Does the Stinert Decision Signal the End of the Preliminary Inquiry? case commentary is posted on the Ablawg website: http://ablawg.ca/2015/04/17/does-the-stinert-decision-signal-the-end-of-the-preliminary-inquiry/
Although sections 32 and 33 pertain specifically to the suppression of riots, these sections continue the various Code protections afforded to a person enforcing the law but with a twist. Section 32 provides for a justification for the use or the ordering of force by a peace officer providing the force is applied in good faith, is necessary on reasonable grounds to suppress a riot and such force is not excessive in the circumstances. So far, these sections seem familiar and comparable to previously discussed use of force sections. However, the difference is in the added language as sections 32(2) and (3) provide protection for those who obey orders to suppress a riot in both a martial law scenario (subsection 2) and a more general situation (subsection 3). Subsection 4 protects citizens in the use of force in suppressing a riot in exigent circumstances involving “serious mischief.” Finally, subsection 5, deems the question of whether the order to use force is “manifestly unlawful or not” as a question of law.
Section 32 reads as follows:
(1) Every peace officer is justified in using or in ordering the use of as much force as the peace officer believes, in good faith and on reasonable grounds
(a) is necessary to suppress a riot; and
(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.
(2) Every one who is bound by military law to obey the command of his superior officer is justified in obeying any command given by his superior officer for the suppression of a riot unless the order is manifestly unlawful.
(3) Every one is justified in obeying an order of a peace officer to use force to suppress a riot if
(a) he acts in good faith; and
(b) the order is not manifestly unlawful.
(4) Every one who, in good faith and on reasonable grounds, believes that serious mischief will result from a riot before it is possible to secure the attendance of a peace officer is justified in using as much force as he believes in good faith and on reasonable grounds,
(a) is necessary to suppress the riot; and
(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.
(5) For the purposes of this section, the question whether an order is manifestly unlawful or not is a question of law.
Subsection 1 only provides protection to a peace officer that uses or orders necessary force. Although the term “uses” is self evident, the word “orders” requires further discussion as it relates to subsection 2 and 3 and the protection of those who “obey” such orders to use force. Clearly, the section provides protection not only to those directly involved in suppressing riots but also those who are indirectly involved by giving the order or commands to suppress a riot. Why should this be the concern of a Criminal Code protection? The answer lies in the historical consideration of these sections and are, of course, very much related to the historical view of riots and those preventing them.
For this historical viewpoint, the first place to turn is to James Fitzjames Stephen, British jurist and the “father” of our codified criminal law. As I have discussed in previous blog, Stephen was a staunch supporter for codification of criminal law in England just at the time the Dominion of Canada was developing national laws. Although England did not follow Stephen’s recommendation, other commonwealth countries besides Canada did. In his treatise “A History of the Criminal Law of England, Volume 1,” Stephen devoted a chapter on suppression of riots. Anyone who has a smattering of awareness of the history of England, knows that riotous behaviour appears to be a regular feature of that history. This familiarity with the mob appears to be the catalyst for much of English common law and Canada, at least in this instance, appears to be the beneficiary of this propensity. According to Stephen, every citizen had a right and duty to protect public peace as “violence in all forms was so common, and the suppression of force by force so simple a matter, that special legislation did not seem necessary in very early times.” Despite this belief, as early as the 14th Century, legislation was in place relating to riots and was quite similar in tone and composition to the riot sections found in the Code today. Historically, twelve members of the community comprised the magic number for a riot, which is telling considering twelve is also the number required to constitute a valid jury. However, in the Code, an unlawful assembly under s. 62, which is not necessarily a riot, requires only an assembly of three or more persons. An unlawful assembly becomes a riot, pursuant to s. 63, where that assembly begins “to disturb the peace tumultuously.” But the ability to disperse a crowd through governmental proclamation required the mob equal twelve or more individuals. I will have more to say on this aspect when we arrive at those riotous sections.
In any event, it is clear that suppressing a riot has a long and tumultuous history and therefore the protections required, from preventing a riot to ordering the prevention of riots, are firmly within the Code protection/justification sections. This brief look back also explains why 32(2) applies to those suppressing a riot in accordance with military law as historically, riots, seen as a form of treason against the Crown, were typically suppressed by military force. Protection is required as a riot can turn into a revolution, which can in turn change the government and those supporting the old government by suppressing the riot of the newly formed government might find themselves on the wrong end of the law. Thus, s. 32(2) in certain circumstances can protect those who are merely following and obeying orders. This protection also extends to citizens who assist peace officers in suppressing riots under subsection 3.
The urgency suggested by this obligation to suppress a riot unless the order to do so is “manifestly unlawful” in accordance with the section reflects the historical seriousness with which these potential dangerous gatherings were treated. However, as indicated in subsection 2 for the militia and subsection 3 for citizens, the justification of following orders is not available if the order is “manifestly unlawful.” This phrase appears only in this section of the Criminal Code although the word “unlawful” is no stranger to the Criminal Code, typically meaning an act contrary to statute, be it criminal or regulatory. The word “unlawful” has a further meaning when connected to a predicate offence as it then also requires that the underlying unlawful act must be objectively dangerous as per the 1992 SCC DeSousa case. The descriptor “manifestly” is defined in the dictionary as easily understand or recognized by the mind.
A brief review of case law on the use of the term reveals that the phrase, “manifestly unlawful,” is a term often used in military law in relation to the requirement to follow superior orders, particularly where superior orders are conflicting. Under Article 19.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&Os) deals with "Conflicting Lawful Commands and Orders" and according to the notes accompanying the QR&Os, it is usually clear if an order from a superior officer, which includes a non commissioned member, is lawful or not. If however it is unclear or the subordinate does not know the law, then the subordinate must obey the command unless it is manifestly unlawful.
Of course the issue then becomes evident to whom? Does the law require the unlawfulness of the order be manifestly evident to the person following the orders – as in a subjective test – or manifestly evident to the reasonable person – as in an objective test? Although, an argument could be made that this determination requires a subjective assessment of the subordinate’s state of mind, according to military interpretation, “manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal,” requiring an objective test albeit in the context of the circumstances of the case. This phrase is important for military law as if a soldier follows a manifestly unlawful command, he or she is liable for his or her actions under civil or criminal law.
In the 2009 Matusheskie case, the Court Martial Appeal Court of Canada considered the term “manifestly unlawful” and found that the threshold for finding an order “manifestly unlawful” was very high. In support of this finding, the Court looked to the SCC discussion of the defence of following superior orders in the Finta case relating to Finta’s war crimes committed in WWII. As Justice Cory explained in Finta, “manifestly unlawful” is an order that “offends the conscience of every reasonable, right thinking person; it must be an order which is obviously and flagrantly wrong. The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.” The determination of “manifestly unlawful” is as stated in subsection (5) a question of law.
Finally, the gravity of riots permits citizens, who are unable to secure the attendance of a peace officer, to take into their own hands the suppression of a riot under subsection 4 if the actor believes “serious mischief” will otherwise result. The phrase “serious mischief” is again unique to this section, although of note the term did appear under the pre-2010 Alberta Rules of Court in relation to ex parte motions. Under the old Rule 387 an ex parte motion may only proceed if the applicant establishes that the delay caused by regular proceedings might “entail serious mischief.” The new rule 6.4 considers whether or not “undue prejudice” would be caused to the applicant. In other jurisdictions, the phrase is also used in a similar civil context and refers to “irreparable or serious mischief” caused by not proceeding by way of ex parte motion such as in s. 441(3) - now Rule 6-3(3) - of the Saskatchewan Queen’s Bench Rules. This suggests that the “mischief” or harmful behavior must be dangerous indeed.
Section 33, requires a peace officer and those assisting a peace officer to “disperse” or arrest those persons who do not comply with a proclamation under s. 67 or has committed an offence under s. 68. These sections, which we will discuss more specifically in later episodes, refer to the proclamation or order to disperse, which must be read by a government official, under section 67, where twelve or more persons (recall the 14th Century English laws on riots) are “unlawfully and riotously assembled.” Section 68 refers to offences committed when those ordered to disperse under s. 67 fail to do so.
Sections 32 and 33 are part of English common law history and remind us of a more unstable time when mobs could oust the rule of law. The societal harm when that possibility occurs is neatly reflected in Shakespeare’s historical play, Henry VI Part 2 in Act 4 Scene 2 wherein the line “the first thing we do, let’s kill all the lawyers” is spoken as a call to anarchy and disorder and a reminder to those law abiding members of the audience to take heed.
A few weeks ago, I had an opportunity to address the students from Professor Glen Luther and criminal lawyer Brian Pfefferle’s Intensive Criminal Law Program at the University of Saskatchewan College of Law. It is always a pleasure to speak to a group of dedicated and eager students who have chosen the rewarding, yet often, difficult task of criminal work, be it prosecution or defence. The topic on which I chose to speak was on criminal appellate advocacy including practical considerations, the process and the written advocacy required. I also discussed the bail pending appeal process on conviction appeals to the provincial court of appeal and the criteria for release as outlined under s. 679(3) of the Criminal Code. This is an area rarely touched upon in law school and yet is an important step in the appellate process. Although s. 679(3) sets out articulable grounds for release, the judicial interpretation of the public interest ground has been unclear and often inconsistently applied. Yet, it tends to be the public interest ground relied upon by the Court to dismiss the bail pending appeal application.
Bail pending appeal significantly differs from judicial interim release at first instance, as the offender no longer has the advantage of the presumption of innocence. It is therefore the offender who has the burden to persuade the single Justice hearing the application to release the applicant pending the hearing of the appeal. If an offender is released on bail pending the appeal, he or she will be required to surrender into custody before the matter will be heard. Typically, this is manifested through a bail condition for the Appellant to surrender the evening before the hearing date. The custodian of the jail will transmit a confirmation this has been done. If the Appellant fails to surrender, the bail may be estreated, if applicable, and the appeal will be deemed abandoned.
Considering the onus is on the Appellant, The Court of Appeal Justice, in determining the bail pending for a conviction appeal, must be satisfied, as per s.679(3) that the Appellant will:
(a) the appeal or application for leave to appeal is not frivolous;
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest.
These three factors for release, as will be discussed, are not treated by all appellate courts as mutually exclusive and are interconnected. The requirement, for instance, that the Appellant will surrender himself into custody is related to the other factor that detention is not necessary in the public interest as an Appellant who does not establish that he will obey the court terms would also have difficulty establishing that the detention is not necessary in the public interest. Those Appellants who fail to fulfill the surrender requirement would be offenders who have failed to comply with recognizances in the past and/or have fail to appears on their criminal record. This kind of evidence goes to the concern, applicable to this ground,that the Appellant is a flight risk and will therefore evade serving the sentence. This concern is connected to both aspects of the public interest ground as a failure to surrender would bring the administration of justice into disrepute and would put the public safety at risk. Usually, however, the Appellant can satisfy the requirement to surrender with appropriate conditions and sureties and this factor is not the factor, which causes the Court the most concern.
The next requirement that the appeal is not frivolous has been traditionally a matter of the Appellant establishing that the appeal is arguable or that the appeal would not necessarily fail. This requires some argument on the grounds of appeal as proposed in the Notice of Appeal and as evidenced by the trial record. Usually, this ground too is fairly simple to establish, although obviously dependent on the ground being advanced. Certainly an appeal based on a question of fact or mixed law and fact would be more difficult to argue than a question of law due to the principle of deference to the trial judge in those factual findings. But this is not where the real difficulty appears. The real difficulty for the Appellant is in the public interest ground where some courts take into account the strength of the appeal in the assessment. An Appellant may, therefore, be able to establish that the appeal is arguable but if the appeal is arguable but weak this finding may impact release under the public interest ground. This is certainly the case in Alberta but not the case in Newfoundland. I will now discuss this a schism on this issue and the implications for an Appellant in arguing a bail pending where the Court prefers the Alberta position. In my view, this is an inconsistency, which requires direction from the Supreme Court of Canada.
First, we must be mindful of the legal interpretation of the phrase “not necessary in the public interest.” The classic definition or legal interpretation comes from the 1993 Farinacci case. In that decision, Justice Arbour finds there are two aspects to the term “public interest” as it involves both protection of the public and public respect for the administration of justice. This dual nature of public interest, she further explained, in the context of a bail pending appeal balances enforceability with reviewability. There is a public interest in having judgments of the court obeyed and therefore enforced. However, there is an equally cogent reviewability interest, which requires that judgments be error-free. In criminal law, therefore, there is an important interest in ensuring the law is applied but applied in a fair and just manner. A judgment, which perpetuates a miscarriage of justice, is in law, no judgment at all.
So far, the meaning of public interest appears to apply legal common sense and the kind of balancing we are so familiar with in Canada. But, it is the extension of this interpretation in the Alberta Court of Appeal Rhyason case, written by Justice Berger, which causes an imbalance to the Farinacci structure by placing undue emphasis on the strength of the Appellant’s appeal. I would argue that this emphasis is misplaced as it elevates the s. 679 requirement that the appeal not be frivolous to a higher standard depending on the public safety aspect of the public interest ground.
In Rhyason, the Appellant was convicted of impaired causing death in 2006. He had a prior conviction for impaired driving and was sentenced to eighteen months incarceration. He was gainfully employed at the time of incarceration and enjoyed the support of his family. At the time of the bail pending, he had been ticketed for speeding on three occasions and was convicted of failing to comply with the reporting condition of his pre trial bail as he had failed to telephone in as required.
On appeal, the defence advanced a number of errors entered into by the trial judge including an error in the finding that the officer had reasonable and probable grounds for the breath demand. Justice Berger in dismissing the bail application found there could be a close connection between both the requirement that the appeal not be frivolous and the requirement that the Appellant surrender with the public interest ground. As already discussed, there is a rational connection with the requirement to surrender but a connection that can be addressed by proper bail terms. However, by relating the strength of the appeal to the public interest ground, Justice Berger was not merely making a reasonable and valid connection but imbued the public interest with a further requirement that the Appellant must establish a certain a level of “argueability” to the appeal, which is simply not required under the rubric that the appeal simply not be considered frivolous.
Essentially, Justice Berger created a “sliding scale” whereby the more compellable the public interest is in further detaining the Appellant, the stronger the appeal must be for the Appellant to be released on bail. In the case of Rhyason, Justice Berger found compelling public interest reasons for detention although the appeal was “clearly arguable”, and therefore was “clearly” not frivolous, however, in Justice Berger’s opinion, the grounds for appeal did not have a “strong prospect of success,” which required the Appellant be ordered to remain in custody. For the Appellant to be released, according to Justice Berger, Rhyason would have to have an appeal that was more than clearly arguable to “trump” the public safety concerns in the case.
Ironically, the Rhyason case was appealed all the way to the Supreme Court of Canada on the basis of a dissent in the Alberta Court of Appeal. Although the Supreme Court of Canada ultimately dismissed the Appellant’s appeal, it was a split 5:4 decision – a far cry from an appeal, which Justice Berger characterized as not having a strong prospect of success.
The Rhyason analysis was recently tested in the Alberta Court of Appeal case from 2015 in the Awer decision. Justice Berger was again faced with a bail pending application in which the Crown, opposing the release, urged the court to enter into a Rhyason analysis tying the strength of the appeal to the public interest issue. In releasing the Appellant on bail, Justice Berger attempted to limit the broad test he enunciated in Rhyason. Thus, in Awer, he found that the Rhyason analysis was only engaged when there was a “moderate” to “compelling’ public interest in detention, which was not the case in Awer. It should be noted that in Awer the accused was convicted of a serious sexual assault but there was conflicting expert evidence which, according to Justice Berger, “was a critical component” to the finding of guilt or innocence. Awer was released as his appeal was not frivolous and the terms of the bail could ensure public safety.
The Newfoundland Court of Appeal has taken a position strongly opposed to Rhyason in a number of cases (see Parsons, Allen, and Newman) and will not take into account the strength of the appeal under the public interest ground. The British Columbia Court of Appeal in Ali and in Al-Maliki cases appears to be firmly on side with Alberta.
There are many concerns with the Rhyason analysis. As earlier discussed the threshold requirement that the appeal not be frivolous is not only elevated but also fluctuates depending on how compelling the public interest is in a particular case. This uneven application of bail requirements allows for inequities between various Appellants, such as evinced in the Awer and Rhyason cases. As demonstrated in Rhyason, a case, which was not just “clearly” arguable but “strongly” arguable, the Rhyason analysis invites a single Justice to dispose of an arguable appeal without the benefit of a full transcript, a full argument and a full court. Further, this approach fails to properly consider the other important aspect of the public interest – reviewability – and the public confidence resulting from the need to provide a meaningful opportunity for an individual to appeal to protect society from miscarriages of justice. Without a clear and articulable standard, reviewability and our concept of justice will be hampered by an Appellant who abandons an appeal as a result of serving his or her sentence. Such a result is clearly not in the public interest.
Immediately preceding the “suppression of riots” sections in the Code, which we discuss in Episode 37, are two sections on preventing breach of the peace, sections 30 and 31. The are only two other sections, which make specific reference to the “breach of the peace.” One is section 72 relating to forcible entry and forcible detainer – a section that we will eventually discuss but without giving away the fascinating history of this section, is a definite nod to old English common law from the medieval period. The other reference to breach of the peace is found in section 319 “public incitement of hatred.”
Although this term appears sparingly in the Code, it is referred to in many criminal decisions as an underlying objective of the criminal law, which is to prevent and contain breaches of the peace. The phrase is used for instance in discussing a breach of a recognizance condition of “keep the peace and be of good behavior.” It has meaning for a “peace bond” under s. 810 and pursuant to the common law. It also relates to the historical creation of trespass as a citizen’s means to address breaches of peace on private property - Harrison v. Carswell,  2 SCR 200. The term is also relied upon in Jobidon as a justification for the English common law prohibition against consensual fist fights as they notoriously lead to breaches of the peace. Finally, in R. v. Kerr,  2 SCR 371, the breach of the peace is discussed in relation to the required elements of s. 88 offence of possession of a weapon for a purpose dangerous to the public peace.
What exactly is a “breach of the peace”? The phrase was considered in Frey v. Fedoruk et al. a 1950 Supreme Court of Canada decision on a claim of false imprisonment and malicious prosecution. The claim arose when the Appellant was placed under a citizen’s arrest for unlawfully acting “in such a manner likely to cause a breach of the peace by peeping at night through the window.” Apparently, the window was curtain-less, which caused the defendant to chase the Appellant down the street and effect a citizen’s arrest. Justice Kerwin, in concurring with the majority in allowing the appeal for the Appellant, relied upon the following definition of the phrase “breach of the peace” from Clerk and Lindsell on Torts (then in its 10th edition and now, impressively, in its 21st iteration):
“A breach of the peace takes place when either an actual assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not breach of the peace. Thus a householder - apart from special police legislation - cannot give a man into custody for violently and persistently ringing his door-bell.”
The majority too preferred a more restrictive definition of such a breach of the peace, which did not contemplate a potential vigilante reaction but was more akin to a “riots, tumults, and actual physical violence.” The broader interpretation, so the Court held, was more applicable to the special case of forcible entry and forcible detainer pursuant to s.72, which as I earlier stated, we will discuss further down this Criminal Code road. In any event, the Court found the Appellant’s conduct did not amount to a known offence in criminal law as there was no breach of the peace and mere trespass was not a criminal offence.
Sections 30 and 31 grant authority to a citizen who witnesses such a breach of the peace to prevent it under section 30 and permits a police officer to arrest a person breaching the peace under s. 31. The sections read as follows:
Preventing breach of peace
30. Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.
Arrest for breach of peace
31. (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.
(2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace.
As already recognized in the case I previously referred to, Frey v Fedoruk et al, the concept of breach of the peace is old indeed and certainly the authority to prevent such a breach and arrest on the basis of such a situation comes to us from the English common law tradition. The eminent English legal scholar, Glanville Williams, thoroughly discussed this concept in his oft-quoted seminal article, “Arrest for Breach of the Peace”,  Crim. L. Rev. 578. Please note this article cannot be found online but an excellent discussion on his views are examined in The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams edited by Dennis J. Baker, Jeremy Horder, in the chapter on “Preventative orders and the rule of law.” I highly recommend this book. This excerpt of the book can be accessed on Google Books. Glanville Williams lucidly explains the purpose behind the English common law “breach of the peace” provisions as preventative in nature.
Section 30 is essentially a legal justification for the use of force and therefore it is important for defence counsel to keep this section in mind when representing an accused for a violent offence. An accused who relies on this section must use no more force than is necessary and it must be proportionate to the potential harm inflicted by the continuance or renewal of the breach of the peace. However, as with any legal defence, there must be an “air of reality” to the defence before the trier of fact will consider it. Again, it must be remembered that the meaning of “breach of the peace” as previously discussed also circumscribes the defence. Also be mindful of some of the other words and terms used in the section – as the defence will have to establish the existence of these terms as well in order to rely on the legal justification. The person must “witness” the events. Additionally, the person is merely required to “interfere.” The dictionary definition of “interfere” is “to become involved in the activities and concerns of other people when your involvement is not wanted.” This is a much less onerous requirement than an actual use of force. Also, this section, as mentioned previously, also applies in preventative situations where there is a potential for a person to become involved in a breach of the peace.
Section 31 is temporally connected to section 30 as it contemplates the arrest of an individual who is breaching the peace and who, the arrestor believes on reasonable grounds will join or renew any such breach. Here the arrestor must either “witness” the events or receive an accused from a person who has witnessed the events. The actions, as is usual for these justifications and protections, must be reasonable in the circumstances. The section therefore gives an officer or an assistant the power to arrest in the circumstances and the right to take into custody a person who is detained pursuant to section 30.
In this episode, I will discuss two sections of the Criminal Code pertaining to the execution of a warrant for arrest. Section 28 is another section protecting those who enforce the law from criminal responsibility in certain circumstances. The circumstances in this instance is executing a warrant for an arrest of a person who is not the person named in the warrant.
The person so executing the warrant is only protected against this “mistake,” pursuant to s. 28(1), if he or she believed “in good faith and on reasonable grounds” that the person he has arrested is the person named in the warrant. Similarly, under s. 28(2)(a) any person assisting in the execution of the warrant is also relieved from criminal responsibility if he or she believed that the person arrested is the person named in the warrant. Notice that this belief is not required to be “in good faith and on reasonable grounds.”
Finally, in section 28(2)(b), a prison official or “keeper of a prison” who is required to “receive and detain” a person pursuant to the authority of the arrest warrant, is relieved from criminal responsibility where the keeper believes the person so detained is the person named in the warrant. Again, there is no requirement that this belief be “in good faith and reasonable.” It should be noted that the term “prison” is defined under s. 2 of the Code and includes “a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody.” Therefore, this section would protect from criminal responsibility the police officer in charge of the police station lock-up.
There are of course possible civil implications for arresting the wrong person for which the section does not provide any immunity. Indeed, at common law the person executing a warrant against the wrong person could be liable for false imprisonment. However, evidence of good faith could mitigate the damages. In the 1968 case of Fletcher v. Collins et al. , the trial judge dismissed an action for assault, false arrest and false imprisonment against the police for arresting the Plaintiff, who had the same name as the person in the warrant but was not the person in question. In that case, the appearance of the Plaintiff fitted the general description given of the suspect. Furthermore, the Plaintiff’s belligerent attitude upon arrest reinforced the officer’s belief that he had arrested the correct person. The court found that not only were the officers acting in good faith but they were also acting as a reasonable person would in the circumstances.
Section 29 approaches the granting of immunity from criminal responsibility differently than other such sections. It is useful to set out the whole section as follows:
29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.
(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of
(a) the process or warrant under which he makes the arrest; or
(b) the reason for the arrest.
(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility.
Section 29(1) sets out a duty or responsibility of the person executing a warrant or process to have the document, if feasible to do so, and to present it upon request. There are different types of warrants referred to in the Code such as a search warrant under s. 487, a telewarrant under s. 487.1, a bench warrant under s. 597 of the Code and an arrest warrant under s. 83.29. The word “process” is not defined in the Code but there are references in the Code, which can help define this term. For instance, process is referred to in the headings of certain sections, such as s. 507, which relate to legal documents that are issued by a court of competent jurisdiction. Often these documents require the accused’s attendance in Court such as a summons, a warrant or a notice. Process may also relate to the seizure of property such as under s. 270 or to civil process under s. 176 or to the powers of the Court of Appeal under s. 683.
Often s. 29 is relied upon to require police officers executing a search warrant to have the warrant available for presentation in order to provide the person with information relating to the reason for the search and to provide information relating to the authority of the search, which would inform and assist in the person’s assessment of his or her legal position. However, this duty does not require the officers to automatically produce the warrant but to merely have it and produce when asked to do so.
Historically, as thoroughly discussed in the 2000 British Columbia Court of Appeal case of Bohn, this section is a codification of the common law although the section prior to amendment in 1953 required a person executing a warrant or process to have the document and to produce it upon request, without the present condition that this be done only if “feasible.” In the 2010 Supreme Court of Canada Cornell case, the majority and dissent took very different views of s. 29. The majority decision written by Justice Cromwell, determined that in the context of a search of a premises, the objectives of the section would be fulfilled as long as a member of the search team possessed the search warrant. In that case, the lead investigator possessed the warrant but he did not take part in the initial search when the tactical team first entered the premises. In a strongly worded dissent written by Justice Fish, a failure in the duties under section 29 were described as a “violation of a venerable principle of historic and constitutional importance,” which was “not a technical or insignificant breach of the law.” Thus, for the dissent the fact that the first officers to enter the premises did not have the warrant in hand was a violation of s. 29.
Section 29(2) is a more specific duty requiring those who arrest a person, with or without a warrant, to give notice to the person of the warrant or the process under which the arrest is being made or to give notice of the “reason for the arrest.” The duty is only required “where it is feasible to do so.” Even if the duties under section 29 are not fulfilled, s. 29(3) protects the person from criminal responsibility.
In the 1973 Supreme Court of Canada Gamracy case, the Court determined that s. 29(2) applied to arrests without a warrant and s. 29(1) did not apply. Further, s. 29(2)(a) and 29(b) should be read disjunctively. Therefore an officer making an arrest without a copy of the warrant discharges his or her duty by advising the person of the existence of the warrant or process under which the arrest is being made. There is no subsequent duty for that officer to present the actual warrant or process.
The Charter has, to some extent, constitutionalized s. 29(2)(b) under s. 10(a) requiring a person on arrest or detention the right to be informed “promptly” of the reasons. Clearly, the Charter right is more stringent as s. 29(2) only alleviates the person from fulfilling this s. 29 duty if fulfillment is not “feasible.” Thus an officer simply advising a person that there is a warrant in existence may not fulfill this Charter duty: see R. v. Wrightman, 2004 ONCJ 210 (CanLII). Ultimately, whether or not a failure to comply with s. 29 amounts to a Charter breach will depend on the facts: see the ABQB 2014 case of R v Gerlitz where such a failure did not amount to a Charter violation.
In a previous Podcast, I discussed section 14 of the Criminal Code as the codification of a common law prohibition that a person is not entitled to consent to his or her own death. In that episode, I referred to the pending Supreme Court of Canada Charter challenge to the section as it related to the right to die. Recently, the Court released the Carter decision on the issue and, as many predicted, sections 14 and 241 were deemed constitutionally invalid to the extent that they prohibit a competent adult from seeking physician-assisted death where the person clearly consents to death and has a “grievous and irremediable medical condition,” which causes intolerable chronic suffering to the consenting individual.
The implications to section 241, which we will come to later in the Podcast series, will no doubt require a complete overhaul of the section. Considering the Federal government has a year to contemplate and re-legislate in the area, I have no doubt by the time we arrive at section 241, we will be looking at a very different section than present.
But how about section 14? How can the statute writers approach this section to ensure it is consistent with the Carter decision? Further, how does this decision impact the common law principle enunciated since Jobidon, which precludes individuals from consenting to bodily harm in certain circumstances. By extension, any argument re-opening this discussion on Jobidon may impact the law concerning sexual assault and the issue of “rough” sexual activity. I have discussed these issues in a previous blog entitled What’s Wrong With Jobidon. Although I leave it to the Reader to review this posting to understand and imagine the possible implications of revisiting Jobidon, I will suggest that an argument may now be made that clearly consenting competent adults should be able to engage in “rough” sexual activity as long as both consenting parties adhere to the scope of that consent.
Returning to the issue of section 14, Canada is the only commonwealth country to date, which has legalized physician-assisted death. Indeed, in the New Zealand Crimes Act 1961, which is a codification of criminal law similar to our Code, section 63 prohibits consenting to death in very similar terms to our own Code prohibition. Of note, is the UK experience where the common law principle prohibiting consenting to death is essentially codified through the Suicide Act 1961. Similar to Canada’s position before the Carter decision, a person could commit suicide but could not seek assistance to end life. Since 2010, the UK Crown Prosecutors have a policy on assisted suicide charges to help guide the Crown on the discretionary decision-making process to prosecute such cases or not. Of note, however, is the 2002 European Court of Human Rights decision in Case of Pretty v. The United Kingdom. The Applicant was paralyzed and suffering from an incurable degenerative disease and sought the DPP ‘s (UK Director of Public Prosecutions) agreement to grant immunity from prosecution should her husband assist her in ending her life. The DPP refused such consent and the European Tribunal, in determining whether by refusing such immunity the UK was in violation of various articles (2,3,8,9 and 14) of the Convention for the Protection of Human Rights and Fundamental Freedoms, reviewed the Canadian law at that time, including the Rodriguez case. Ultimately, the Court found that the UK legislation and policy position did not violate the Convention. It is useful to review this decision to understand how these Convention articles to some extent mirror the sections found in our own Charter.
This paucity of examples from similarly situated legal systems – English common law - may prove to be a difficulty for Canada in crafting an appropriate legislative response to the Carter decision. Canadian legislative drafters will need to look to American laws (see the Death With Dignity Act – Oregon) and Continental European laws (see the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act) to hopefully arrive at a uniquely Canadian response, which embraces Charter values and is consistent with our concepts of a free and democratic society.
In the last episode we discussed the Criminal Code sections pertaining to the excessive use of force. This section recognizes that force may be justifiably used in certain circumstances but even so, must be used reasonably, proportionally, and when necessary. Sections 27 and 27.1 continue this conversation of the appropriate use of force in providing justification, in certain circumstances, for those who use force to prevent the commission of an offence. Section 27 provides a general justification while section 27.1, being a new amendment to the Code from 2004, provides a specific justification relating to acts committed on board an aircraft.
What must be remembered when we discuss these Code sections is that the elements of an offence resulting from the force used are proven. In other words, if the act is an intentional application of force without consent and the intention to commit this act is present, all of which the Crown can prove beyond a reasonable doubt, then an assault has occurred and but for the justification the person so applying the force would be convicted of a criminal offence. This is in line with the legal defences known as justifications recognized by common law and our criminal law through the Code. We will discuss the concept of self-defence as we move through these sections, but we must recognize we are not suggesting the essential elements of the crime cannot be proven but that the person’s actions are justified on the basis of a recognized legal defence.
We shall first look at section 27, which reads as follows:
Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
This section has basically remained the same since the 1892 Criminal Code. It contains the essentials of statutory and common law concepts of self-defence by requiring the force used to be no more than is reasonably necessary.
However, the section, under subsection (a), restricts the reasonably necessary use of force to the prevention of the commission of an offence for which the person could have been arrested without a warrant and only if that person’s actions would “likely” cause “immediate and serious injury” to person or property. The Code has a number of sections, which pertain to the arrest of a person with or without a warrant. Most notably, section 494 outlines the circumstances where any person may arrest another for an offence without a warrant and section 495 outlines when a peace officer may arrest a person without a warrant. As section 27 refers to “every one,” it covers both an arrest by a citizen and an arrest by a peace officer. Section 494, which I do not want to discuss in detail as yet, was recently amended as a result of some high profile lobbying by storeowners, who wanted the ability to pursue an alleged shoplifter for the purpose of a citizen arrest. Prior to the amendments such arrest was predicated on the person immediately arresting a person found committing an offence in relation to their property.
Although the arrest provisions in the Code are circuitous, in the end the only people who should be arrested without a warrant are those charged with more serious indictable offences or those who may be charged with less serious offences but will not show up for trial unless arrested or there is a public interest in arresting the accused. The public interest would therefore require an arrest where the accused won’t identify him or herself or if the offence might continue if no arrest is effected such as in an impaired driving offence. Also an accused may be arrested without a warrant where evidence will be destroyed or tampered with should the accused not be in custody. Ultimately, even after arrest, the accused can still be released by appearance notice or summons.
Even if the offence is one for which the person could be arrested without a warrant, the force used to prevent the commission of the offence cannot be justified unless the accused’s actions would “likely” cause immediate and serious injury to person or property. There is no Criminal Code definition of “serious injury.” According to the dictionary meaning, injury means any “harm or damage.” “Serious” is defined as a significant event with possible dangerous results. In accordance with the 1991 Supreme Court of Canada McCraw case, “serious bodily harm” was defined as “any hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the complainant.” Section 27 refers not only to serious injury of the person but also of property. Also, the serious injury need not have occurred but need only “likely” to occur, meaning that the serious outcome may be the likely result of the actions as opposed to the certain results of the action.
Subsection (b) of section 27 justifies the use of reasonably necessary force when the person using such force believes, on reasonable grounds, the suspect is doing acts that would lead to the commission of an offence in the circumstances as outlined under 27(a). In other words, the person using force has an honest and reasonable belief that the acts fulfill the criteria as outlined under (a). As (b) focuses on the person’s belief, force may be justified under this section even if the acts did not amount to a commission of an offence under (a) as long as the subjective belief was reasonable in the circumstances. This assessment is therefore a blend of subjective and objective factors, consistent with the kind of assessments done in determining the applicability of the defence of the person and property provisions under sections 34 and 35.
Section 27.1, is a new addition to the Code and extends the justified use of force to circumstances on board an aircraft. It employs slightly different wording than the broader s. 27. In fact the section, in my view, appears to be a better worded section probably because it is a newly written section. Section 27.1 reads as follows:
(1) Every person on an aircraft in flight is justified in using as much force as is reasonably necessary to prevent the commission of an offence against this Act or another Act of Parliament that the person believes on reasonable grounds, if it were committed, would be likely to cause immediate and serious injury to the aircraft or to any person or property therein.
(2) This section applies in respect of any aircraft in flight in Canadian airspace and in respect of any aircraft registered in Canada in accordance with the regulations made under the Aeronautics Act in flight outside Canadian airspace.
This section clearly sets out a justification for use of force on board an aircraft if it is reasonably necessary force used to prevent a commission of an offence for which the person believes on reasonable grounds would likely cause immediate and serious injury to any person or property within the aircraft. Again the assessment involves subjective and objective determinations, as the person’s subjective belief must be based on reasonable grounds. Also note that the offence need not be one for which the accused must be arrested without a warrant but for any offence either under the Code or any federal statute such as the Aeronautics Act. Subsection (2) specifies that that the acts must occur on any aircraft as long as the aircraft is in Canadian airspace or in international airspace as long as the aircraft is registered in Canada.
Parliamentary debates and backgrounders on section 27.1 suggest that the Liberal government, in power at the time, requested these amendments, not to change the general provisions under s. 27, but to ensure that such protection was extended to the appropriate use of force on a Canadian aircraft “outside of Canadian airspace.”
It should finally be noted that together with this new section 27.1, the government further amended the definition of “flight” under section 7(8) of the Criminal Code to include reference to s. 27.1. An aircraft is “in flight,” in accordance with that definition until the later of the time at which the door is opened for disembarkation or until, where the aircraft makes a forced landing, in circumstances where the owner or operator of the aircraft is not in control, the owner or operator of the aircraft resumes such control of the aircraft. Clearly the definition of “in flight” has been extended to include the use of force to prevent possible terrorist acts relating to the highjacking of an aircraft up until the suspect is overwhelmed and is no longer in control of the aircraft.
A case commentary typically expounds on the legal doctrinal issues raised by the decision and rarely looks at the judgment as a literary document. The final full SCC judgment of the year, Fearon, has been much discussed on the doctrinal level but as a final 2014 legal send-off, a different kind of case commentary is in order.
On a literary linguistic level, the Fearon case is a fascinating example of how the majority and the dissent employ differing or shall we say dueling word usage. The choice of terminology is not only intended to signal a very particular perspective but firmly connects the decisions to doctrinal perspectives emanating from prior cases. This continuity with the past provides precedential value to the two decisions and challenges us, as readers, to determine which decision is really the right one. Hand in hand with this analysis, is the revealing metaphors abounding in these decisions.
Let’s first look at the majority decision written by Justice Cromwell. The first term used in this decision is the phrase “truly incidental” as in the police generally (note that the general versus the specific is also underlined in the majority decision) have a common law power to search a cell phone incident to arrest if the search is truly incidental to the arrest. Not just incidental but truly incidental. In the judgment there are 22 incidents of this phrase, all in the majority decision! Yet, in terms of previous SCC cases, the term appears only in the Caslake decision, which found an “inventory” search of an accused’s vehicle, hours after arrest, invalid as such a search was not “truly” incidental. For a search to be truly incidental, there must be a “valid purpose” connected to the arrest. By the way, the term “valid purpose” pops up 5 times in the majority judgment.
Caslake is referred to 15 times in the judgment, with 12 references in the majority and 3 in the dissent. The dissent refers to the generalities of Caslake - as to when a warrantless search may be appropriate - and does not mimic the s. 8 language as the majority does. Although “truly incidental” is found in only 2 SCC criminal cases, the term is used in lower court nomenclature. In Ontario, including Fearon, there are about 46 cases using the term but they all occur after 1998, the year the SCC decision in Caslake was released. Although the Manitoba Court of Appeal decided the lower court decision in 1995, Caslake, was not, as yet, part of the s.8 vocabulary.
Before we move onto other terminology, note that the phrase “strictly incidental” is used only once as is the phrase “properly incidental.” According to the Merriam-Webster Dictionary, “truly” is defined, for Fearon purposes, as “without question or doubt” and “strictly” means “rigorously conforming to principle or a norm or condition.”
The word “prompt” is used 31 times, with only two of those occasions by the dissent and for very different reasons. The majority uses the word “prompt,” defined as “performed readily or immediately” to provide the underlying reason for a search incident to arrest as the immediate need to investigate the offence by gathering crucial evidence. It is the timeliness and the speed with which the police must pursue this investigation, which underlies the majority decision. Conversely, one of the times the dissent uses “promptly” is in reference to Justice Cromwell’s majority decision and the other occurrence is to highlight how quickly the police, in the case, applied for a warrant when case law suggested they needed to do so. Thus the term “immediate” or “immediately” is used often throughout as well.
Another phrase used liberally throughout the majority decision is the phrase “law enforcement objectives,” which is used 26 times, 4 of which is in the dissent. Again, 3 of those 4 occasions in the dissent are direct references to Justice Cromwell’s majority decision. This term is used in 4 previous SCC cases, 3 of which are search and seizure cases being the Law case from 2002 – privacy interest in stolen property; Chehil – sniffer dog case involving the search of vehicles from 2013; and the Stillman case of 1997 the case on the seizure of bodily samples and discussed at length in Fearon. The term “law enforcement” is further described in the majority judgment as being “important” 12 times in the majority.
The word use is much different in the dissent. Indeed, the atmosphere of the two decisions differs dramatically. Justice Cromwell’s decision has a law and order aspect reminding us of the need for investigatory powers to enhance and uphold the rule of law. As will be discussed below, the choice of words highlights this theme through the use of metaphors involving balancing and weighing and metaphors involving the limitation of space and time.
In contrast, the dissent is a decision marked by Charter values and modernity – it reads like a law school paper on constitutional rights and freedoms, inviting the reader to muse on the lofty ideals crucial to a free and democratic society. Indeed that term, “free and democratic society” appears three times in the dissent (plus “democracy” appearing once) and appears there only with no such Charter values relied upon in the majority, other than the balancing of rights required under s.8.
Other Charter values involving individual rights and freedoms are also relied upon in the dissent decision but it is the word “privacy” that trumps them all. This word is used 123 times in the decision with the word used 37 times in the majority but a whopping 86 times in the dissent. Certainly “privacy” is a word that at some point must be used by the majority when the decision speaks to the balancing of rights under s. 8 but more telling is the use of the word “private” in the decision. It occurs once in the majority but only in reference to strip searches and “private areas.” In the dissent however “private” occurs 27 times to describe “private digital devices,” “private lives,” and the “private sphere,” among some of the uses of the term. Again, this term is signaling the core of the dissent’s decision that privacy is at stake in the case and therefore it is privacy and the living of the “good” life protected by Charter values which are be the controlling issues in the case.
Not only are certain terms and phrases utilized to bolster each of these decisions but the decisions use the literary device of metaphor to solidify and justify the decisions as well. Thus, both the majority and dissent use balancing and weighing metaphors (25 times) to support different outcomes. The majority relies heavily on space metaphors and the desire to delineate the space wherein the rule of law must reside requiring the use of the words “scope” and “parameters” and “limits” and “points” by the majority. The majority also uses work or structure metaphors, using the term “framework,” “task,” and “link.” The dissent uses social words connoting society and community such as “lives,” “relationships” and “intimate” with a liberal use of emotive terms such as “likes and dislikes, our fears, hopes, opinions, beliefs and ideas.” The metaphor of “big brother” also looms large as a pointed reference to Orwell’s 1984 figures in the dissent. In contrast the concept of freedom and the ability to choose one’s own path is highlighted.
There are many other nuggets in this judgment worth discussing as a counter-point or enhancement of a pure doctrinal study of the case. It will indeed be interesting if any future SCC cases utilize this stark linguistic contrast or if it is merely a result of the impassioned differences on the SCC on this particular issue, which determined choice of language.
I must at this point acknowledge Professor Jonnette Watson-Hamilton, for whom I did some research on metaphors and language many years ago while pursuing my Masters at the University of Calgary, Faculty of Law. She introduced me to the critical theories of language involving the use of metaphors in legal decision-making – a “truly” illuminating experience! Review her articles written to access her publications involving language and metaphor.
For further information on this, start with the seminal works by cognitive linguist George Lakoff, particularly Metaphors We Live By, which Lakoff wrote with Mark Johnson. There are now multiple scholarly articles involving metaphors and linguistic techniques in legal discourse. The starting point for this is found in the articles written by Robert Cover, a fantastic legal scholar, sadly now deceased. Read his two seminal articles entitled Violence and the Word and Nomos and Narrative. I have also written a previous blog on Cover called Is Violence The Word? Additionally, I have written two previous blogs using metaphors as part of the legal analysis in Impression and Claim: Are They Both The Same? and in Blogs As Graffiti.
It is Clawbie or Canadian Law Blog Awards time again and this year I am nominating CanLII Connects. Now before I justify my choice, I want to make it perfectly clear that I am a proud contributor to CanLII Connects but this is NOT the reason why I strongly believe CanLII Connects should be recognized. Instead, it is the concept, the very idea of CanLII Connects that drives my nomination. It is the brainchild or should I say web-baby of Colin Lachance, who had a vision of an open web-based co-operative cyberspace for legal thought and innovation; a safe space in which lawyers could exchange ideas freely and without prejudice. A space unbounded by the four walls of an office, a boardroom or a courtroom where lawyers could share knowledge as well as their passion for law across Canada and the global community.
And so at the close of 2014, I tip my blog to CanLII Connects and all those bloggers who post insightful commentaries and help me and many thousands of others to understand that the rule of law is not just a compendium of static principles but is rather something more organic as they derive a deep richness from the multi-faceted perspectives of CanLII Connects.
Bravo to CanLII and to the dedicated CanLII Connects Community!
We have already discussed sections, which protect those authorized persons when administering and enforcing the law. Section 26 presents the converse situation when those so authorized step over the line and employ excessive force. In those circumstances the authorized person is no longer protected and is criminally responsible.
Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.
Except for slight grammatical changes, this section is as it appears in section 58 of the 1892 Code. Although the section clearly criminalizes the use of excess force, the section does not describe the degree with which the force must be excessive. In other words, although excessive force is prohibited exactly what constitutes such force is not outlined. It is therefore case law, which must delineate between the force authorized and the force prohibited. However, as indicated by the section, the excessiveness of the force shall be determined “according to the nature and quality of the act.” Thus, the trial judge determining an issue of excess force must be guided generally by the circumstances of the case and specifically by the character and attributes of the act of force itself.
As an aside, it is interesting to note that the phrase “nature and quality of the act” is used elsewhere in the Code as it relates to someone suffering from a mental disorder under section 16. The phrase was also used in the old iterations of rape in the Criminal Code in circumscribing when fraud vitiated consent, which was when the consent was obtained “by false and fraudulent misrepresentations as to the nature and quality of the act.” Although the actual phrase is no longer referred to under the sections for assault or sexual assault, the phrase is still used by the courts in discussing when fraud vitiates consent pursuant to s.265(3)(c). Even so, the phrase does still appear under s.159(3)(b)(i) of the Criminal Code which outlines when fraud vitiates consent in an anal intercourse offence. It should however be noted that although this section still appears in the Criminal Code, the Court of Appeal for Ontario has found the section to be of no force and effect pursuant to s.15 of the Charter. We will discuss the possible reasons for why this section is therefore still "on the books" this when we arrive at this specific section, which will happen, but will be much further down this podcast road.
But returning to s. 26, we need to ask what does the “nature and quality of the act” mean as it relates to s.26? First, the court will consider whether the decision by the authorized person to use force under the various sections protecting those who are justified in using force, such as sections 25, 25.1 and 27 to 32, is reasonable in light of the degree of force used and the circumstances surrounding the use of it. The assessment is therefore an objective one and does not consider what is going on in the mind of this particular person at the time of the events but what a reasonable authorized person aught to have done in the circumstances.
The following are some of the factors, the court might consider in assessing the reasonableness of the force used where the force is used to effect an arrest. The court may consider the nature and seriousness of the offence for which the arrest is being made. The basis for the arrest and the ensuing reasonable grounds as well as the legality of the arrest itself may be considered. Another factor may involve the reasons for detaining the person to be arrested. A further consideration is whether or not the force was required for protection or for the protection of others. The likelihood of escape and the possibility force was needed to ensure the capture of the person is another factor. Also considered may be the likelihood of the continuation of the offence if force is not used. The physical attributes of the arrestee may be a consideration. Certainly use of force training and policing standards or policies will also be a factor in determining if the force used was excessive. Included in that assessment, the trial judge may refer to escalation or de-escalation techniques as well as the likelihood that the arrestee would respond to the authorized person’s authority. Another possible consideration might be the necessity of arresting the person in the circumstances and whether reasonably there was another time and place, which would have produced a less violent result. This list is just some of the circumstances that may be considered by a trial judge. It must also be remembered that s.26 does work in tandem with those other sections authorizing force and therefore both sections are in issue and may provide direction. For example, as discussed previously, the inquiry differs if the force is intended or likely to cause death or grievous bodily harm.
It should be remembered that s. 26 not only applies to the police or peace officers but to anyone who is authorized by law to use force. This can include a private or civilian person who is not regularly employed to administer or enforce the law but is acting as an authorized person at the time in question. A person effecting a “citizen’s arrest” for example would fall under both sections 25 and 26. Another class of individuals subject to s. 26, which we will discuss later, is schoolteachers, parents or persons standing in the place of a parent who are authorized to apply force to a child who is in need of correction pursuant to s. 43 of the Criminal Code. Surgeons may also be subject to the excessive force provision if they do not perform an operation with all reasonable care and skill as required under s. 45.
The issue of excessive force is highly complex, fact driven and based on the interpretation of legal authorities. Often, the court will hear expert evidence on the reasonable use of force and the acceptable practices, policies and training in the area. In the end, however, it is the principles of proportionality, reasonableness, and necessity, which will determine whether or not the appropriate force was used in the circumstances.
In some sense this blog posting is both a book review and a legal analysis. It is a book review as this blog arises from my reading of the Daniel Kahneman’s book entitled Thinking, Fast and Slow. It is also a legal analysis as the ideas and theories arising from Kahneman’s Nobel Prize winning research form the basis of my suggestion that it is time to critique some traditional criminal law principles. In the end what this blog is about is connections and how we, as in the legal profession “we,” must be cognizant of new and innovative developments in other subject areas, in this case social sciences, in order to craft new and innovative arguments. New arguments can lead to new law and this book might just be the catalyst for this kind of change.
I will not belabour the specifics of the book nor will I give a deep analysis of it. That kind of discussion should be done in a formal setting as in a well-reasoned journal article but I will leave that to a later opportunity. Essentially, Kahneman and his research partner did a series of break through behavioural testing which turned the field of economics on its head. The two researchers, as psychologists, approached the construction of the rational Economic or Econ person in a totally different manner than the economists did previously. When I say previously, I mean the theories had been in place and used for decades. This would be, in Kahneman’s view, a good example of theory-induced blindness. In any event, Kahneman showed that the basic Econ, which was a staple figure in economic theory, was not in fact rational and at times, even down right irrational. Well, not really irrational, as the research showed there were a pattern to the behavioural responses but not the expected pattern of the Econ. Instead the Econ was really a Human – someone who made choices, often seemingly economically irrational choices, not based on the utility theory favoured by the economists but based on other more ephemeral reasons including fear, loss, and bias. What caused such a stir in the field of economics was that Kahneman and his partner could actually prove, through research data, that this was so. The rational Econ was a false promise and not the stuff upon which sound economic theory should be based. Additionally, what economic theory needed were better reference points – starting points from which the Human could become a better decision maker. In other words, the Econ was not working with a full deck or full information upon which these economic decisions or even life changing decisions should be made.
There is, of course, more to the book and the prize winning economic theory, called prospect theory, which arises out of Kahneman’s research. For instance, the first part of the book dwells on the cognitive theories of how and why we make decisions or choices. According to Kahneman we have an intuitive System 1, which thinks fast enabling us to make split second decisions and gives us speedy answers to questions like one plus one or the colour of the sky. We also have a slower or lazier System 2, which kicks in when we need to give a decision some thought such as the answer to 124 times 26 or remembering the lines of a poem we may have learned when we were young. These systems do not work totally independently. Although being aware of these two systems we can improve the correctness of our outcomes by slowing down our thought processes to allow System 2 to take over so we can improve our chances of “getting it right,” mostly we reflexively defer to our System 1, particularly when faced with exigent circumstances. This often produces acceptable outcomes as our System 1 works so fast as it is primed with crucial experiential information. However, these stored memory fragments are sometimes incorrect leading us to make bad choices and erroneous decisions. In those instances, we have no real choice but to simply go along for the ride.
So how does this lead to a critical analysis of legal principles? By extrapolating and applying these research based theories to the underlying reason for certain legal constructs, we can argue that certain unquestioned legal principles used in criminal law such as the “reasonable person” standard and the well-accepted premise that we intend the natural consequences of our actions (see my blog on the Walle case), may in fact no longer be valid. It is time, therefore, for the legal profession to break out of our theory-induced blindness and integrate, in the appropriate case, theories from other areas of the science and humanities to ensure that the law is a real reflection of society. Now, doesn’t that sound reasonable?
Any lawyer who has read Jobidon could see this coming: consent to the intentional application of force turning into a three ring circus – not a boxing ring mind you as that is “within the customary norms and rules of the game” and has “significant social value.” No, the atmosphere conjured is of course as a result of the breaking news on Jian Ghomeshi and although his situation will continue to be played out in social media, the legal community is welcoming the attention. What is the status of the law on the issue of sexual activity which is intended to and does cause injury but which is entered into by consenting adults? This is where issues of consent to assaults and sexual assaults intersect and yet the law thanks to Jobidon and JA is far from providing a bright line between the two.
There is a lawyerly adage that bad facts make bad law and perhaps the Jobidon case fits that sentiment. Jules Jobidon was charged with unlawful act manslaughter as a result of a consensual barroom brawl, which Jobidon and the deceased took outside to settle. Jobidon quickly took the upper hand and within seconds the receipient of the punches lay unconscious and subsequently died. Did the deceased consent to a fistfight? Yes, but is consent a defence or phrased differently, does the Crown need to prove lack of consent as part of the actus reus of assault. On the face, s. 265(3) of the Code does not preclude consent being given under the Jobidon circumstances but underneath the Code, “illuminating” the Code as Justice Gonthier sees it in Jobidon, is the common law. It is the common law, through English authorities, most notably the 1980 House of Lords decision in Attorney General Reference, which stands for the proposition, enunciated in Jobidon, that intentional application of force, which causes bodily harm vitiates consent on public policy grounds. This “judge-made” policy is based upon, in part, the social uselessness of brawls. Society has changed from a macho flexing of muscles and no longer views physicality as a virtue, although, as Justice Gonthier points out, we still enjoy a “socially valuable cultural product” like stunts and daredevil activities. For Justice Sopinka however, Jobidon is guilty as charged, not because the common law as the archival repository of when consent can or cannot be available on an assault charge, but because Jobidon’s actions were outside the scope of the consent given by the deceased. This social utility view versus the scope of consent view will permeate the law on sexual assault as well.
The law on sexual assault developed differently. The watershed case is of course Ewanchuk, the case that launched a number of controversies both inside the legal community and outside when Justice McClung sent his letter of protest to the National Post. Leaving that aside, the Ewanchuk case is in some respects a breath of fresh air, a case dealing head on with sexual myths and stereotypes that a woman invites sexual advances through her dress and character. Famously, the case is known as the “no means no” decision, where a woman or man who does not clearly consent to sexual activity is not consenting to sexual activity. It has shades of the exchange between Elizabeth and Mr. Collins from Pride and Prejudice wherein he suggests her refusal of his marriage proposal is designed to increase his “love by suspense” as she “secretly” means to accept him. The Ewanchuk decision makes it clear, there is no implied consent in a woman’s refusal as consent must be freely and voluntarily given not assumed or implied. In this situation, public policy considerations were required to protect the vulnerable and to realign public expectations and realities.
However, at some point the unique issues surrounding sexual assaults and the common law approach to assaults would clash. In 1992, the English House of Lords in the Brown case split on the intersection of sex and harm. In that case a number of individuals were charged with assault causing bodily harm. These men belonged to a group of homosexual sado-masochists who for a long period of time regularly met in “torture” rooms, as the House of Lords described it, “for the purpose of indulging in acts of sexual violence against one another, as a means of sexual fulfilment.” No permanent injuries were sustained and no medical treatment was sought. On occasion the sessions were videotaped for their own private viewing. None of the men involved complained to the police. The police involvement resulted from an officer “who stumbled by chance” on the videotapes. Indeed, the activity was viewed as private and consensual. The House of Lords was divided in decision on the case. the majority upheld the long held view, as enunciated by Jobidon, that there is no consent to bodily harm that is intended and caused. In the majority’s view
“appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado-masochism were only concerned with sex, as the appellants contend. In my opinion sado- masochism is not only concerned with sex. Sado-masochism is also concerned with violence… In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under ss. 47 and 20 of the 1861 Act.”
The dissent cautioned against state interference into the private lives of citizens in favour of self-autonomy and "that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large." This caution to not extend the criminal law into areas of private choice and taste is consistent with Chief Justice McLachlin’s caution in the Mabior case that “The principal objective of the criminal law is the public identification of wrongdoing qua wrongdoing which violates public order and is so blameworthy that it deserves penal sanction.”
Interestingly, the majority of my first year criminal law class agreed with the minority and likened the case to a sporting event, wherein all of the participants were aware of the “rules” beforehand and that the practices were within those enunciated rules. Again, there appears to be a tension between social utility, public interest, and the specific facts of a particular case. In the Brown case, the right facts did not produce a satisfactory result and there is an aura in the case of the criminal law overreaching into the decision making powers of an individual. Although in Justice Gonthier’s view in Jobidon “all criminal law is paternalistic,” the law is still a reflection of who we are as a society and what we stand for and cannot possibly be distilled down to “but it’s for your own good” argument. Certainly the English Law Reform Commission in a number of Consultation Papers has raised similar concerns. For further reading on the subject, read Windsor Law professor David Tanovich’s paper entitled “Criminalizing Sex At The Margins.”
Subsequent Canadian cases, at the provincial appellate level considered the Brown case with facts involving bodily harm caused during sexual activity such as in the Ontario Court of Appeal 1995 Welch case and the 2013 Zhao case. Although those cases differ in the facts, Welch was concerned with consensual sado-masochism sexual activity and the Zhao was not, both cases, relying on Jobidon, found bodily harm in the course of a consensual sexual relationship vitiated consent. However, in discussing the Welch case at paragraph 79 of the Zhao case, Justice Tulloch stated:
“Ultimately, much of the analysis in Welch is focused on the sado-masochistic nature of the circumstances of that case. I am neither persuaded that the authorities cited by the appellant nor the conclusions reached in Welch are particularly helpful to establish a generally applicable standard or threshold by which consent is vitiated in sexual assault causing bodily harm cases. Furthermore, the social utility of intimate sexual relationships is significantly different from that of consensual bar fights, as such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sexual context as suggested by the ruling in Welch.”
Justice Tulloch identifies what is wrong with Jobidon: how can the Jobidon fistfight scenario adequately provide authority in situations of consensual sexual activity that does, one would argue, produce self-satisfaction. The 2011 JA case from the Supreme Court of Canada has not clarified the law in this matter and in fact has left the door wide open. There are aspects of sexual activity resulting in bodily harm in the case but the case did not turn on this aspect but on whether an unconscious person can consent to sexual activity. Chief Justice McLachlin, relying on the two strands of authority found in Jobidon and Ewanchuk said no – consent must be of an operating mind and advance consent is not recognized in law. As for the “sleeping beauty” problem, when a spouse kisses a sleeping spouse, the law according to the chief Justice is not perfect and may result in unsatisfactory situations but there are more problems occasioned by relaxing the general rule, that there is no implied consent for sexual offences, than in permitting exceptions. Although legally we may understand the Chief Justice’s justification in reality her failure to provide a solution leaves an unsatisfactory atmosphere to the case. In many ways, Justice Fish’s dissent, which echoes Justice Sopinka in Jobidon, is attractive: it is the scope of the conduct which matters. This issue will clearly be at the forefront of a future Supreme Court of Canada decision.
Returning to Jian Ghomeshi, leaving aside the media tumult and without judging the various versions of the actual events, we should not be focusing on the conduct but on the scope of the conduct – was it beyond the scope of the consent given, not implied or assumed, but given in the context? This, I would suggest, would take us beyond the archives of the common law and into the realities of the modern age that in many respects is beyond myths and stereotypes and is a society where women, who are not in vulnerable situations, can make choices – consensual choices – to live their life on their own terms.
In this episode we will discuss what is known as the law enforcement justification provisions, proclaimed in force on February 1, 2002, as found under a compendium of sections from 25.1 to 25.4. These sections acknowledge certain police investigatory practices will involve the commission of offences, particularly where officers operate in a covert or undercover capacity. The most well known investigatory technique subject to these sections would be the “Mr. Big” investigations, which have attracted Supreme Court of Canada notice through the recent cases of Hart and Mack. For a further discussion of the many issues arising in such investigations, I highly recommend Mr. Big: Exposing Undercover Investigations in Canada by Kouri Keenan and Joan Brockman, who are from the excellent criminology faculty at Simon Fraser University.
The sections themselves were created in response to the 1999 Supreme Court of Canada decision in Campbell, wherein the court found that police were not immune from criminal liability as a result of unlawful conduct even if it was executed in good faith and to further a criminal investigation. The Court thus called upon Parliament to legislate such protection, which it did under these sections.
Although these sections make provision for investigators to commit offences in the course of their investigatory duties, the sections also create a mechanism for parliamentary and civilian oversight of such exceptional investigatory techniques. Thus, s. 25.1 contemplates a “competent authority” such as the Federal Minister of Public Safety and Emergency Preparedness or, the applicable provincial equivalents such as in the case of Alberta, the Solicitor General and Minister of Justice, who has the authority to designate “public officers” to act in these investigatory capacities. In addition to this designation, there must be civilian oversight or a “public authority”, in accordance with 25.1(3.1) “composed of persons who are not peace officers that may review the public officer’s conduct.” Furthermore, the designating Minister, under s. 25.1(4) must designate such public officers upon the advice of a “senior official,” who is a member of a law enforcement agency and has been so designated to act as a senior official by the Minister. In some ways, this designation process is rather self-fulfilling or circular considering the actual ministerial official who is receiving the advice chooses or designates the advising official. Upon receiving the senior official’s advice, the Minister must make the public officer designation on the basis of “law enforcement generally” rather on the basis of a specific law enforcement activity or investigation. Therefore, such designation must be viewed in the broader context of law enforcement, according to 25.1(4), and not done on a case-by-case basis. As with many ministerial decisions, this is the only articulated criterion for the designation, which leaves such designation open to broad discretion.
The senior official or advisor to the Minister has broader powers permitting the temporary designation of a public officer without the competent authority, under s. 25.1(6), under exigent circumstances, wherein it is not feasible to have the competent authority or Minister perform the designation and where the public officer would be justified in the circumstances in acting contrary to the Criminal Code. The circumstances of such a designation are set out under 25.1(7) and the justification for such conduct as found under 25.1(8), being that the senior official believes on reasonable grounds that “the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.” In such exigent circumstances the senior official must notify the Minister of this action “without delay.” This requirement, I would suggest, seems rather contradictory. The purpose of the notification would be to ensure that such actions are not taken without the knowledge of the Minister but in order to effect such awareness, notification would only be fulfilled if in fact the Minister receives the missive and reads it. If the Minister is available to review such a document, one wonders why the Minister is not in the position of making the actual decision, considering the availability of instantaneous electronic communication.
In any event, there are further restrictions on the public officer’s ability and authority to act outside of the Criminal Code. Under subsection (9), further restrictions pertain to instances where the public officer is involved in activity that would be likely to result in loss of or serious damage to property or where a person is acting under the direction of the public officer in accordance with subsection (10). In these specific circumstances, the public officer must not only comply with the circumstances of justification under subsection (8) but must also comply with the further justifications listed under subsection (9). Thus, the public officer must also be personally authorized in writing to act or if such written authorization is not feasible, the officer must believe on reasonable grounds that the acts are necessary to “preserve the life or safety of any person, prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or prevent the imminent loss or destruction of evidence of an indictable offence.” This broad authority and justification to commit criminal offences is tempered by the limitation to the section under subsection (11) that there is no justification for “the intentional or criminally negligent causing of death or bodily harm to another person; the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or conduct that would violate the sexual integrity of an individual.” Section 25.1 also reiterates that all other protections to a police officer in the Code are available and that despite the extraordinary powers under the section, officers must still comply with the rules of evidence.
When a public officer does in fact commit an offence or direct others to do so in accordance with s.25.1, there are further oversight requirements such as under s.25.2, the public officer must file a written report with the senior official as soon as feasible after the commission of the said acts. An annual report is compiled by the competent authority or Minister and made public regarding the previous yearly activities outlining the number of emergency designations made by senior officials’ and the number of written authorizations made by the senior officials under 25.1(9)(a), the number of offences committed by officers as a result, the nature of the conduct being investigated and the nature of the acts committed by the designated officers. However, such report must still preserve the confidentiality, must not compromise ongoing investigations, must not prejudice an ongoing legal proceeding and must generally be not contrary to the public interest. Such annual reports are available online.
For instance, the RCMP publishes such reports through the Public Safety website. Although the 2012 Report is available online, the 2013 Report has not as yet been published most likely as the report must be first tabled in the House of Commons and the Senate for approval. However, provincial reports are available such as the 2013 report from British Columbia. Alberta does not publish a stand-alone report but publishes the information as part of a larger report on the state of the Ministry as a whole. This means the information is not clearly accessible but is found under the heading in the report entitled “Annual Report Extracts and Other Statutory Reports.” The actual 2013 “report” consists of three lines indicating three instances of illegal conduct committed while investigating “homicide and missing persons” and resulted in “minor damage to a vehicle.”
In the previous 2012 Report there were five instances of illegal conduct wherein the officers created the “illusion” of a break in, committed property damage and participated in activities of a criminal organization. This description creates more questions than answers as it is not a crime to create an “illusion” of a crime and it is only those acts contrary to the Criminal Code, which must be reported. If in fact a crime was committed by this “illusion,” for example, if the conduct amounted to a public mischief, then the report should specify the exact crime as opposed to the circumstances in which it was done. Of course, the sections do not provide immunity for certain criminal acts, no matter in what circumstances they are committed, such as an obstruct justice. Therefore, the information needed to provide the appropriate oversight for this activity must be detailed in a transparent and accountable fashion. Similarly, the fact that the officers participated in activities of a criminal organization is unclear considering some of those activities could no doubt be specifically identified as commission of crimes. Compare this to the BC Report, which although brief, contains much more information, such as the number of times the emergency designations were used. Certainly, none of these reports have any information on how the oversight requirements of the provisions, as in the review by the “public authority” or civilian oversight committee, are fulfilled. Considering the Hart and Mack decisions and the Courts concern with the use of investigative techniques, which mimic criminal organizations, such reporting should be reconsidered by government authorities. Additionally, in light of the importance of this oversight function and the fact there is no prior judicial authorization required, the published information should be standardized by the Federal Government and subject to civilian oversight scrutiny.
As with electronic interceptions of private communications, under s. 25.4, within a year after committing the justified offence, the senior officer, who receives the public officer’s written report, must notify “in writing any person whose property was lost or seriously damaged as a result of the act or omission” unless such notification would compromise or hinder an investigation, compromise the identity of an officer or informant, endanger the life or safety of another, prejudice a legal proceeding or be contrary to the public interest. Of possible concern is the exception to notify for reasons of prejudicing a legal proceeding as such prejudice may be in the eye of the beholder. In other words, such non-disclosure may prejudice the accused’s trial, even though disclosure would prejudice the prosecutor’s case. It seems more appropriate, in matters that are before the court, for a judicial authority to balance the prejudicial effects in order to determine whether or not notice should be given. This would be more consistent with Charter rights of disclosure of the Crown’s case to the defence.
Finally, it should be noted that there are provisions, which require a legislative review of these sections within three years of the sections coming into force. The first report of such review was presented in 2006. One of the concerns raised in the report was the lack of prior judicial authorization for some of the activity. There are other concerns raised but the Committee “lacked sufficient evidence to come to any firm conclusions” and the sections remained unchanged. Indeed the report was entitled “interim” report, although I was unable to locate a “final” one.
It is important to note the paucity of information on the civilian oversight aspect of these sections. There is no reporting of or information pertaining to the composition of the “public authority” contemplated by these sections and the findings of this oversight committee. There was an interesting paper presented at CACOLE conference, which is the Canadian Association for Civilian Oversight of Law Enforcement, in 2002 after these sections were proclaimed in force. The paper presents an excellent overview of the proposed regime and the rationale as well as discussion of similar regimes in other countries such as England and Australia. The impact on civilian oversight was minimal, meaning that there were few or no complaints arising out of the sections. However, the paper does propose some recommendations to the oversight bodies to help reinforce the import of the sections by establishing a code of conduct or policies relating to good faith of police officers and the conduct required by police officers who are authorized to use such extraordinary powers. Certainly, this kind of oversight is being done by individual boards and commissions but is not nationally mandated. Thus, another recommendation is for the Federal Government to integrate the oversight of these activities into the relevant civilian oversight of the participating law enforcement agencies. Certainly this would strengthen public confidence in the system and provide transparency in a rather obscure area of law enforcement. Of note, is the Australian regime, which uses legislation similar to our criminal code provisions, but has added protections involving stringent code of conduct for officers and the use of prior judicial authorization. Certainly the Australian experience involves a far more robust public auditing and monitoring system than here in Canada. Of particular note is the Australian Annual Report on such activities, known as “controlled investigations,” which is far more detailed than the reporting seen in Canada.
It may very well be that these changes will not happen until and unless the Courts become involved. To date there have been some Charter applications to declare the sections unconstitutional. These applications have been dismissed at the trial level and such arguments have not been made at the appellate court level. The Honourable Mr. Justice Curtis of the British Columbia Supreme Court considered Charter arguments relating to these sections in the Lising case. In that decision, Justice Curtis found the sections were not contrary to s. 7 of the Charter as the sections were not constitutionally overbroad or vague. On the further s. 7 issue of whether or not the lack of prior judicial authorization renders the sections unconstitutional, Justice Curtis ruled that in the extraordinary circumstances of section 25.1, prior judicial authorization is not warranted and in fact impede the intention of the sections. As Justice Curtis stated “The ultimate goal of Parliament in enacting s. 25.1 is the protection of everyone’s right to “life, liberty and security of the person”. This line of reasoning may presage similar arguments, which may be made on the anticipated federal government anti-terrorism efforts that will give CSIS enhanced powers of investigation.
It will be useful to monitor the status of these provisions considering the enhanced national security concerns and the impact of the Hart and Mack cases on the “reverse sting” or “Mr. Big” operations. Yet again it will be the courts who will need to balance the rights of the individual to be free of state interference with the collective right to live in a secure and safe society.
Sometime ago, I wrote three blogs on the assisted suicide debate in light of the Rodriguez case and the soon to be argued before the Supreme Court of Canada, Carter case. In light of the hearing scheduled for Wednesday of this week, I am gathering these prior postings below as a primer to the issue and including a fourth blog relating to the Criminal Code prohibition of consenting to one's own death:
Assisted Suicide Appeal - the Carter case
In the previous episode, I introduced section 25 of the Criminal Code as a protective measure for those persons enforcing or administering the law and those persons assisting in such activities. Under subsection (1), the section permits the use of force and justifies it if the authorized person acts on “reasonable grounds” and the authorized person uses no more force than is necessary to affect his purpose. Thus, when an authorized person steps outside this reasonable and necessary protection, the force would be considered excessive. However, this justification is qualified under subsection (3) when the force used is “intended or likely to cause death or grievous bodily harm.”
Although, subsection (3) discusses the scenario when the authorized person is not protected under s. 25, in actuality, the subsection establishes when an authorized person would be justified in using, for the want of a better term, “deadly” force. Such force is justified if the authorized person “believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.” However, subsection (3) adds a qualifier to subsection (1), where the force is intended to cause death or grievous bodily harm. In those heightened circumstances not only must the force be reasonable and necessary for the enforcement and administration of the law but it must also be used in the context of a reasonable belief on the part of the authorized person that using such force was necessary to protect himself or others under his protection from death or grievous bodily harm. This qualifier is itself subject to (4) and (5). Thus, under subsection (4) such force is justified where the authorized person is arresting someone in circumstances outlined under the subsection. Further, such force is justified against an inmate who is escaping from the penitentiary if the authorized person believes on reasonable grounds that any of the inmates pose a threat of death or grievous bodily harm and the escape cannot be reasonably prevented by less violent means.
There is a large amount of case law on whether the authorized person falls outside of this section and therefore the force is excessive and not justified. The courts have tended to interpret this section generously and to the benefit of the authorized person using the force. For instance, the court recognizes that in the determination of whether or not the force used was reasonable and necessary, the court must not assess the situation through the “lens of hindsight” but must take into account the immediacy of the decision in light of the heightened emotional and stressful circumstances typically surrounding the event. However, the issue of excessive force is a nebulous one driven by factual considerations. Interestingly, though the court is cautious not to be “a Monday morning quarterback,” many of these cases involve expert evidence not only on appropriate use of force training but also on the ultimate issue as to whether the force used in the case was in fact excessive. By elevating these cases to almost a scientific interpretation of events, the admonishment not to view the cases through the “lens of hindsight” seems to obscure rather than elucidate. A case-by –case determination, applying the relevant legal principles, seems like a more judicious approach.
I don’t intend to go through the case law on this issue in this blog but I would like to point out how the use of force as authorized under this section has impacted areas both outside of criminal law and in criminal law but in a non-traditional basis. The issue of use of force has greatly impacted tort law and civil litigation against police officer and police services. Some of these cases relate, not just to individual officers but also to the concept of use of force in the tactical decisions made by the police. Thus, in the Alberta Court of Appeal case of Webster v. Wasylyshen from 2007, the court considered whether or not the use of the tactical team in the search of the plaintiffs’ home amounted to excessive force. The Court, in that case, found the use of the team was not an excessive use of force “given the need for public protection in the circumstances known to the police.” Excessive use of force by the police is also an issue, which tangentially finds relevance in certain Charter cases where a violation of Charter rights requires an exclusion of evidence under s. 24(2) as the officers’ excessive use of force shows bad faith on the part of the police resulting in the administration of justice being brought into disrepute. Such an argument was accepted in the dissenting decision of the Supreme Court of Canada 2010 Cornell case. Further, excessive use of force has been used as a mitigating factor on sentence, where an offender is being sentenced for offences but in which the officers were found to be using excessive force.
Although some form of section 25 has been in the Criminal Code since its inception, the section has continued to be tested by the courts in many differing areas of law. The issues raised under this section will no doubt give rise to further advancements in the test to be used in determining excessive use of force and the circumstances in which the court will make such a finding as the world moves into the digital age and the image finds prominence in the courtroom setting. Instead of “dueling” use of force experts the courts will be faced with “dueling” videotapes emanating from citizen cell phones and officers body worn cameras. These new evidentiary tools will, I suggest, push the evidentiary limits of the law in this area and will, I suspect, provide a whole new area of case law in this area.
What occurred in the Mian case is not unusual: the Appellate panel hearing an appeal seizes on an issue, one not raised in the Appellant’s Factum, and raises it during the course of argument. indeed such an occurrence is a sign that the panel hearing the appeal has read the material and is thinking about the case or at least they have their own ideas about the case. Admittedly, many years ago I won a difficult conviction appeal, based on the near impossible ground of errors in the credibility assessment, when the then Chief Justice Dubin of the Court of Appeal for Ontario seized on a construction of the facts he found absurd, the appeal was thus allowed on the basis of an unreasonable verdict and an acquittal entered. However, there is, as the Mian case warns, a limit to appellate interference, which is very much connected to the concept of judicial deference but also ultimately to the “risk of injustice” should the court not act on its own accord.
The ultimate conclusion should an appellate court not heed this warning is the possibility that the court’s best intentions lead to a reasonable apprehension of bias. Such a scenario, that an appellate court shows bias, is rare indeed. Typically, it is the appellate court considering whether or not the trial judge exhibited the bias, not the appellate court itself falling into the aura of unreasonableness. Although, the SCC did not expand on this possibility, the test in such a scenario, per Justice Cory’s decision in the 1997 RDS case, would require a consideration of “whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias.”
Certainly, one can imagine a situation in which an appellate court ‘s zeal for an issue, not raised by either parties to the appeal – perhaps for good strategic reasons – could lead to such an apprehended bias. As stated by the then Lord Chief Justice of England, Lord Hewart, in the 1924 English case of R v SUSSEX JUSTICES ex p McCARTHY, “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Of course “justice” here in the Mian case is balancing on a fine line as justice must not only be seen to be done in the scope of the appellate review but justice must also be done in the very decision the appellate court makes. In other words, to refer to another aphorism, albeit it a crass one, the court may be “damned if they do and damned if they don’t.” Thus, a reasonable apprehension of justice may arise by the court’s interference in the appellate process by raising a new issue on their own volition, yet if they do not do so, they run the “risk of injustice” should the issue not be independently raised.
In the WG case, the SCC in 1999 did in fact consider possible bias at the appellate court level – in that case on the part of the Newfoundland Court of Appeal. The issue was one of jurisdiction and whether or not the appellate court had the inherent jurisdiction to raise an issue pertaining to the sentence imposed, when the appeal was purely a conviction appeal and neither parties raised the issue of fitness of sentence. To this, the then Chief Justice Lamer, speaking on behalf of the majority, responded with a resounding “no.” However, Chief Justice Lamer did expand on the notion of whether or not, if the court cannot go it alone so to speak, could the court “invite” counsel to raise the issue. On this subsidiary issue the Chief Justice was also clear in stating that such an “invitation” should not be given as the appellate court should not go beyond raising questions during oral argument. Even an independent reference to the issue should not appear in any appellate reasons, although an innocuous comment by the court indicating that the issue of sentence was not raised by either parties on appeal, may be appropriate.
This “approach” by the SCC in this case acknowledges the deference to counsel and counsel’s strategic or “tactical” reasons for raising or not raising an issue on appeal. In the view of the Chief Justice, this approach also “avoids an apprehension of bias.” which the Newfoundland Court of Appeal failed to do when they expressed “discomfort” and “unease” with the sentencing process in the appellate reasons on conviction. In the WG case, the appellate court went further and ordered the parties back to argue the fitness of sentence. Thus, the apprehension of bias crystallized into a very real bias. Interestingly, in this case, the appellate court’s concern was with the harshness of the sentence and thus, presumably, would have shown a bias against the Crown, not the offender.
Finally, take note of the context of Mian, which called out for the SCC to “call out” the appellate court. Mr Mian was acquitted at trial on the basis of violations of his section 10(a) and (b) rights under the Charter. It is therefore in the context of an acquittal that the Court of Appeal of Alberta raised the new appellate issue of defence counsel’s cross-examination as a point of departure for the appellate review. This “new” issue, in the view of the SCC, could not be tied to the trial judge’s decision to acquit and therefore was not a situation where the appellate court was facing that fine balance, I previously mentioned. To add to the list of aphorisms, perhaps, indeed, “context is everything.”
As a result of the release of the Iacobucci Report on the Toronto Police Service’s response to people in crisis precipitated partly by the Sammy Yatim incident and the recent Michael Brown incident in Ferguson, never before has the issue of necessary use of force in law enforcement been so prominent in the public forum. Although much of the present media focus has been around body worn cameras for police to monitor and record police practice relating to the use of force, the Iacobucci Report actually goes further and recommends a “zero death” policy, meaning “no death of the subject, no death of the officer involved or of any member of the public.” Whether or not that is possible is a debate for another day but for our purposes, we need to face the reality that force can be used and is authorized under section 25 of the Criminal Code.
We should first note the section descriptor – “Protection of Persons Acting Under Authority.” The section therefore is not a “use of force” section as we tend to describe it but a section focused on protection of those administering or enforcing the law. The protection afforded by the section precludes attaching criminal liability to the authorized person’s actions. Also note that the section covers all “persons” who are acting under authority and not merely the police. Thus, private citizens benefit from this protection as well. In fact, let’s look at the first part of s.25(1) as it lists the “persons” so protected as follows:
Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
As is with most sections in the Code, the section is both narrow and broad scope. It is narrow as the persons protected must be acting under authority or as required by law. It is broad as the act can be “anything.” Furthermore, the person so authorized, as already mentioned, may be a private citizen or a law enforcement officer as per the definition of “peace officer” and “public officer” under the s.2 definitions. The section also includes those persons aiding law enforcement and those individuals acting “by virtue of his office,” meaning a person who is acting in a position of a public nature. Now, lets look at the complete subsection 1:
Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Thus, the protection against imposing criminal liability is limited and only protects the actor if he or she “acts on reasonable grounds.” If the person does act on reasonable grounds then he or she is “justified” in his authorized actions and “in using as much force as is necessary” for effecting that purpose. This section outlines a common law defence of justification. I have discussed justifications in previous blogs and podcasts but I will provide a refresher. Justifications (and excuses) are defences, which are available after the essential elements of a crime, both the prohibited act and the criminal intention, have been proven. Thus, these defences are a concession to human frailty and a recognition that people are, well “human,” and may act contrary to the law in special circumstances. These special circumstances usually involve exigent circumstances whereby the person has no choice but to act in a manner inconsistent with the law. In the case of justifications, which are defences of the person and property, the offender, by raising the defence, is challenging the “wrongfulness” of the act. In other words, the act is a crime in name only as the circumstances require that the offender be absolved of any criminal responsibility. Thus, the conduct is not wrong as the offender is justified in using force. Of course, flowing from this argument is the requirement in every justification that the force applied be no more than necessary to repel the perceived harm. This brings us full circle to this section as a “use of force” section and the emphasis on whether or not the force was “excessive” in the circumstances.
It is useful to compare the wording of subsection (1) to the old defence of the person sections. I say, old, as the previous sections 34 to 42 were repealed and replaced by the new sections 34 and 35. In the old section 34, which provided for self-defence against an uprovoked assault where death or grievous bodily harm is not intended, an accused was justified in using force that is “no more than is necessary” to defend himself. As you can appreciate, self defence for a non-authorized person is restricted and the admonishment is to minimize the use of force to what is only required. In contrast section 25 is permissive as the authorized administrator of the law is permitted to use as much force as is required to fulfill his duty. The new section 34 does not use the same language but instead requires that the act be “reasonable in the circumstances.” The “nature and proportionality” of that response, under the new section, is only one factor in determining the reasonableness of the act in the circumstances of the case. In contrast, section 25 only offers a list of factors in determining the reasonableness of the authorized person’s actions, where the force is “intended or likely to cause death or grievous bodily harm.”
Another similar section, which protects persons in authority, is section 43 concerning the correction of a child. In that section, a schoolteacher, a parent or a person standing in place of a parent is justified in using force to correct a child if the force “does not exceed what is necessary under the circumstances.” Again, this section appears to restrict as oppose to permit. This section does not contain a list of factors in considering the necessity of the actions.
The history of the section also sheds some light on the protection afforded by the section. Originally, the precursor to section 25 covered a number of sections. For example the present s. 25 not only applies to an arrest but also refers to the use of force in executing a warrant, in incarcerating a sentenced offender and in preventing an escape from a penitentiary. In fact, historically, these scenarios were part of the use of force protection but were found in separate sections. For example, in the original 1892 Code under Part II “Matters of Justifications or Excuse,” arguably similar subject matter is covered in the multiple sections from 15 to 44, which comprise over half of the sections found under that Part. There were some changes by the 1905 Code but major changes, as in the compression of the bulk of these sections (essentially sections 15 to 37 from the 1892 version), did not come until the numerous amendments in the 1950s, which resulted in major changes to the 1953-54 Code. It is in this version that the various sections were combined and re-enacted as section 25.
How does the present iteration compare with the 1950s version? The first part of the present section, under (1) to (3), is substantially identical to the version used half a century ago. In other words, no changes have been made to the essential elements of this legal protection. However, significant changes were made to the latter part of the section under subsections (4) and (5) as a result of the 1994 amendments to the Code. Those changes brought in the list of “factors” to assist in the determination of the justifiability of using force “ that is intended or is likely to cause death or grievous bodily harm to a person to be arrested.” In the next podcast we will look at these changes more closely as well as the general issue of excessive use of force under the section.
In the previous podcast we tackled the possibilities but in this podcast we will discuss the impossibilities. Section 24 of the Criminal Code pertains to attempts to commit an offence in an “attempt” to clarify what it means under our criminal law to commit an attempt of a crime. The difficulty with an attempt crime can be traced back to the essential elements of a crime and to the reluctance of the criminal law to attach liability to “evil thoughts.” Thus, in criminal law is the requirement that for a crime to be committed there must be both a prohibited act or actus reus and a criminal intent or mens rea as highlighted by the Latin maxim actus non facit reum, nisi mens sit rea, which translates to “there is no guilty act, without a guilty mind.” Not only must these two elements be present for a crime but they must also coincide.
A good example is the entertaining 1968 UK case of Fagan v Metropolitan Police Force in which Fagan accidentally rolled onto a police officer’s foot but once he realized he had done so, he swore at the police officer and turned off his car. After a few agonizing moments, Fagan turned on his car and rolled off of the officer’s foot. Fagan was charged and convicted of assault police. On appeal, Fagan tried to argue that there was no assault in law as his criminal intent or mens rea did not manifest itself until after the prohibited act or actus reus of rolling onto the officer’s foot. The House of Lords found this argument too narrow and explained that the prohibited act can be a continuing action and indeed in Fagan’s case they found that from the time Fagan rolled onto the foot to the time he subsequently rolled off was one continuing transaction, during which Fagan formed the criminal intent.
So what does this great case narrative have to do with attempts? In the case of attempts it becomes very difficult to know when the actus reus and the mens rea coincide as the prohibited act is a subtle one and falls short of the actual criminal act. Indeed, attempts are known as incomplete or inchoate (not fully formed) crimes. There are other crimes, which fall under this incomplete or unfulfilled category such as counseling to commit a crime not committed under s. 464 and conspiracy under s. 465. The issue then is identifying when an act of attempt occurs as it is not the completed act and yet it is also not the mere thinking of the act as that would criminalize mere evil intentions. Thus, an attempt takes place before the completion of the intended crime but the Courts must decide at what point the attempt is complete and criminal liability will attach. Something more is required and section 24 instructs us on how that “something more” is determined in a criminal case.
Section 24 has two subsections and reads as follows:
24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
Other than s. 463, which we will get to much much later and deals with the punishment for an attempt, s. 24 is the only section in the Code dealing with attempts. The difficulty is that this section doesn’t exactly tell us what it means to commit an attempt of an offence. The section does however give some legal clues, which the courts have then used together with common law interpretations of attempts to fill in the doctrinal meaning of “attempt.” From subsection (2), and from case law, we can say that an attempt is complete when the accused person’s actions go beyond “mere preparation.” This usually means the next step done with the intent to commit the crime, after preparation is complete. There also must be proximity in time between the act and the intention.
Who decides when preparation is complete? Subsection 2 tells us that it is the trial judge, who determines this issue as a question of law. Therefore, if a jury tries the matter, the trial judge will instruct the jury on this issue. The jury, as triers of fact, will then apply the legal principles to the facts to determine if the accused is guilty or not guilty of the attempt.
Not only does the prohibited act for an attempt require specific findings based in law but the intention required for an attempt is specific as well. The mens rea required for an attempt is the mens rea required for the completed offence. But in the case of attempt murder, the intention required is the highest level of subjective mens rea under s.229(a)(i), intention to kill, and not the slightly relaxed intention under s. 229(a)(ii).
I am now going to add my own narrative to this issue by relating the circumstances of the first case I did as a lawyer. I was called to the Bar in March and within the week, I was representing a client charged with an attempt break and enter. Certainly, one can envision an attempt break and enter – for example here are the facts from the 1986 Alberta Court of Appeal Gochanour case wherein a homeowner was awakened by noises at her living room window and when she looked out the window she saw the exterior screen was ripped open and someone was running from her residence. In my client’s case, the allegation was that the client, who was under the influence of alcohol at the time, was found in a fairly upscale neighbourhood with a stick in his hand. The police found scratches around the lock of a front door of a nearby house. The client was discharged at the preliminary hearing but as we can see from s.24(1), not on the basis of impossibility – as it is impossible to open a locked door with a stick – but because a properly instructed jury acting reasonably could find no evidence that the client used the stick for the purpose of committing a break and enter of a residence.
Impossibility is therefore not a defence to an attempt and therefore one cannot argue that because the completed offence was not possible, the accused must be acquitted of the attempt to commit the impossible offence. This proposition holds true whether or not the offence was legally or factually possible. But, as we will discover this does not necessarily hold true, for practical purposes, for every charge.
Let me wrap up the discussion of section 24 by offering some thought-provoking examples. A pickpocket who attempts to steal from an empty pocket is still liable to be charged for an attempt theft. Although this is legally fair, the question may be is it morally right? Should someone in that position face a possible criminal record and/or jail?
Here are some offences in which one may not be able to be charged with an attempt – even though according to s. 24 charges are possible. It is difficult to conceive of an attempt to commit a criminal negligence under s.219 – although this may be a too simplistic conundrum - it is hard to imagine how someone can attempt to be negligent. It is also difficult to conceive an attempt to be found in a common bawdy house according to s. 201(2)(a). How can someone attempt to be found in a place as required by the section? We can also apply this concept outside of the Criminal Code and to the quasi-criminal regulatory field. Can someone attempt to speed? Can someone attempt to commit an absolute liability offence, which requires no intention at all? Or in the regulatory field, can the defence argue that attempt charges are indeed not possible as they would be inconsistent with the spirit and purpose of those regulatory acts or that pursuant to, the enabling provincial statutes such a concept is inconsistent with the Act. For example, the defence could rely on s. 3 of the Provincial Offences Procedure Act or for federal acts s. 5 of the Contraventions Act, which provide for the application of the Criminal Code to regulatory offences as long as such sections are not inconsistent with the regulatory Acts. Of course, the contrary argument might be that those regulatory statutes are procedural while the concept of an attempt is a substantive issue. What has been made clear by case law is that someone cannot be charged with an attempt to commit an incomplete crime such as mentioned earlier in this podcast – counseling to commit a crime not completed and a conspiracy. So in the end, perhaps there is a defence to the impossible!
Upon review of the newest Supreme Court of Canada case, the much-anticipated Hart case on the admissibility of confessions resulting from Mr. Big investigations, it is worthwhile to return to the basics. Certainly Mr. Justice Moldaver, in his majority decision, did when he concluded that in the first prong of the applicable evidentiary test is the judicial weighing of the probative value of the evidence against the prejudicial effect. Although Justice Moldaver returns to the 1981 Rothman case as a basis for this “old school” rule, the evidential principle comes from the 1971 Wray case.
John Wray was charged with what was then called non-capital murder – a capital murder was punishable by death and at that time was reserved for the killing of on-duty police officers and prison guards. The victim was shot during the course of a robbery and there were no witnesses to the actual shooting. It was only through the police investigation, namely a lengthy police questioning, that John Wray ultimately signed a statement indicating where he disposed of the rifle used to shoot the victim. The rifle was found in the place so indicated and Wray was charged. At trial, after a voir dire on the admissibility of Wray’s statement, the trial judge ruled the statement inadmissible as it was not voluntarily given. This ruling was not the subject of the subsequent appeals. The issue on appeal was the trial judge’s further ruling that Wray’s involvement in the finding of the rifle was inadmissible as well. The Ontario Court of Appeal unanimously upheld the trial judge’s decision. The majority of the Supreme Court of Canada, with Mr. Justice Martland writing the decision, allowed the appeal and sent the matter back for a new trial.
Although this is a case where the evidence was found to be admissible, it is the principles enunciated in this case which impacted the manner in which trial judge’s viewed admissibility of evidence thereafter. Now, it must be remembered that this case is pre-Charter and yes, there is such an animal. It should also be remembered – and I will not try to sound as if I am nagging – that there are important admissibility issues to consider separate from the usual Charter based arguments. The first consideration when faced with a confession in a case is to review the voluntariness of the statement to ensure the statement was given freely and without hope or advantage. So, although Wary is certainly pre-Charter and if determined today, the analysis under the Charter lens would no doubt differ, the case started a line of reasoning, which can be traced to the Hart decision we have today. What is also fascinating about this line of reasoning is to see how this discretionary evidential principle of exclusion or admissibility – whichever way you want to view it – starts as a very restrictive and rarely to be exercised act to the pro forma requirement of a “new common law rule” as articulated by Justice Moldaver in Hart.
Justice Martland’s reluctance to “approve” of a discretionary exclusion of evidence is palpable. Yet, the English authorities require it. He clarifies the difference between the “unfortunate” effect on the accused of relevant admissible evidence, which would be prejudicial to the accused and the “allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.” Of special note are the adjectives or qualifiers used by Justice Martland when he finally articlulated the discretion as arising “where the admission of evidence, though legally admissible, would operate unfairly, because, as stated in Noor Mohamed, it had trivial probative value, but was highly prejudicial.” Notice the emphasis added. The added practical difficulty for Justice Martland with excluding evidence on the basis of “unfairness” was the interpretation of that word. In Martland’s view, therefore, the discretionary exclusion of relevant and probative evidence should be “very limited.” This restrictive view of the discretion was reiterated in the Hogan case, in which Justice Martland was a member of the majority.
Within a decade of the Wray judgment, as per the Rothman case, the limited discretion reluctantly approved of by Justice Martland is referred to as an “exclusionary rule” by the then, Justice Lamer, concurring with the majority. Interestingly, Justice Lamer refers to the Wray principle, while Justice Martland writing for the majority does not. Rothman sets out the test to determine whether or not a person taking a statement from an accused is a “person in authority” and broadened the circumstances in which a statement may not have been given freely and voluntarily.
Post Rothamn, the evidential world changed as common law evidential rules become imbued with Charter values. But this transition was not easily done or easily accepted. In Corbett, the Supreme Court of Canada struggled with the constitutionality of s. 12 of the Canada Evidence Act, which permitted the questioning of any witness, including the accused person, on his or her criminal convictions. Although the decision is unanimous in the sense that all six members agreed that s. 12 of the CEA was constitutional and recognized the trial judge, under common law, had the discretion to exclude admissible evidence (however Justices McIntyre and Le Dain did not see this discretion as permitting a trial judge to circumvent a clear legislative directive as found in s.12), there was disagreement over the exercise of that discretion. Thus, it is in Corbett, where Justice Martland’s reticent discretionary rule becomes a fully recognizable discretion in the trial judge to exclude admissible, yet prejudicial evidence. But Corbett, although not mentioned in the Hart case, seems to raise similar concerns. Through the exclusionary discretion of the trial judge, together with other evidential rules that limit the use to be made of the evidence, the law protects the right of the accused to a fair trial, which includes, as stated by the then Chief Justice Dickson, the right “not to be convicted except on evidence directly relevant to the charge in question.” This protection “strives to avoid the risk of prejudicing an accused’s trial.” These words are echoed by Justice Moldaver in the Hart case as he speaks of the “risks inherent in the Mr. Big confessions,” which require a legal response in order to protect “accused persons, and the justice system as a whole” from “abusive state conduct.” It is, therefore, Martland’s reluctant rule, the seemingly rare discretion, which blossomed under the Charter lens, which the Hart Court turns to as the legal protection needed. Yes, we have come a long way since Wray and there is no looking back.
One of the interesting learning moments for me, resulting from this Criminal Code podcast, is the realization that the criminal law has changed in the past three decades, which, in common law time, is a fairly short period of time. Certainly, this section, which we will consider today, s. 23.1 of the Criminal Code, is an example of how the Code can and does change the practice of criminal law. To give perspective, s. 23.1 was added to the Code in the 1985 amendments, while I was in law school. I recall those amendments mostly because I had to “re-learn” the section numbers of the Criminal Code. I particularly recall how the assault section, s. 244, was changed to the section number we use today – s. 265 - and my fear that I would never be able to remember the new section numbers. Considering I needed to look up what the old section number was to write this blog, I wonder how I could have been so worried. What I was not too concerned with at the time was the change caused by s. 23.1, which in hindsight was certainly a much bigger deal than the mere section number changes.
Section 23.1 reads as follows:
For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.
Therefore, it is possible for an accused to be convicted of counseling a crime even if the person actually committing the crime is not guilty or cannot be tried and/or convicted. For example, an adult who involves children under twelve in the drug trade can still be convicted as a party even though the children, who are actually committing the crime, cannot be convicted, according to s. 13 Code, as they are statutorily debarred on the basis of age. For more on section 13 of the Code, read or listen to my previous podcast. Additionally, even though an accused who commits a counseled crime while under duress would have a valid legal defence, the person who counseled such an offence under s. 22, may still be convicted. It is also possible for an accused to be convicted as an accessory after the fact even if the fugitive offender is ultimately acquitted of the crime from which he or she was escaping. I will return to accessory in a moment as this particular mode of crime has been viewed as different than the other modes and has caused more legal controversy despite s. 23.1.
Based on the above, particularly the “Oliver Twist” example, it does make sense that the Crown be able to prosecute secondary participants on a separate basis than the main offenders. However, prior to 1985 this was not the case. This did not mean that a person involved in a crime, in circumstances where they might be a party or a counselor or an accessory, could not be charged. Indeed, prior to these amendments the charge of conspiracy was usually laid against the secondary accused. However, as we will see when we finally do arrive at the conspiracy section 465, to found a conviction under the conspiracy section is quite complicated. Certainly, more complicated than basing the offender’s participation through the party section.
Although this concept or ability to prosecute was easily accepted after 1985 for participating as a party or as a counselor to a crime, the issue of being tried as an accessory after the fact, where the fugitive offender was not convicted, was not. To understand the special status of being an accessory after the fact, we must consider the Supreme Court of Canada Vinette case from 1975. In the Vinette case, the accused Vinette was charged as an accessory after the fact to a murder committed by Vincent by assisting Vincent to dispose of the victim’s body. Vincent entered a plea of guilty to manslaughter and at Vinette’s trial, Vincent’s plea, as a “confession,” was admitted against Vinette. Vinette was convicted by the jury but the conviction was quashed by the Court of Appeal on the basis that Vincent’s plea was not admissible against the co-accused Vinette. Mr. Justice Pigeon, writing on behalf of the majority, allowed the Crown’s appeal and upheld the conviction. In Justice Pigeon’s view, the elements of being an accessory after the fact differs from the main offence and therefore is a separate charge. Thus, the usual evidentiary rules pertaining to admissions made by co-accused do not apply and Vincent’s statements are admissible. According to Justice Pigeon, not only was a charge of accessory separate from the main offence but also by its very nature must be committed after the main offence. This chronological requirement also suggested that the main offender must be tried and convicted before the accessory could be found guilty. However, after a line of cases which tried to decipher Justice Pigeon’s suggestion, it was determined that as the Vinette decision made no mention of the now s. 592, which permitted an accessory to be indicted before the main offender, the chronological argument carried no validity. We will eventually come to s.592 and revisit this conundrum.
In any event, the idea that being an accessory after the fact was a unique charge, which was intimately tied to the main offence resulted in a line of cases questioning s. 23.1 in relation to s. 23. In fact, in the delightful decision of the Honourable Justice Woods, on behalf of the British Columbia Court of Appeal in the 1993 Camponi case, the historical common law significance of being charged as an accessory after the fact was traced in light of s. 592 and s. 23.1. Again, I want to keep back some discussion of this for the much, much later s. 592 podcast but needless to say Justice Woods found no problem with trying an accessory after the fact before the main offender and no problem finding an accessory guilty even if the main offender was acquitted. To that end, and in reference to s.23.1, Justice Woods remarked at paragraph 25 of the decision that:
This section was enacted in 1986, c. 32, s. 46. with what must be regarded as an unusually confident legislative tone, it announces an intention to bring greater certainty to the law relating to ss. 21-23 of the Code. Whether it has achieved that lofty goal will be for history to decide. Suffice it to say that in the context of the present discussion its intent seems to have been to put the quietus to any lingering notion that s. 592 preserved, or was intended to preserve, the essence of the common law rule relating to accessories after the fact.
Finally the matter appeared to be truly put to rest when the 1997 Nova Scotia Court of Appeal FJS (also known as Shalaan) case came to the same conclusion as Camponi and this decision was affirmed with brief reasons by the Supreme Court of Canada. Interestingly, the controversy continued, not in the law courts per se but between the lines in the annotated Criminal Codes. In the commentary under s. 23.1, Martin’s Annual Criminal Code references the Supreme Court of Canada FJS case in support of the position that an accessory after the fact could be convicted even if the main offender was acquitted, while in Allan Gold’s The Practitioner’s Criminal Code, as least as of the 2008 version, the commentary dismissed the Supreme Court of Canada’s decision as decided per incuriam.
But we are not finished with this section and the myriad of case law this section has garnered. Recently, on April 3, 2014, the Supreme Court of Canada dismissed the leave application in the Huard case, which raised the constitutionality of the well-established principle, as really encapsulated by s. 23.1, that a party may be convicted of a more serious offence than that of the main offender. In that case, Mr. Huard was convicted as a party to a first-degree murder even though the principal offender was only convicted of second-degree murder. Counsel argued that the principles of fundamental justice, as guaranteed under s. 7 of the Charter, requires that those less morally culpable should not be punished more severely than those more morally culpable. Mr. Justice Watt, on behalf of the Ontario Court of Appeal, dismissed the argument as he found the “mere common law rule” relied upon was not a principle of fundamental justice and s. 23.1 “makes it clear” that a party can be convicted even if the main offender is acquitted or not even tried. As an aside, the Appellant in the Camponi case relied upon an article written by Justice Watt, which he wrote prior to his appointment to the Bench, on accessory after the fact and the ambiguities found in s. 592. This shows that the connections in the Canadian criminal law are indeed endless and it appears that they may be unlimited too!