trial. Hopefully, this decision will highlight this key requirement in future such prosecutions. Certainly, it is the obligation of the Crown to articulate this standard in their submissions.

The second ground of appeal was dismissed by Justice Antonio but still deserves attention. Essentially, the Appellant’s argument was that the Crown was required to prove the drone was operated by the Appellant “in a manner...likely to be hazardous to aviation safety” by way of expert evidence, and that by not doing so the Crown failed to provide any evidence upon which the trial judge could reasonably convict. The Appellant further alternatively argued that the trial judge erred in his interpretation of the term “likely.” Justice Antonio collapsed these two issues and entered into a statutory interpretation exercise, focusing on the word “likely” as it modifies the term “hazardous.”

Through this approach, Justice Antonio found that the required elements of the offence are directed to the likelihood of an aviation hazard, implying “a risk of a risk” and therefore casts “a broad actus reus net” (at paras 21 and 22). On that basis, considering the wide range of possible hazards, Justice Antonio found expert evidence on that issue may or may not be required depending on the facts of the case. As an example, she referred to the R v Khorfan, 2011 ABPC 84 (CanLII) decision wherein Judge Fraser considered expert testimony on the use of a halogen spotlight a “hazard” under the regulations. In Justice Antonio’s view, it would “fall to the next trial judge to determine whether the evidence before him or her” was sufficient to prove the conduct fulfilled the offence requirements of “likely hazardous” (at para 25).

Although Justice Antonio’s reasoning on this issue is attractive and provides for a robust reading of the section consistent with the objective of the regulatory scheme as aviation safety, the salient issue here is not how “likely hazardous” may generally be proven but whether in this specific fact situation there was evidence upon which a properly instructed trier of fact could reasonably convict. In this case, the only evidence before the court was from two officers who had no particular knowledge or expertise in estimating height, never mind any ability to “estimate” the height of an airplane at night in the backdrop of a darkened sky. As cautioned in Graat v The Queen, [1982] 2 SCR 819 (CanLII) police officers testifying in this manner are giving a compendium of observations, which are merely factual observations similar to any other witness’s factual observations. Their evidence is not enhanced by their position as police officers. In other words, these officers were in no special position to make the height estimates. Officers may have some expertise in assessing speed and vertical distance due to their daily role as police officers who enforce traffic regulations, however. they have no particular expertise in assessing altitude. This is not a road hazard but an aviation safety hazard.

In fact, the federal aviation regulations (section 602.14 of the Canadian Aviation Regulations) specify aircraft height maximums when flying over a built-up area. Although the regulations also indicate that those maximums do not apply when the aircraft is landing, there is absolutely no evidence in the Shah case at what point any of those observable aircrafts were in their landing and therefore not subject to the regulated height restrictions. The issue here is not just if the conduct was a “likely hazard” but is this conduct, as observed by the officers on the evening in question, “likely hazardous to aviation safety.” To prove the risk of the conduct to aviation safety beyond a reasonable doubt more cogent evidence was needed to connect the inferences than simply a lay person’s belief that this drone “might” reach a certain “estimated” height and “might” therefore be a hazard to an airborne aircraft which “might” be at another height. Proof beyond a reasonable doubt cannot rest, without more, on such imprecise opinion evidence dependent on an imprecise chain of reasoning. In Professor Wigmore’s words (7 J. Wigmore, Evidence, 1917 at 1-2.), a witness must be a “knower, not a guesser.” This evidential requirement is even more important considering the new changes announced to the aviation regulations which provide for precise statutory limits within which a drone cannot be flown. The new legislation prohibits the flying of recreational drones “at an altitude greater than 300 feet AGL” or “within 9 km of the centre of the aerodrome” circumscribing what would constitute a likely hazardous situation. It is interesting to note that the height in the new regulations differs from the height “estimates” provided by the police officers.

Clearly, there needs to be reliable and probative evidence on the record to make these findings be it expert evidence or not. In the Khorfan decision, for instance, the prosecution called non-expert evidence from an air traffic controller who was on duty the evening of the offence and gave crucial evidence on “aircraft taking off and their height and angle” (at para 30) at that time. This kind of evidence could provide the needed connection between the drone flight altitude and the “likely” aviation safety hazard. This argument ties into the first ground of appeal where concerns were rightly made with the trial judge’s application of the appropriate standard. There was simply no evidence upon which to convict beyond a reasonable doubt.

The final ground of appeal concerns the trial judge’s role as an impartial arbiter of the case, a role which is at the heart of our adversarial system. The test for unreasonable bias for good reason requires a high standard and Justice Antonio correctly articulates the difficulties in advancing such a ground, particularly in provincial court where justice must be done not only fairly but also efficiently. On a certain view, however, this ground is also linked with the first and second grounds of appeal in that the failure to properly apply the required standard of proof resulted in findings which may appear cursory and “pre-determined.”  

In the end, this prosecution was unsatisfactory. Considering the rise in regulation of our day to day activities, this case should be viewed as a caution that even in the realm of public safety, convictions must be based on sound principles and evidence.

Some Thoughts On Teaching Evidence

This week I began teaching Evidence, a required course for the 2Ls. This is my first time teaching the course and yet the rules and principles of evidence seem second nature to me. True, this can partly be explained by my legal career, involving criminal trial and appellate practice, in which I used these principles on a very practical basis. Perhaps, it can also be explained by the fact these rules and principles are generally a matter of common sense and human experience. Certainly, the basic rule of the admissibility of evidence is predicated on that concept: admissible evidence, as a matter of common sense and experience, is relevant when its introduction tends to make a fact more or less probable than the fact would be without it.

However, this initial feeling of comfort and familiarity with the rules and principles of evidence is perhaps why teaching and learning evidence is so crucial to a modern legal education. True, many of the 2Ls in my course will not be trial and appellate lawyers and many of them won’t be obsessively sifting through Supreme Court of Canada judgments to find thematic connections. Rather, evidence is meaningful not because of the rote application of the rules but because of the underlying purpose of these rules which cause us to question the rules and principles themselves. In many ways, this exploration of evidence leads us to re-consider the meaning of law itself.

To make my case, I will refer to some examples from this first week of the course by starting with this concept of “common sense.” Indeed, throughout the trial process, common sense and human experience is a common theme, albeit traditionally it is often perceived through the lens of judicial experience. In support of this contention, read Justice Moldaver’s approach to many criminal law issues in which he applies the “common-sense” paradigm, such as in the 2012 Walle decision or the 2015 Tatton case. I have written further on these decisions here and here. Or, if your bent is more to the civil side, read the 2012 Supreme Court of Canada’s decision in Clements v. Clements where the “but for” test for causation is applied in a “robust common sense fashion” by the majority. However, it is in the consideration of the community sense of how legal constructions are perceived, which seems to be now recognized as a legitimate reference point in judicial interpretation. A previous posting I wrote on this issue considering the SCC case of Anthony-Cook discusses this very point.

Another evidential concept requiring meta-reflection involves the first matter of consideration in the course: what is evidence in the broadest sense, outside of the legal premise. This question leads one to realize that evidence is not just an old shoe or a scrap of paper starting with the words “IOU.” Evidence is about relationships. There are no absolutes in evidence nor are there inherent qualities of an item which makes something, anything, a piece of admissible evidence. These things can only be viewed in relation to the “other.” The shoe is evidence only as it relates to the expert witness who describes the tread as similar to the tread found at the scene of the crime. The scrap of paper becomes evidence of an intention or a promise to pay in a civil action. The above describes just one sort of relationship evidence engenders. There are many more, replete with meaning both inside and outside of the courtroom.

One such outside connection is based on the overarching purpose of evidence as it relates to the truth-seeking function of the trial process. This is a cornerstone of our adversarial system and why we, almost smugly, suggest our form of justice is superior to the investigatory form found in continental Europe. Bringing differing facts to court permits the trier of fact to get at the truth of the matter bringing to light the real events. But what is “truth”? Is it an absolute or is it merely a chimera of what was and is, therefore unattainable? As the historian Carl Becker, a strong proponent of historical relativism, suggested in his provocative piece, “Everyman His Own Historian” published in 1932, the present recollection of the past is really a creation of our own history. Essentially, he argues, as we describe past events we imbed created memories “as may be necessary to orient us in our little world of endeavor.” Are we then constructing a false sense of comfort and security when we suggest our evidentiary rules advance the “truth-seeking” function of our justice system? These are the kind of questions to be asked when faced with the law of evidence.

Another example will make my final point on the expanding properties of thinking about evidence. After discussing the basic rule of admissibility in the second class of the course, we discussed the general exclusionary discretion which permits the trial judge to exclude admissible evidence if the prejudicial effect of the evidence outweighs the probative value. The obvious first question arising from this exception to the basic rule of admissibility involves the meaning of “discretion.” What does it mean, in the legal context, to exercise discretion and what are the repercussions of exercising or not exercising such power? Notice, I used the word “power” to describe the exercise of discretion. Notice, I mentioned that using discretion creates an outcome, of which some will cheer and others will decry. Discretion as a power, as the excellent casebook used in the course, Evidence: Principles and Problems edited by Deslisle, Stuart, Tanovich and Dufraimont suggests, can also be revered or jeered. As pointed out in the readings (pages 176-178), discretion can be a tool of the authoritarian state as every tyrant imposes his will through the exercise of discretion. Conversely, discretion can be the mark of the most tolerant and accepting society as it considers an individual as a concept worthy of respect and personhood even in that individual’s darkest moments. Discretion therefore can be the face of compassion or the mask of fear and terror. In the case of exclusion, discretion is a delicate balancing act in which the rule of law acts as the tightrope and the trial judge as the safety net. But, whether this in fact takes place provides us with more questions to consider.

It is true that teaching about evidence can amount to naval gazing with that inward eye, which can leave us in a state of doubt about almost everything. However, this constant drive to re-examine and re-assess our traditional rules and principles is what, in my view, make our rule of law admirable and meaningful. In this light, perhaps talking about evidence in a law classroom is one of the most “relevant and material” journey in a law career.

 

What is Advocacy?

December is a time for reflection. Law classes are over and marking begins in earnest. It also a time of anticipation as I ready myself for the University of Calgary, Faculty of Law Advocacy “block” weeks starting the first week in January. This is a compulsory program for the 3Ls, which originally was taught over the course of an intensive week to introduce students to fundamental trial skills. Two years ago, I was approached by Alice Woolley, the then Associate Dean, to take on the program as part of the faculty’s curriculum renewal involving the integration of experiential learning and performance-based studies into the regular law school offerings. The advocacy program was already just that - hands on and practice orientated - but it needed something else to make it unique and to make it the capstone course for the new curriculum.

To do this, we placed those fundamental skills in the context of a real trial scenario. In the past, at the end of the block week, the students would present their case before a “trial judge.” The focus then was not on the trial itself but on the presentation of the trial skills. After the course revision, the trial became more than the vessel for the skills, it became the culmination of those skills. Instead of the students performing in court, they interacted with the case in a meaningful way. They learned to appreciate the effort required to take on a complex file for a client. They began to recognize that being a lawyer does not entail simply getting up on your feet and performing. Rather, the students understood that being an effective lawyer involved connecting the fundamental skills with legal knowledge, common sense and ethical obligations of the profession. They realized that the skills themselves are but a piece of the trial puzzle.

I like to think the advocacy course is not about advocacy skills but is about being a skilled advocate. This concept is best explained by Justices Cory, Iacobucci, and Bastarache in R v Rose. The issue in the case involved the timing of a jury address in a criminal case. Pursuant to s. 651 of the Criminal Code, the defence, if they chose to lead evidence, would be required to address the jury first. In the case of Rose, the Crown, who addressed the jury last, impugned the accused’s credibility leaving the defence unable to respond to the allegation. On Rose’s appeal against conviction for second degree murder, the defence argued the jury address requirement under s. 651 infringed section 7 as it denied the accused’s right to make full answer and defence.  The SCC was split 5 to 4 on the decision with Cory, Iacobucci, Bastarache JJ writing the slim majority decision (although Gonthier J concurred with them, Madame Justice L’Heureux-Dube wrote her own concurring judgment) made the following general comments on advocacy in paragraph 108:

“Skilful advocacy involves taking the information acquired as a result of the trial ‑‑ the evidence, the other party’s theory of the case, and various other, intangible factors ‑‑ and weaving this information together with law, logic, and rhetoric into a persuasive argument.”

The trio acknowledged the role of persuasive advocacy in a jury trial, but in their view, addressing the jury last would not give the accused a persuasive advantage.

Although, it is the sentiment of the court in this above quoted sentence, which rings true to me and frames my approach to the advocacy course, I would be remiss if I didn’t refer to the dissent decision in Rose authored by Justice Binnie on behalf of Lamer CJC, McLachlin J and Major J. The dissent also refers to the “skillful advocate,” but in their view, skillful persuasion can mean the difference between guilt and innocence. Justice Binnie explains this position in paragraphs 18 and 19:

18 While it would be comforting to think that in a criminal trial facts speak for themselves, the reality is that “facts” emerge from evidence that is given shape by sometimes skilful advocacy into a coherent and compelling prosecution. The successful prosecutor downplays or disclaims the craftsmanship involved in shaping the story.  Such modesty should be treated with scepticism. The rules of “prosecutorial” advocacy have not changed much since Shakespeare put a “just the facts” speech in the mouth of Mark Antony:

 

For I have neither wit, nor words, nor worth,

Action, nor utterance, nor the power of speech

To stir men’s blood; I only speak right on.

I tell you that which you yourselves do know,

Show you sweet Cæsar’s wounds, poor poor dumb mouths,

And bid them speak for me.

 

Julius Cæsar, Act III, Scene ii.

19 While few counsel would claim Shakespearean powers of persuasion, the fact remains that in an age burdened with “spin doctors” it should be unnecessary to belabour the point that the same underlying facts can be used to create very different impressions depending on the advocacy skills of counsel.  In the realities of a courtroom it is often as vital for a party to address the “spin” as it is to address the underlying “fact”.  As was pointed out by the late Justice John Sopinka, in “The Many Faces of Advocacy”, in [1990] Advocates’ Soc. J., 3, at p. 7:

Notwithstanding that your witnesses may have been reticent and forgetful, and your cross-examinations less than scintillating, the case can still be won in final argument.

Certainly, there is a difference of opinion in the power of persuasion. Yet, I believe both the majority and the dissent are right about the importance of a skillful advocate at trial.

The quote from Shakespeare (as an aside read my previous posting on the use of verse in court decisions – Poetic Justice) leads me even further back in time to find support for the skillful advocate. Socrates, famous for his unapologetic jury address and his wit, employs persuasion in both senses as described in the Rose decision, albeit ultimately to no avail. The ancient Greeks and Romans were of course the masters of rhetoric. Although some may question their form over content approach, it is useful to recall Quintilian, the Roman rhetorician, offering advice to the new orator. In book 3.5 of the Orators Education, Quintilian suggests there are three aims of the orator: to instruct (docet), to move (moveat) and to delight (delectrat).  Cicero, who is Ancient Rome’s best known orator, left many examples of his skillful advocacy in his writings on oratory. Although his advice, to the modern reader may appear at times contrived and overly formalistic, his emphasis on invention, preparation, and strategy is still relevant today. Hortensia, also an admired Roman orator, further enhanced the ancient art of advocacy by imbuing it with a sense of social justice.  

Yet, there is no need to go so far back in time to find examples of great advocacy: Queen Elizabeth I and her rousing Tilbury speech, the deliberate yet inspirational speeches of Abraham Lincoln, Clarence Darrow’s home spun ingenuity, the fictional flare of Atticus Finch, the legendary appellate lawyering of J.J. Robinette, the written advocacy of Madame Justice Wilson, the consummate advocate G. Arthur Martin, and of course, the courtroom “pugilist” Eddie Greenspan. These are just a few of those skillful advocates who can inspire us to think beyond what is possible and be humbled by the power of persuasion.

What is advocacy? It is a mixture of knowledge, preparation, and persuasion. It requires a clarity of thought and a need to have the courage of your convictions. It requires vision, professionalism and passion. This is what I hope our new law school graduates will achieve in January 2017.

 

 

 

 

 

Episode 48 of the Ideablawg Podcasts on the Criminal Code of Canada: Inciting Mutiny Under Section 53

Mutiny is a familiar subject. It is familiar in a narrative sense: take Mutiny on the Bounty for instance and the well-known story of an uprising against the cruel authority of Captain Bligh. Yet the story is not fictitious. Pitcairn Islands which harboured First Officer Fletcher Christian and the “mutinous” soldiers of the Bounty, is still populated by the descendants of the mutineers and remains a remnant of British colonialism. In that story, we tend to sympathize with the mutinous survivors who are depicted as justified in their actions. The story and the sympathies find repetition in the classic 1950s Henry Fonda/James Cagney movie, Mister Roberts.  Again, the concept of struggling against unjust authority appears to be the theme. Yet, the actual Criminal Code offence of mutiny does not contain these built-in sympathies. In fact, although we rarely consider mutiny as a modern circumstance, it is a serious offence in our Criminal Code. Today, in the 48th episode of the Ideablawg podcasts on the Criminal Code, we will explore the offence of inciting mutiny.

 

Mutiny or inciting to mutiny as the offence is framed in section 53 is an English common law offence found in our first 1892 Criminal Code. It is one of the prohibited acts against the public order along with other offences such as alarming the Queen under s. 49. It is an offence whose purpose is to sanction treasonous or mutinous actions involving seduction or inciting of Canadian military personnel to act against the interests of the state. It reads as follows:

 

 53 Every one who

 

         (a) attempts, for a traitorous or mutinous purpose, to seduce a member of the Canadian Forces from his duty and allegiance to Her Majesty, or

         (b) attempts to incite or to induce a member of the Canadian Forces to commit a traitorous or mutinous act,

 

is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

 

Originally, until 1952-53 Code amendments, this offence was punishable by life imprisonment and therefore considered as serious as treason and murder. In fact, the offence remains a s. 469 offence, and, therefore, must be tried in Superior Court.

 

It should be noted that this is an offence of attempting to seduce, incite or induce as opposed to the actual completion of the contemplated action.  The complete offences would fulfill the elements of the full offence of treason under s. 46 or even sedition under s. 63. Indeed, the original wording of the offence, as found in the 1892 Code, requires the offender to “endeavor” to seduce, incite or “stir up.” According to the Oxford Dictionary online, “endeavor” means “an attempt to achieve a goal.” The use of the term “endeavor” is consistent with the ulterior purpose required for the mens rea element of this section, which is to effect the prohibited conduct for “a traitorous or mutinous purpose.” Applying the 1995 SCC Hibbert case to the use of the word “purpose,” the Crown would need to prove beyond a reasonable doubt that the accused acted with a high level of subjective mens rea.

 

Returning to the actus reus components of the section, the term “mutinous” or “mutiny” is not defined in the Criminal Code. “Mutiny” is defined under the National Defence Act as “collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty’s Forces or in any forces cooperating therewith.” This definition reiterates the fact this crime is not unlike a counselling or conspiracy offence under the Code. It also requires “collective” behaviour involving more than one individual. The term “insubordination” has a peculiar meaning as reflected by the sections 83 to 87 of the National Defence Act. These insubordination offences cover a broad range of behaviour such as using threatening or insulting language to a superior officer under s. 85 or “strikes or uses violence” toward a superior officer. Desertion, however, is not considered an offence of “insubordination” but a separate infraction as is sedition.

 

In the Criminal Code, the term “insubordination” is used in “offences in relation to military forces” under s. 62 of the Code. We will discuss this offence later in this journey through the Criminal Code but in reading s. 62, which makes it an offence to counsel insubordination or mutiny, one wonders what the differences are between the two offences. Section 62 was not in the 1892 Code but was added in 1951 Code amendments. Certainly, section 53 is the broader offence and, as mentioned earlier, punishes an attempt to incite mutiny or treason. However, section 62 punishes the full or complete offence of mutiny, among other prohibited acts such as insubordination, yet the maximum punishment is by a term of imprisonment not exceeding five years. Clearly, section 62, the full offence, is considered a less serious offence than its counterpart s. 53, which punishes an attempt. Considering this, the assumption must be that the s. 53 offence is meant to capture more serious behaviour than just “collective insubordination.” However, in a 2004 court martial decision, Blouin P.S. (Corporal), R. v., 2004 CM 25 (CanLII), the presiding military judge in sentencing Corporal Blouin for a form of insubordination under s. 84 of the National Defence Act involving an assault of a superior officer, described the act as “attacking not merely the individual but the cornerstone of the military institution he or she represents: the chain of command.” The judge then characterized the offence of insubordination as “objectively serious as the offence of treason or mutiny.”

 

Another aspect of the actus reus is the requirement the accused “seduce” under 53(a) or “incite or induce” under 53(b) a member of the Canadian Forces. The concept of seduction is an old one as found in offences of seduction in the 1892 Code, which have now been repealed, such as the offence of seduction of females who are passengers on vessels, or the offence of seduction of girls under sixteen years. Presently, s. 53 is the only section in the Criminal Code referring to seduction. What does “seduce” then mean? The word “seduction” arises from the Latin word “seduco” meaning to draw aside or lead astray. Of course, there was a decidedly gender bias to those original seduction offences and the case law on the interpretation of the word “seduction” reflects that. In the 1927 Saskatchewan Queen’s Bench decision, R v Schemmer, seduction was deemed to be a word connoting a loss of a woman’s virtue imbuing the offence with a moralistic condemnation. By analogy therefore “seduce” as used in s. 53 has an aspect of a “fall from grace” as epitomized by Darth Vader in Star Wars who attempts to “seduce” his son, Luke Skywalker, to the dark side of the force.

 

The Court in the Schemmer decision suggests seduction requires an element of enticement and inducement, which happen to be the prohibited act requirements for the mutiny offence under s. 53(b). “Incite” as defined in the Merriam Webster online dictionary is to “urge on” or “stir up”. As previously mentioned the phrase “stir up” was included in the original 1892 offence. “Induce” is to “move by persuasion or influence” and is related to “seduce” but in the online dictionary “seduce” is to “lead astray by persuasion” or by “false promises,” giving seduction a fraudulent tone. A further definition of “seduce” includes “to persuade to disobedience or disloyalty” which seems to be the conduct underlying s. 53.

 

It should be noted that Canadian Forces is defined under section 2 of the Code as the armed forces “of Her Majesty raised by Canada.”

 

A final aspect of the section 53(a) offence is the requirement that the prohibited act involves an attempt to seduce a member from his or her “duty and allegiance to Her Majesty.” This requires proof that the seduction is directly linked to the member’s duty and allegiance to the sovereign. 

 

Section 53 is presently rarely used and appears to have a “doppelganger” section in the form of section 62. This section should certainly be considered in the revisions of the Code as a section no longer used or needed in our criminal law.

 

 

 

 

R v Anthony-Cook and the Community’s Sense of Justice

In R v Anthony-Cook (2016 SCC 43 (CanLII)), Justice Moldaver, on behalf of the full court, clarifies the test to be applied by a sentencing judge when departing from a joint submission on sentence and then gives clear step-by-step instructions to judges on how to properly apply the appropriate test. The joint sentence recommendation in this case arose out of a tragic set of circumstances in which the 28-year-old offender, who suffered from addiction and mental health issues, assaulted a fellow attendee at a local addiction and counselling organization. The assault resulted in death and ultimately, Mr. Anthony-Cook, after his lawyer negotiated a plea resolution with the Crown prosecutor, including an agreement on sentence, entered a plea of guilty to the charge of manslaughter. At the sentencing hearing, the defence and Crown prosecutor offered the joint submission on sentence, recommending the offender receive a further 18-months incarceration (he had already been in custody for a total of 11 months) without out any period of probation.

The sentencing judge declined to accede to the joint recommendation as the proposed sentence did “not give adequate weight to the principles of denunciation, deterrence, and protection of the public” (R v Anthony-Cook, 2014 BCSC 1503 (CanLII), Ehrcke J at para 68) and instead imposed a sentence of two years less a day to be followed by 3 years of probation. (at paras 54 to 63) In the sentencing judge’s view, the sentence proposed was unfit and therefore he was not bound by the joint submission. As a result, he departed “to some extent” from the negotiated sentence recommendation. (at para 67) The British Columbia Court of Appeal agreed with the sentencing judge’s assessment that the proposed sentence was unfit and not in the public interest and found no error in his sentencing departure. The matter was further appealed to the Supreme Court of Canada (hereinafter SCC) to clarify the test to be used by a sentencing judge in departing from a joint submission on sentence. Appellate courts across Canada were not ad idem on the issue, using four different tests for departure: the fitness test, the demonstrably unfit test, the public interest test, and a test which viewed the issues of fitness and public interest as the same.  The Supreme Court of Canada was asked to clarify which test was the controlling one with the court unanimously approving of the public interest test. As the sentencing judge erred by applying the incorrect test, Anthony-Cook’s negotiated sentence was imposed by the court.

As we have come to expect from Justice Moldaver, it is a plain language decision giving practical guidance to the sentencing judge in the context of the realities of our criminal justice system. This system is realistically depicted in other recent Supreme Court of Canada (SCC) decisions, most notably in R v Jordan, 2016 SCC 27 (CanLII), where we are told that trial fairness, a most cherished aspect of our principles of fundamental justice, is not in fact in “mutual tension” with trial efficiency; rather they are, “in practice,” in a symbiotic or interdependent relationship. (at para 27) According to Jordan (at para 28), “timely trials further the interests of justice.” These “interests of justice” involve our “public confidence in the administration of justice” and most notably our “community’s sense of justice.” (at para 25) It is therefore within the public interest to create clear and articulable bright-lines in our justice system to promote these community values. In the Anthony-Cook decision, the SCC continue their search for clarity by delineating the line at which a sentencing judge can depart from a joint recommendation agreed to by the defence and the prosecution as determined by the “public interest test.” Yet, as illuminating as this public interest test may be and as clear as the guidance is, just what the Court means by “public interest” must be unpacked by reference to other SCC decisions and by the Court’s concept of the “community’s sense of justice.”

I purposely use the metaphor of “unpacking” for a reason. For to fully understand the public interest test in Anthony-Cook we must not only travel to those obvious decisions cited in Anthony-Cook, such as R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII) and R v Power, [1994] 1 SCR 601, 1994 CanLII 126 (SCC), but also to those decisions not mentioned by Justice Moldaver, such as Jordan, that have a clear and convincing connection. For the sake of “timeliness,” I will travel to one such notable case, R v St-Cloud, [2015] 2 SCR 328, 2015 SCC 27 (CanLII), another unanimous decision rendered by Justice Wagner, on the test to be applied in the oft troublesome yet revamped tertiary ground for bail release under s. 515(10)(c) of the Criminal Code. (For a further discussion of the St-Cloud decision, read my post on ideablawg.)

We find in St-Cloud a fulsome discussion, a “deep dive” so to speak, into the meaning of the term “public.” This case sheds the brightest light on the SCC’s emphasis on the public as the litmus test for concerns relating to the administration of justice generally and advances future SCC decisions on the trial judge’s specific role as the guardian or “gatekeeper” of a properly functioning justice system. I would argue, but leave to a future time, that the gatekeeping function of a trial judge is expanding under recent pronouncements from the SCC. This feature, in my view, is no longer confined to the traditional evidentiary gatekeeping duties but is reflected in the Court’s vision of the trial judge, in the broadest sense, as the protector and keeper of the administration of justice as informed by the public’s confidence in that system.

How much does this concept of the public impact the Anthony-Cook decision? I would argue, quite a lot. In Anthony-Cook, Justice Moldaver refers to both the phrase “public interest” and the term “confidence.” In Moldaver J’s view, “confidence” is a key indicator of the public interest. Therefore, the public interest test not only directly relates to the public’s confidence in the administration of justice but also to the offender’s confidence in that same system. This twinning of the public and the accused harkens back to Jordan’s twinning of trial fairness and court efficiency. We, in criminal law, do not traditionally align the community’s sense of justice with the offender’s need for justice. We tend to compartmentalize the two as the antithesis of one another except when directed to do so by law, such as in considering the imposition of a discharge under s. 730 of the Code, where such a sanction depends on the best interests of the accused and is not contrary to the public interest. In Anthony-Cook, we have come full circle as the sentencing judge must take into account all aspects of the term “public”.

Indeed, as recognized by the Court in Jordan and the many recent SCC decisions on sentencing, this silo approach is no longer useful or valid. Now, the “community’s sense of justice” is approached holistically in the grandest sense yet tempered by the balance and reasonableness our Canadian notion of justice is founded upon. Indeed, as discussed earlier the key descriptor of the community in Anthony-Cook and, quite frankly in most community oriented legal tests, is “reasonableness.” A “reasonably informed” and “reasonable” community participant is the embodiment of the “public interest.” Although this limiting notion is expected in order to provide the bright-line needed in criminal law, to ensure citizens fair notice of the law and to give those enforcing the law clear boundaries (see R v Levkovic, [2013] 2 SCR 204, 2013 SCC 25 (CanLII), Fish J at para 10), in a society where we value multiculturalism and diversity, this concept of “reasonableness” might not resonate and might not “in practice” fulfill the promise of the “community’s sense of justice.” No doubt, this is a matter that needs to be further “unpacked” as we continue our legal journey through the vagaries of the rule of law.

In any event, whatever inferences are needed in order to apply the public interest test, according to the SCC, it is the responsibility of our judiciary to be mindful of us, the public, and to apply our common sense, our “community’s sense of justice” in the “delicate” task of sentencing. (see Lacasse, Wagner J at paras 1 & 12, see also R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), Lamer CJ at para 91) This sense of community justice, as articulated in Anthony-Cook, will provide the guidance the sentencing judge needs in assessing whether or not a departure from a joint recommendation as to sentence, which is an acceptable and desirable practice promoting the twin desires of fairness and timeliness, is just and appropriate.

Also posted on the Ablawg.ca website.

 

Episode 47: Section 52 – Sabotage or There Is More to This Than A Wooden Shoe (warning: this a long read or listen)

We are continuing our long but worthwhile journey through the Canadian Criminal Code. In this episode, we are still wading through the sections in the Code under “Part II Offences Against the Public Order.”  The section we will discuss today is one of the many “prohibited acts” listed under this heading, along with Alarming Her Majesty (s. 49) and Intimidating Parliament (s. 51). So far, we have learned that these offences come to us from the English common law and have essentially been in our Criminal Code since its inception in 1892. We have also realized that many of these offences have been subsumed under other, more modern, sections of the Code, particularly the terrorism and criminal organization offences.  Although these sections are occasionally referenced in a recent case or two, they remain virtually unused as “relics of the past.”

The section for today’s podcast is sabotage under section 52, which has a different history than the previous sections. The offence came into our Criminal Code later, in the 1951 amendments to the Criminal Code, under s. 509(a) as “acts prejudicial to security.” Soon thereafter, in the 1953-54 amendments to the Code, the section was re-labelled as “sabotage,” with the essence of the offence remaining unchanged. The original placement of the offence, under the mischief sections, tells us that the offence is a form of mischief involving willful damage to property but with a more serious connotation involving prohibited acts against the national interests of the state.

You may rightly ask why such an offence wouldn’t have been in our first Criminal Code? The answer connects us to the etymology of the word “sabotage.” The term “sabotage” does not actually appear in the section, it is found only in the descriptive heading. Even so, “sabotage” is a word readily identifiable: we all have a notional sense of what sabotage is and what it entails. Despite this, the etymology of the word is surprising yet familiar.

The word “sabotage,” according to the online Oxford Dictionary, comes from the French word saboter, meaning “kicks with sabots, willfully destroy.” A sabot was a wooden shoe traditionally worn by the working class – akin to the Dutch wooden clog. According to the Oxford online dictionary, the somewhat apocryphal story connecting sabot to the crime of sabotage involves the French workers, in the early 1900s who protested the advent of the Industrial Revolution and the replacement of machine for man. In these strikes and protests, the workers showed their displeasure by throwing their wooden shoes into the machinery, which “clogged” (pun alert) the inner workings of the machine. The authorities viewed these actions as “sabotage” and so, the story goes, was the birth of a new crime of mischief. Within a few years the crime would have more significance during World War I and thus become an action intersecting intimidation of the government, espionage, and treason but with an element of mischief.

However, etymologists suggest the wooden shoe story is not behind the crime. Apparently the word sabot referred to “bungling” as in doing something very badly or messily. This connects better to the early uses of the word and does tie to labour action, which also explains the exceptions to sabotage as enumerated under s. 52(3) and (4) of our Criminal Code. A great use of the term can be found in the 1907 speech given by Arturo M. Giovannitti, who was an Italian-American social activist and labour union leader. He decried the concept of “sabotage” as murder instead describing it as “giving back to the bosses what they give to us. Sabotage consists in going slow with the process of production when the bosses go slow with the same process in regard to wages.” As an aside, Giovannitti and two other labour leaders were charged in 1912 with “constructive murder” on the basis of inciting a riot which led to a death of a striker by police. All men were eventually acquitted. Giovannitti, who was a self-rep, gave a memorable jury address, an excerpt, provided by the author, Upton Sinclair, himself a social activist, can be found here.

The evolution of this crime antedates the first Code, which explains why it is not in there. However, when you look at what is in the 1892 Code it becomes clear how the crime easily found its way into our criminal law nomenclature. Other mischief sections in the 1892 Code, such as s. 489, prohibit mischief on railways and injuries to the electric telegraphs (s. 492), all of these important infrastructure features of the new state. On that basis, the addition of sabotage seems a rational addition. However, as mentioned earlier due to the labour connection, the final definition of sabotage protects the right to strike and peaceably protest.

Now, let’s look at the actual words found in the section. The first part of section 52, setting out the offence, reads as follows:

(1)  Every one who does a prohibited act for a purpose prejudicial to

                      (a) the safety, security or defence of Canada, or

            (b) the safety or security of the naval, army or air forces of any state        other than Canada that are lawfully present in Canada,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

The mens rea or mental element requirement can be found in the phrase “for a purpose.” This offence is an example where the prohibited act of the offence is committed for a specific purpose ulterior to that prohibited act or acts. (See para 92 of R v Khawaja, 2010 ONCA 862 (CanLII)). The ulterior purpose is outlined in subsection (1) as “prejudicial” to the safety, security or defence of Canada or safety and security of any armed forces of “any state” lawfully in Canada. This would require the Crown to prove a high level of mens rea and recklessness would not be enough. Again, as mentioned in previous podcasts, the new terrorism offences would cover these prohibited acts and in a much broader manner both in terms of actus reus and mens rea.

In terms of the actus reus of the offence the Crown would not only need to prove the prohibited act as defined under subsection (2) but also the “prejudicial” purpose as enumerated in 52(1)(a) and (b). Turning yet again to the Oxford dictionary the term “prejudicial” may be fulfilled by proving the purpose was to harm or place at risk of harm. If proceeding under (b), the Crown would also need to prove the foreign armed forces was in Canada “lawfully” or under the law. 

The prohibited act is specifically defined in the next subsection (2) as follows:

...an act or omission that

 

              (a) impairs the efficiency or impedes the working of any vessel, vehicle, aircraft, machinery, apparatus or other thing; or

        (b) causes property, by whomever it may be owned, to be lost, damaged or destroyed.

Here the prohibited acts are fairly broad only requiring an impairment (which could include a mere weakening of the productivity) or a hindering (which could include a mere delay) of the thing so impaired or impeded. In terms of the object of the prohibited acts, traditional rules of statutory interpretation such as ejusdem generis and nocitur a sociis, can be applied to argue that the general term “or other thing” must be interpreted in light of the preceding list, here a list of man-made items requiring generated power. Just how broad the prohibited act is can be seen by the definition under (b). Although the Crown would have to prove causation, the consequence can be as simple as an item lost. Further, there is no specific ownership of the item required. This broad prohibited act is thankfully tempered by that more specific mens rea requirement.

There is a militaristic tone to this offence as it pertains to our armed forces and even foreign ones. There are less serious mischief-related offences found under the National Defence Act such as under s. 116. For example in Reid S.A. (Petty Officer 2nd Class) and Sinclair J.E. (Petty Officer 2nd Class), R. v., 2009 CM 1004 (CanLII), the offenders originally faced charges as laid by the Canadian Forces National Investigation Services of sabotage, conspiracy and other mischief-related offences. The two officers impeded access to a military database by making it more difficult to access the information by removing a computer icon. Upon review, the charges of sabotage and conspiracy were dropped with the Director of Military Prosecutions deciding not to prefer those charges but to instead pursue the less serious National Defence Act offences. These “mitigating” facts were relied on by the defence in submissions on disposition. The defence requested a lesser sentence as the more serious charges first laid garnered much media attention and severe repercussions such as a loss of security clearance, computer access and access to classified information. In the end the Court Martial Judge found the offences were still significantly serious to attract a heavy fine and a reduction in rank.

There are also “saving” subsections, which provides an exception to the prohibited acts as outlined under (2). As mentioned earlier, these exceptions under (3) pertain to acts involving labour protests. They are as follows:

(3) No person does a prohibited act within the meaning of this section by reason only that

            (a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;

            (b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or

            (c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.

The final exception to the enumerated prohibited acts under (2) come under (4) and ensure that the section could not be used as it relates to someone, for example, who canvasses door-to-door. It reads as follows:

(4) No person does a prohibited act within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

In the recent case of R v Wagner (2015 ONCJ 66), the court made an analogous reference to s. 52. In that case, the accused person, Mary Wagner, was charged with breach of probation and mischief by interfering with private property by attending a Toronto abortion clinic.  She was a continual attendee at these clinics in a concentrated effort to “persuade” women not to have abortions. On this occasion, she disconcertedly approached a woman in the clinic, while holding a rose in her hand, and softly repeatedly urged the woman to change her mind. When asked to leave she refused and eventually was forcibly removed by the police. One of the arguments advanced on behalf of Ms. Wagner raised the issue of whether or not her efforts to dissuade were acts of protection or defence of the fetuses pursuant to the defence of the person section in the Code. In his reasons for conviction, Justice O’Donnell dismissed this submission but referred to s. 52 sabotage as an offence which exempts behaviour, pursuant to s. 52(4), similar to the type of behaviour engaged in by Ms. Wagner. Certainly attendance at a place for the sole purpose of communicating would also not be contrary to s. 430(1)(c) mischief. However, where that communication interferes with the lawful use of property, then the mischief section would be applicable.

Needless to say there are few cases of sabotage under this section. Although it has been in the Criminal Code for decades, it is a relatively new offence, which was not part of our first Criminal Code. However, the underlying rationale for the offence, to protect national security, is certainly not a new concept. Whether this offence will continue in use considering the push to modernize offences remains to be seen.

 

 

Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman

This blog also appears on the ABlawg.ca website:

My past two blog posts have a thematic connection and this post is no exception. I have modernity on the mind and so, apparently, do the courts. You may recall that theme in my discussion of the DLW decision (2016 SCC 22 (CanLII)) in which the Supreme Court of Canada, in the name of the “modern,” or the “modern approach” to be exact, entered into the time-honoured process of statutory interpretation only to come to the decision that the 2016 concept of bestiality under s 160 of the Criminal Code was no different than the common law concept of bestiality as subsumed into our codified criminal law in 1892. Justice Abella, hoping for a more modern approach, disagreed. Then, in my last blog post, I discussed the “smart” use of technological evidence to weave a persuasive narrative at trial. In the Didechko case (2016 ABQB 376 (CanLII)), the Crown relied, to great effect, on evidence emanating from the technological traces left by the accused to construct a case based on circumstantial evidence. Didechko serves as an exemplar of a thoroughly modern approach to another centuries-old process. Now, in this post, I will make another case for the modern as the Supreme Court of Canada in Villaroman (2016 SCC 33 (CanLII)) clarifies a very old rule on circumstantial evidence, one predating our Criminal Code, found in the English 1838 Hodge’s Case (168 ER 1136).

First, a few words on circumstantial evidence. We are all probably aware, contextually, of the difference between circumstantial and direct evidence. The most popular explanation in jury instructions and the best understood example involves rain and goes as follows: Imagine we wake up in the morning and when we peek out of the window to look at the weather for the day (this example is obviously pre smart phones) we notice the road, the sidewalk, and the ground is wet and rain is falling from the sky. We accept, therefore, that it is raining, and if we have been in Calgary all summer, we might even say “it is raining again.” A similar example was used in the Villaroman charge to the jury (at para 23). This is an example of direct evidence which, according to Watt’s Manual of Evidence 2016, page 49 at para 8.0 “is evidence which, if believed, resolves a matter in issue…the only inference involved in direct evidence is that the testimony is true.”

Circumstantial evidence is trickier and involves a more complex thought process. It differs from direct evidence as its probative value is found in the inferences to be drawn from the facts. Returning to our example, if we look out of our window and we see the road is wet but the sky is clear, we cannot directly aver to what the weather was like before we woke. We can, however, draw a “rational” or “reasonable” inference from the state of wetness and say “it was raining sometime before” but we did not observe that happen. We are not “direct” witnesses to this assumed event. In fact, we could be very wrong about our inference. For instance, if the road is wet but the sidewalk and ground is not, then we cannot safely assume it rained. A more “rational” or “reasonable” explanation may be that the City of Calgary street cleaners came by and washed the road. According to Watt’s Manual of Evidence 2016, page 50 at para 9.01, “it is critical to distinguish between inference and speculation.” An inference is “logical” (R v DD, [2000] 2 SCR 275, 2000 SCC 43 (CanLII) at para 18), “justifiable” (R v Charemski, [1998] 1 SCR 679, 1998 CanLII 819 (SCC) at para 33), “common sense” (Justice Moldaver in R v Walle, [2012] 2 SCR 438, 2012 SCC 41 (CanLII) at para 63), “rational” (R v Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII) at para 34) or, as preferred by Justice Cromwell writing for the Villaroman court, “reasonable” (at para 30). Conversely, speculation can lead to erroneous inferences. Speculation is tenuous as opposed to probative. Mere speculation strikes at the heart of the criminal justice system as it can ultimately lead to miscarriages of justice. It can cause the trier of fact to make an improper “leap” unsupported by the evidence.

To be cognizant of these improper “leaps” as a trier of fact is vitally important. As seen in Didechko, circumstantial evidence may be the only evidence of guilt or innocence. It is therefore essential, as a defence lawyer, to be able to argue persuasively that the circumstantial evidence does not amount to proof beyond a reasonable doubt as it is not reasonably sufficient to infer guilt. It is this argument, that the circumstantial evidence is “equally consistent with the innocence as with the guilt of the accused” (Fraser et al. v The King, [1936] SCR 296, 1936 CanLII 25 (SCC) at page 301), which is at issue in Villaroman but, as we will see, with a modern twist.

Mr. Villaroman was charged with various pornography related offences as a result of images found on his laptop computer, including a charge of possession of child pornography pursuant to s. 163.1(4) of the Criminal Code. As with most other possession offences, the possession element of the offence is where the circumstantial evidence was key to the prosecution’s case. The elements of possession are a curious mixture of statutory requirements and judicial interpretation, requiring proof of knowledge, consent, and control. Although section 4(3) of the Criminal Code clearly identifies knowledge and consent as elements of possession, the additional element of control is not found in the section. Rather, control is a judge-made requirement based on case authorities.

Thus in the Villaroman scenario, the prosecutor would have to prove Mr. Villaroman was aware of the child pornography on his computer, that he consented to the pornography being there, and that he had a measure of control over those images. The mere fact the images are found on his computer is not enough evidence of those essential elements. The Crown would need to figuratively, if not literally, place Mr. Villaroman’s fingers on the computer keys, at the time the prohibited images were knowingly captured by his computer, in order to prove possession. To do so, the Crown must rely on circumstantial evidence. In response, the defence must persuade the trier of fact that there are other reasonable or rational inferences which do not lead to guilt. As an aside, in Villaroman, Justice Cromwell equated “reasonable” with “rational” but, as mentioned earlier in this post, favoured the descriptor “reasonable” as the correct legal nomenclature (at paras 32 to 34).

The twist in Villaroman involves the source of those reasonable inferences or alternatives which lead to innocence. Traditionally, case authorities required that the inferences arise from the facts. In other words, there must be an evidential foundation for the defence’s position. However, by 2009 in the Khela decision ([2009] 1 SCR 104, 2009 SCC 4 (CanLII) at para 58), the Court found such a requirement effectively reverses the burden of proof by necessitating the defence “prove” facts in support of inferring innocence. Justice Cromwell in Villaroman makes it perfectly clear that this modern take does not invite speculation as long as it is within the range of reasonable inferences (at paras 35 to 38).  He gives two examples: one old and one new. In the 1936 case of Martin v. Osborne, [1936] HCA 23; 55 CLR 367, the High Court of Australia considered the admissibility of similar fact evidence as circumstantial evidence that the respondent, who was driving a commercial vehicle, was transporting people for pay contrary to legislation. In allowing the appeal against acquittal, Justice Dixon noted at page 375 (see para 40 of Villaroman) that “in the inculpation of the accused person the evidentiary circumstances must bear no other reasonable explanation” and further found at page 378 that the innocent inference was simply “too improbable.”

In the newer example from 2014, Justice Cromwell cited the Alberta Court of Appeal decision in Dipnarine (2014 ABCA 328 (CanLII), 584 AR 138) in which the court explained that circumstantial evidence need not “totally exclude other conceivable inferences” (at para 22) and that “alternative inferences must be reasonable and rational, not just possible” (at para 24). However, as the court further explains, “the circumstantial evidence analysis” (at para 25) is not a separate venture but is, in essence, the application of proof beyond a reasonable doubt. Ultimately, the trier of fact must “decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt” (at para 22). These reasonable alternate inferences can arise from either the presence of evidence or an absence of evidence. For instance, taking possession as an example, if there is no evidence of one of the necessary elements of knowledge, consent or control, the Crown has not proven the case and the accused person must be acquitted. This re-affirmation of the power of none is a step in the modern direction.

So what of Mr. Villaroman? At trial, the trial judge convicted Mr. Villaroman on the basis of the circumstantial evidence while the Alberta Court of Appeal set aside the conviction and entered an acquittal for the very same reason. The Supreme Court of Canada found the trial judge’s analysis was reasonable while the Alberta Court of Appeal’s position relied too heavily on “hypothetical alternative theories” (at para 67) which were “purely speculative” (at para 70). In other words, the appellate court “retried the case” (at para 69) by making that impermissible “leap” from the “reasonable” to the “improbable.”

The final nod to modernity in Villaroman is Justice Cromwell’s consideration of the form of the jury instruction on circumstantial evidence (at paras 17 to 24). In this discussion, Cromwell J sits firmly in today as he quotes approvingly from a passage written by Charron JA, as she then was, writing for the Ontario Court of Appeal in the Tombran decision (2000 CanLII 2688). There, in paragraph 29, she rejected the traditional “formulaic approach” to jury instructions in favour of “the modern approach to the problem of circumstantial evidence” which discusses all of the evidence, including circumstantial, within “the general principles of reasonable doubt.”

In modern terms this case suggests the jury need not be instructed in a finely constructed manner. Indeed, the Court, in a very modern turn, reiterates a theme they have been pursuing for years – that there are no “magic incantations” (WDS, [1994] 3 SCR 521, 1994 CanLII 76 (SCC) at page 533) or “foolish wand-waving or silly incantations” (a shout out to Professor Snape in Harry Potter) needed to “appeal-proof” jury instructions. The charge to the jury must remain nimble, tailored to each individual case and created by the judicial gatekeeper who is expected to weave a legal narrative for the trier of fact. Should there be no jury, then it is incumbent on the judge to be mindful in their approach to the evidence. To be modern, therefore, requires mental acuity and agility not pondering recitations of old rules but fresh iterations, perhaps on an old theme, but yet thoroughly modern.

 

Episode 46 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 51 – Intimidating Parliament or Legislature

In this episode, we will continue to acquaint ourselves with Part II – Offences Against Public Order – by considering s. 51 Intimidating Parliament or Legislature. It is a section within the theme of the previous sections, starting from section 46, which prohibit treasonable activities. It reads as follows:

Every one who does an act of violence in order to intimidate Parliament or the legislature of a province is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

The section also intersects with other statutes. In the federal Citizenship Act, a conviction under s. 51 disentitles a person from Canadian citizenship as does a conviction for a terrorism offence under the Code as well as a conviction under s. 47 (“high treason” as discussed in episode 43 of this podcast series) and s. 52, sabotage, the next section in this podcast series.  Oddly enough, a conviction under s. 52, among numerous other Code sections, may act as a barrier to applying for various kinds of bingo licences in Quebec as per sections 36(3), 43(2), 45, 47(2), 49(2), and 53(1) of the Bingo Rules, CQLR c L-6, r 5.

The section does not define the phrase “act of violence” nor the term “intimidate.” “Violence” is not defined anywhere in the Criminal Code and has been subject to judicial interpretation. The term is difficult to define as it is an oft-used word with an unspoken and assumed societal meaning. This meaning is imbued with societal mores and values and is therefore not strictly legal. In other words, in the everyday context, the term does not need interpretation or elucidation. Due to this ephemeral nature of the term, there is no ordinary and grammatical meaning for purposes of statutory interpretation. Re-enforcing this problem is differing dictionary meanings. As a result, the definition of violence could be viewed as harm-based, whereby the focus is on the acts that a person uses in an attempt to cause or actually cause or threaten harm. Or it could be force-based, which focuses on the physical nature of the acts and not the effects.

This discussion was at the core of the 2005 Supreme Court of Canada case, R v CD; R v CDK. There, the court considered the meaning of “violence” as used in the s. 39(1)(a) of the Youth Criminal Justice Act, which permits a custodial disposition where the youth is convicted of a “violent” offence. The majority preferred a harm-based approach that would produce a more restrictive definition of violence consistent with the objectives of the young offender legislation to only incarcerate as the last resort. Later in the 2014 Steele decision, an unanimous panel of the Supreme Court of Canada approved of the harm-based approach in interpreting violence, in the context of the “serious personal injury requirement” for a long-term offender determination. In the Court’s view, this approach was consistent with the context of the term as used in the Criminal Code, particularly offences such as threaten death under s. 264.1, where the act of threatening death or bodily harm was in and of itself violent. (See R. v. McRae). This discussion can therefore lead us to define “act of violence” under s. 51 as harm-based as well and therefore would include threats of violence.

Interestingly, there may Charter implications to this section as the “acts of violence” could be considered an expression under s. 2(b) of the Charter, particularly where the act is a threat of violence by words or writing. However, as discussed in the Supreme Court of Canada Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.) decision, s. 2(b) would likely not protect expressions of harm or violence. Of course, the justiciability of this argument may be based on the factual underpinnings of the charge.

The term “intimidate,” although not defined in the Code, is also subject to much judicial consideration. Unlike the term “violence,” “intimidation” does have a fairly consistent dictionary definition. Additionally, the term is used in other offences in the Code, most notably “intimidation,” where to intimidate is itself an offence under s. 423. The online Oxford Dictionaries define “intimidate” as “frighten or overawe (someone), especially in order to make them do what one wants.” Comparably, the Merriam-Webster Dictionary defines it as “to make someone afraid... especially to compel or deter by or as if by threats.” The British Columbia Supreme Court in the 2002 Little case used the Oxford Dictionary definition in assessing the voluntariness of an accused person’s confession. The 2013 Saskatchewan Provincial Court decision of Weinmeyer has an excellent overview of the authoritative definitions of the term. The court in that case was considering a charge of uttering threats under s. 264.1 of the Code. Although “intimidate” is not a word used in the section, courts have looked at intimidation as an element of the conveyed threats. After reviewing the case law on the meaning of intimidation, Agnew PCJ found at paragraph 18 that:

“the essence of intimidation is the use of action or language to overawe or frighten another, with the intention of causing that person to change their course of action against their will.  This change may be to undertake an action which they would not otherwise have done, or to refrain from doing something which they would have done in the absence of such action or language, but in either case the intimidator intends that the recipient not act in accordance with their own wishes, but rather in accordance with the intimidator’s wishes; and the intimidator employs menacing, violent or frightening acts or language to cause such change.”

This definition is also consistent with the elements of the s. 423 offence of intimidation. It should be noted that the offence of extortion, contrary to s. 346 of the Code has similar elements to intimidation and may overlap with a s. 51 charge as well.

In terms of the fault element, s. 51 requires the prohibited conduct (an act of violence) be done for a specific purpose ulterior to the violence, namely for the purpose of intimidation. This would require the Crown prosecutor to prove a high level of subjective intention.

Looking at s. 51 as a whole, it is apparent that the offence is an intersection between extortion/intimidation sections and treason/terrorism sections. Historically, the section came into our first 1892 Criminal Code under s. 70 as a conspiracy crime to intimidate a legislature. That offence read as “every one is guilty of an indictable offence and liable to fourteen years' imprisonment who confederates, combines or conspires with any person to do any act of violence in order to intimidate, or to put any force or constraint upon, any Legislative Council, Legislative Assembly or House of Assembly.” It was based upon a similarly worded offence found in article 66 of Burbidge’s Digest of Criminal Law of Canada published in 1890. As an aside, Burbidge’s Digest was the Canadian version of Sir James Fitzjames Stephen’s Digest of the Criminal Law of England. Stephen was, as mentioned previously in these podcasts, the founding father so to speak of our Code as he supported criminal law codification in the UK. George Wheelock Burbidge was a Judge of the Canadian Exchequer court, the precursor to the Federal Court of Canada. Early in his legal career Burbidge was involved in the drafting of the consolidated statutes of New Brunswick. He later became the federal deputy minister of justice and as such was instrumental in devising the consolidated statutes of Canada. Returning to s. 51, in the 1953-54 amendments to the Code, the offence was revised to the wording we have today.

Despite the longevity of this section as an offence under our laws, I could find no reported case directly involving a charge under this section. Consistent with the terrorism/treason aspect of this charge, there are recent cases, involving terrorism offences, which do consider this section. A unique use of this section occurred in the 2005 Ghany case, a bail application in the Ontario Court of Justice before Justice Durno. There the defence argued that as the terrorism charges facing their clients involved an aspect of s.51, which is an offence subject to s. 469, the bail should be heard before a Superior Court Judge. Section 469 gives Superior Court Judges exclusive jurisdiction over a list of offences for purposes of bail and trial procedure. These listed offences are deemed the most serious in our Code and pertain to murder and treason but does not refer to terrorism offences. The argument did not turn on the list of offences under s. 469 jurisdiction but rather on the conduct or substance of those named offences. This position is particularly attractive considering the creation of s. 469 authority was created well before the advent of terrorism crimes. In the end, Justice Durno declined jurisdiction and dismissed the application.

Considering current lack of use, the future of this section is questionable. This is particularly so in light of the various other offences for which a person can be charged instead of this crime, such as intimidation or terrorist activity. This is certainly a section worthy of reform and one to watch in the future.