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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...an act or omission that

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman

This blog also appears on the ABlawg.ca website:

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Probative Value of Technological Evidence (Revised)

As posted on the ABlawg website: www.ablawg.ca:

Corrigendum:: In the original version of this blog posting, the reference to Madam Justice Germaine as the trial judge was incorrect and is now corrected, with apologies, to Mr. Justice Germain.

“After a while circumstantial evidence can be overwhelming!” remarked Mr. Justice Germain in the recent Alberta Queen’s Bench decision, R v Didechko, (2016 ABQB 376, para 86). In this case, Germain J infers guilt on charges of failing to report an accident where death ensues pursuant to s. 252(1.3) and obstruct justice pursuant to s. 139(2) from the circumstantial technological evidence advanced by the Crown prosecutor. The use of such technological evidence, global positioning or GPS and telecommunications cell tower usage, is not unique. Rather what is singular is the evidential purpose for which it is proffered by the Crown as the only evidence available to establish the required factual connection between the accused and the crime. This case is a portent of the future as technological advancements make it possible, and necessary, to use such technological evidence for the investigation and successful prosecution of crime. Didechko is a persuasive example of a “smart” prosecution wherein the Crown utilizes all the evidentiary tools available to create a cohesive and, ultimately, unassailable prosecution. It is also a wake-up call for all those in the legal system to be mindful of the potential effects of technological advances in building a legally cogent case.

In order to appreciate the intelligence of this prosecution, we must review the facts as potential evidence at trial. At the core, Didechko is factually simple. In the early morning hours of October 14, 2012, the eighteen-year-old victim, Faith Jackson, is hit by a motor vehicle. Two firefighters, who by happenstance were nearby when the collision occurred and observed the event, provide immediate assistance but to no avail as Ms. Jackson soon succumbs to her injuries at the hospital. Later that day, the police find a damaged motor vehicle at the side of a road. Using the vehicle identification number, the police can easily establish ownership by a car dealership. Thus far, the investigation uncovers facts which, at trial, can be easily established through witnesses (i.e. the manager of the dealership) and/or documentary evidence. These facts, when tendered into evidence by the Crown, are an example of direct evidence, which, if believed, resolves an issue without any drawing of inferences by the trier of fact. Typically, direct evidence is given by eyewitnesses to an event or issue, such as in this case, the observations of the firefighters who saw the incident unfold.

However, finding a damaged vehicle does not end the matter. In order to establish Mr. Didechko’s legal responsibility the Crown must prove, beyond a reasonable doubt, two vital factual connections: that the abandoned vehicle was the vehicle involved in the fatality and if so, that Mr. Didechko was in care and control of that vehicle at the relevant time. There must be a nexus between the prohibited conduct (the unreported collision) and the person accused of the crime. In terms of the first matter of proof, identity of the vehicle, Mr. Didechko’s counsel, through an agreed statement of fact filed pursuant to s. 655 of the Criminal Code, admitted it was the involved vehicle. That leaves the crucial issue of identity of the driver as the main issue at trial.

Upon further investigation, the facts reveal that at the relevant time, the abandoned and damaged car, which was the dealership’s demonstration vehicle, was signed out by Mr. Didechko. This can be proven by both direct evidence and by Mr. Didechko’s own admission to the police. But this evidence is still not enough to connect Mr. Didechko to the incident as he reported the vehicle stolen during the relevant time period. In other words, According to Mr. Didechko, he was not in possession of the vehicle when Ms. Jackson was killed. According to his police statement, he was asleep at his father’s home at the time of the incident. However, he gave the police a number of contradictory statements regarding when, where, and how the vehicle was taken. There is also evidence, from video recordings and witnesses, that Mr. Didechko attended a number of bars that evening and consumed alcohol. The police now have a possible motive for Mr. Didechko to mislead the investigators regarding his involvement in the hit and run. But how to prove this in court? The direct evidence at hand is not enough to attribute legal responsibility to Mr. Didechko for the fatal collision. It is suspicious but lacks probative value.

A decade ago a Crown prosecutor faced with this dilemma would determine that there was no reasonable likelihood of conviction and withdraw the charges. A decade ago, the police investigators would agree, having exhausted their investigative techniques. But the situation is different now. In Didechko, the police dig deeper and access information that normally lies hidden: the technological footprint of a person’s daily life. As we make our daily rounds, technology follows us. Our smart phones and computers record our contacts, our thought patterns, and our location. Our cars convey us through the City with technology recording the places we go and the speed at which we do it. This information is there waiting to be mined. In the Didechko case, the police mined this information but it is the Crown prosecutor who turned the data into a persuasive narrative and probative evidence of identity.

The Crown thus weaves an overwhelming case by piecing together seemingly disparate evidence, much of which is circumstantial evidence, from which a trier of fact can draw reasonable inferences. The cell phone transmissions provide the location of Mr. Didechko at the relevant time and place, both at and near the scene of the incident and at and near the location where the motor vehicle was abandoned. It establishes the falsity of Mr. Didechko’s statement that he was sleeping at his father’s home at the time. This evidence ties Mr. Didechko to the vehicle as the vehicle’s GPS traces the path of the incident. Evidence of the people he contacts during and after the incident is available through cell phone records, which also connect him to the incident and to the vehicle. For example, Justice Germaine draws an inference from a timely conversation between Mr. Didechko and his brother (based on cell phone records) as the vehicle returns to the scene (based on both GPS from the vehicle and cell tower positions) where the fatally injured Faith Jackson lies. Presumably, according to Germaine J, Mr. Didechko does so in order to assess the state of his jeopardy and the next steps he will take escape criminal liability.

To establish these technological facts, the Crown does not merely rely on the records and data but calls experts to explain GPS and the cell phone system to establish accuracy and reliability of the evidence. It should be mentioned that the defence fully canvasses the admissibility of the technological evidence in a previous application (see R v Didechko, 2015 ABQB 642). The Crown then builds the case further by explaining the interplay of these technologies and creating an exhibit mapping the connections between the cell towers and the use of the cell phone and as connected to the positioning of the motor vehicle. Again, weaving the circumstantial evidence into proof beyond a reasonable doubt. A final piece of evidence emanating from a text message sent by Mr. Didechko some two hours after the incident neatly sums up the case: “something bad happened sry” (at para 73). It should finally be noted that this same technology also assists the accused in his acquittal of dangerous driving causing death pursuant to s. 249(4) as the GPS evidence could not conclusively show he was driving in a manner dangerous to the public.

The use of GPS and cell phone tower evidence at trial is not novel. For instance, GPS evidence is used in Fisheries Act prosecutions, such as in R v Fraser, 2012 NSPC 55. Such evidence is also used in criminal prosecutions to establish a conspiracy or a common purpose to commit an offence such as in R v Crawford, 2013 BCSC 932. It has also been used to assist in assessing the credibility of witnesses in a “he said/she said” sexual assault allegation, such as in R v Aulakh, 2012 BCCA 340.  Rather, what is novel in the Didecheko case is the utilization of this technological evidence as a combined narrative on the ultimate issue of guilt or innocence. Justice Germain at para 30 of the decision suggests that “modern technology has changed the way in which police investigate crime.” I would change that sentiment only slightly to suggest that modern technology has significantly changed the legal landscape and we, as members of the legal community, must be ready to embrace it.

On The DLW Decision and The Meaning of Modernity

Despite our common law system, statute law remains a key source of law in Canada. Its importance cannot be underestimated as lawmakers rely on legislation to implement policy on various social and economic issues. In many ways, legislation is reflective of who we are as a society and serves to reinforce our collective values. No other piece of legislation in Canada exemplifies this more than our Criminal Code, RSC 1985, c C-46. Contained in this piece of legislation is conduct we deem as a society to be so abhorrent, so contrary to who we are, that we will punish those who commit these prohibited acts, often through a loss of liberty. Although the concept of codification relieves us from speculating on the substance of criminal behaviour, it carries with it the mystique of interpreting or discerning Parliamentary intent in creating those crimes. As a result, statutory interpretation is often the main issue in criminal cases as judges wrestle with words, meanings, and intentions. This process is vital in criminal law, where a turn of phrase can mean the difference between guilt or innocence. The difficulty lies in dealing with crimes that carry centuries of established meaning, such as murder, assault, and theft. Yet, the crimes so interpreted must remain relevant. In this blog post, I will explore certain aspects of the DLW judgment, 2016 SCC 22, the most recent Supreme Court of Canada decision employing statutory interpretation principles, on the crime of bestiality (section 160 of the Criminal Code). Here, the Court enters into an age old process of interpretation yet does so, seemingly, in the name of modernity. This case highlights the inherent problems in discerning or interpreting value-laden legislation as it then was and then, ultimately, as it needs to be.

Before we delve into DLW, we must set our general legislative expectations. As mentioned earlier, legislation is based upon sound public policy. Seen in this light, legislation should provide a narrative displaying the objectives and goals of the rules contained within their sections. It should provide clarity of purpose with which we can identify. Legislation should be accessible to all, not just in a physical sense, but also intellectually. Moreover, legislation, as a delivery platform, should be flexible and responsive to the societal values it is meant to emulate. However, these expectations seem to dissolve as soon as the ink dries on the paper. In the context of a written document, legislation seems to lose its dynamic quality. Indeed, as suggested by Lord Esher in Sharpe v Wakefield (1888), 22 Q.B.D. 239, at p. 242, “The words of a statute must be construed as they would have been the day after the statute was passed,” meaning that the words have a frozen quality as they encapsulate a moment in time. The key is in knowing what that moment reveals, which is crucial for the proper implementation and application of the legislation.

Although, the courts have entered into the legislative fray since time immemorial, or at least since 1235 when the first Act of the English Parliament was passed (see for example, Statute of Merton, Attorneys in County Court Act, 1235), it is still far from clear how the courts perform this interpretive function. To be sure rules have been fashioned such as the “Plain Meaning Rule,” also known as the “Literal Rule,” or the “Mischief Rule” or even the “Golden Rule.” Just to clarify, that is the other Golden Rule, not the biblical one. In any event, sprinkled liberally between these over-arching rules are specific rules and maxims, usually proposed in Latin, making the whole exercise very structured, formalistic, and confusing. Thankfully, this conundrum was noted by Elmer Driedger, long-time Solicitor for the Attorney-General of Canada and author of the seminal work in the area.  In the Construction of Statutes 2nd ed., Toronto, Butterworths, 1983, at 87, Driedger summed up all of the disparate rules into one sentence:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Within the year, in Stubart Investments Ltd v The Queen decision, [1984] 1 SCR 536, the Supreme Court of Canada endorsed this “modern rule.” By 1985, the principle was deemed “oft-quoted” in Vachon v Canada Employment and Immigration Commission, [1985] 2 SCR 417 (at para 48). Despite the Court’s quick embracement of the “modern rule” or “modern principles,” decades later, it is still unclear what this rule encompasses and how “modern” it truly is. This topic is thoroughly canvassed in the fascinating article on the development and use of the “modern principle” authored by Stéphane Beaulac and Pierre-André Côté, entitled “Driedger’s “Modern Principle” at the Supreme Court of Canada: Interpretation, Justification, Legitimization” ((2006) 40 R.J.T. 131. In the paper, Beaulac and Côté persuasively argue that the principle is far from modern, even at the time of its reception by the Court. They posit the principle, as articulated by Driedger in 1983, was simply a rough summary of the main statutory principles in use at the time. Certainly by 2006, the principle was far from “modern” having been in use for years. As an aside, some of these principles can be traced to the thirteen rules of Talmudic textual interpretation, particularly rule twelve, which suggests a contextual interpretation. In any event, the Supreme Court of Canada still confers the moniker, “modern,” to the approach (see R v Borowiec, 2016 SCC 11 at para 18). Its modernity, therefore, appears to be in question.

However, in the spirit of Driedger let us first do a little interpretation on the term “modern.” In the DLW case, “modern” appears to mean “new” as opposed to “old.” Looking at the “grammatical and ordinary sense” of the word “modern,” the Oxford Dictionary, the go-to text for the Supreme Court of Canada (CanLii search found 147 SCC cases referencing the Oxford Dictionary as opposed to a paltry 11 cases for Merriam-Webster), the definition is “relating to the present or recent times as opposed to the remote past” or “characterized by or using the most up-to-date techniques, ideas, or equipment.” Indeed, in Justice Abella’s dissent in DLW, she frames the issue as the new against the old with her newer more “modern” interpretation of the crime as opposed to the majority, written by Justice Cromwell, an old hand at statutory interpretation cases, as the purveyor of the old fashioned, decidedly out of sync with today’s realities.

Abella J accomplishes this new/old dichotomy through her deft use of metaphor directed at the majority decision. The opening paragraph of her dissent utilizes agricultural metaphors of abundance (at para 125) describing the “fertile field” of statutory interpretation with the “routine harvest” of “words and intentions” as “planted” by the lawmakers.  This metaphor brings to mind not only quantity but also the longevity of the interpretative technique as she then extends her position that the crime of bestiality must receive a modern interpretation despite the fact it is a “centuries old” crime (at para 126) whose “roots” are “old, deep, and gnarled” (at para 125). Thus an interpretation of the crime, based on tradition as per the majority under Cromwell J, is not a living tree but an ancient inaccessible relic of the past. Cleverly, Abella J’s opening of the issue is an effective foil to Justice Cromwell’s majority where he characterizes bestiality as a “very old” crime in his opening paragraph (at para 1) but one which cannot be made “new” without clear Parliamentary intention and certainly not through judicial intervention. In paragraph 13, Justice Cromwell hands Justice Abella her thematic metaphor by setting out the “root” of the issue as an interplay between common law and statutory intention. A similar technique was used by Justice Karakatsanis, with Justice Abella concurring, in the dissent in the Fearon case, [2014] 3 SCR 621, 2014 SCC 77 (CanLII), wherein Justice Cromwell too authored the majority decision. There, through the deliberate choice of word use, the dissent of Karakatsanis J breathes modernity in stark contrast to Cromwell J’s reliance on traditional legalistic nomenclature (for further discussion on this see, as published on my website, my previous blog entitled A Fresh Look At Fearon: How Language Informs The Law).

In fact, Justice Abella is right: the issue in DLW is very much bound up with the old and the new as the court is faced with the task of defining the meaning of “bestiality” as it relates to a disturbing child sexual abuse case where a family pet was used to molest a child. The “old” or “traditional” view of bestiality, undefined in the Criminal Code but as gleaned through common law, has the requirement for penetration. This definition fails to not only capture the conduct in DLW but also fails, according to Justice Abella’s dissent, on a cultural, social, and public policy level as well. The irony, in the context of interpreting our codified criminal law, is the reliance on the common law conception of the crime. Since its inception in 1892, the Criminal Code has been the only source, with one limited exception, for identifying which conduct should be considered criminal. If conduct is not proscribed in our Code as a crime, then it is not one. In other words, the common law, or those unwritten rules which have developed over time, cannot create a crime. The only exception being the common law offence of contempt of court pursuant to s. 9 of the Criminal Code. Otherwise, only our Parliament under s. 91(27) of the Constitution Act, 1867 has the authority to create criminal law. Nevertheless, the common law is not ignored in the interpretative process. For the majority, the common law remains unchanged by codification and therefore can be equated with Parliamentary intention. To go any further, in the view of the majority, the courts would be creating a “new” crime, which is not within the judicial function. Conversely, for Justice Abella, the common law conception of bestiality reinforces the present need to move beyond it.

In this sense “modern” can also denote more than a chronological time. It can also, according to the Oxford Dictionary, refer to a “current or recent style or trend in art, architecture, or other cultural activity marked by a significant departure from traditional styles and values.” In this definition, looking at legislation as a “cultural activity” in the broadest sense, Justice Abella’s reading of the term proposes a departure from the traditional “modern principles” through the lens of current societal interests as reflected in the present policy decisions behind the creation of crimes. However, in the realm of traditional statutory interpretation, although Parliamentary intention -through the scheme and objectives of the legislation- lends context to the statutory interpretation process, such context does not necessarily include a deep dive into the policy behind the legislation. Certainly, Driedger’s principles do not directly make reference to it. This lack of clarity, according to Beaulac and Côté in their article, has resulted in uneven judicial treatment of policy in statutory interpretation. For instance, in Canadian Broadcasting Corp v SODRAC 2003 Inc, [2015] 3 SCR 615, at paragraph 55 the majority decision written by Justice Rothstein (Cromwell J, among others, concurring) effectively cautions against the dissent’s use of policy considerations in textual interpretation. In that case, Justice Abella, yet again, writes the main dissenting position. The DLW decision, therefore, is just another example of this interpretive tension. However, considering traditional statutory interpretation in discerning Parliamentary intention was reluctant to go beyond the four corners of the document, the now ubiquitous use of Hansard to elucidate on such intention shows how far the court has and can move from tradition towards modernity. This will definitely be a continuing dialogue within the court to watch for in future cases.

So what of the modernity of the principle in use in the DLW case? It has already been established that this principle has been in use for years and, according to Beaulac and Cote, may even be a mere reiteration of what had been in use prior to 1983. However, as Beaulac and Cote also recognize, Driedger’s principle is both a “method of interpretation” and a “framework for justification.” It is that dual nature, which provides an inherent flexibility to the principle, permitting it to discern or interpret even the most profound words found in our rules of law. Its application, as seen through the discourse in the DLW case, cannot be confined by the four corners of a piece of legislation but must permit a deeper analysis involving societal values and purpose to remain meaningful. In short, it requires, a touch of modernity.

This blog is also posted on Ablawg website: www.ablawg.ca

 

 

Episode 45 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 50 Assisting the Enemy and Failing to Prevent Treason

Section 50 continues our discussion of prohibited acts under the Part relating to offences against the public order. Section 50 contains two separate offences: assisting an enemy of Canada to leave the country without consent of the Crown and knowingly failing to advise a peace officer or a justice of the peace of an imminent act of treason. The full section reads as follows:

50(1) Every one commits an offence who

            (a) incites or wilfully assists a subject of

                        (i) a state that is at war with Canada, or

(ii) a state against whose forces Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the state whose forces they are,

to leave Canada without the consent of the Crown, unless the accused establishes that assistance to the state referred to in subparagraph (i) or the forces of the state referred to in subparagraph (ii), as the case may be, was not intended thereby; or

(b) knowing that a person is about to commit high treason or treason does not, with all reasonable dispatch, inform a justice of the peace or other peace officer thereof or make other reasonable efforts to prevent that person from committing high treason or treason.

These offences are indictable and pursuant to subsection 2 of the section, the maximum punishment is fourteen years incarceration. As is evident from the wording of the section, these offences are closely aligned to treason and treasonable acts. Indeed, the offence of failing to inform on a person about to commit treason is essentially an offence of being an accessory or party to the treason, either before the fact or after. Originally, this section in the 1892 Criminal Code was worded to that effect. The change came in the 1915 amendments, most likely as a result of World War One, when the offence of assisting an “alien enemy” was added immediately after the offence of accessory section. In 1927, the two offences were combined under one section. Finally, in the 1953-54 amendments to the Code, the specific reference to accessory was deleted and the section was re-enacted as it stands today.

Needless to say, I have been unable to find any reported decisions on this section other than a reference to the duty to report under s. 50(1)(b). In the 1990 Dersch case, the BCCA considered the seizure of blood samples in a case of suspected impaired driving where the accused was unconscious when the samples were taken for medical purposes. The issue of confidentiality of medical information was considered with the acknowledgement that such confidentiality was subject to exceptional circumstances such as a statutory duty to report. Section 50(1)(b) was cited as an example of such an exceptional situation.

The mens rea requirements for this section is of interest. It could be argued that both offences under this section require a high level of mens rea. In s. 50(1)(a) the use of the word “wilfully” suggests the requirement for a high level of subjective liability, which does not include recklessness. However, the term “willfully,” does not necessarily denote a high level of subjective mens rea as per the 1979 Ontario Court of Appeal case of Buzzanga and Durocher. The contra-argument would rely on the context of this offence, including its connection to treason and the severe punishment attached to conviction, as support for a high level of mens rea. But, s. 50(1)(a) reverses the onus of proof onto the accused by requiring the defence to “establish” that the assistance rendered was not intended. This reverse onus would certainly be subject to a Charter argument under s. 7 and s. 11(d). The mens rea requirement for s. 50(1)(b) is easier to discern as it requires the accused to have knowledge of the expected treason, which clearly requires proof of a high level of subjective liability by the Crown.

Although this section has been historically underused, considering the rise in alleged acts of terrorism, there is a possibility the section could be used in the future. There could be an argument that members of certain terrorist groups are in fact “at war” with Canada and a further argument that these groups in some ways constitute a “state” for purposes of the section. In fact, some of these groups do identify as such. However, in light of new legislation, both within the Code and through other federal statutes, relating to this area, it is more likely the government will prefer to lay charges under this newer legislation, which provides a broader basis for conviction. Probably the best indication of the viability of this section is whether or not it remains in the Criminal Code, in its present form, after the much anticipated government review of the Criminal Code.

 

Who Are the “Parents of the Nation”? Thoughts on the Stephan Case and Section 215 of the Criminal Code ( also published on the ABlawg.ca website)

Much has been written and said on the characteristics of a “good” parent. Such information is easily accessible by anyone with a library card and internet access. It can be found by a click of our mouse on various blog postings (click here for a list of parenting blogs, which share the “real truth” about parenting) and dedicated websites (click here for a list of “not-to-be-missed” websites). Even celebrity has something to say about parenting practices; cue self-styled “lifestyle” guru, Gwyneth Paltrow, who famously has her children on a controversial low-carb, sugar free diet. Social media is another fount of information, often in the form of criticism or apologies. All of these venues enforce a “normative” notion of parenting. But through all this data there seems to be a bright-line drawn between “good” and “bad” parenting. For example, “bad” parents administer cocaine to a child (R v TB, 2010 ONSC 1579), knowingly leave a child in a car for an extended period of time during a hot summer afternoon (R v Huang, 2015 ONCJ 46), or intentionally attacks a child with a knife (R v BJG, 2013 ABCA 260). In those instances, the egregious conduct is not merely “bad” parenting but criminal behavior deserving of state imposed sanctions and its concomitant stigma. Although we can recognize “criminal” parenting when we see it, the real difficulty lies in identifying behaviors that are not so evidently “bad.” The recent Stephan case has ignited a debate on where that line between “bad” and “criminal” should be drawn; or is the line already drawn perhaps not as bright as we might have previously believed?

David and Collet Stephan were convicted of failing to provide the necessities of life to their 19-month old child, Ezekiel, who died from bacterial meningitis after the couple rejected medical treatment for the child opting instead for naturopathic remedies. The seven-day trial attracted intense media and social media attention. For instance, a quick and crude Google search of “David Stephan” provided 91,400 results, while “Collet Stephan” produced 67,700 hits. Interestingly, a Google search for “David and Collet Stephan” netted 40,800 results, while the reverse search of “Collet and David Stephan” suggestively revealed only 912 web hits. This difference can probably be explained by David Stephan’s very public disappointment in the verdict and the “open letter” to the jury he posted on Facebook. In any event, the reaction to the verdict was not homogeneous, with many people supportive of the couple shocked at the guilty verdict, while others were distinctly unsurprised. The reason for this disconnect may lie in the actual offence charged, which is found under section 215 of the Criminal Code.

Section 215(1) creates legal duties on people based on the nature of the relationships between them, or based on undertakings to care for a person in need. Under subsection 2, it is the failure to perform that duty which lies at the crux of the offence. Traditionally, criminal law is disinclined to base criminal sanction on omissions or failures to act. This disinclination can be seen in the parameters of criminal omissions such as found in s. 219, criminal negligence, wherein an omission can be an element of the offence if it involves a “duty imposed by law.” Indeed, such a legal duty can be found under s. 215. Even though omissions sit uncomfortably within the criminal law, section 215 as a crime of neglect has been in the Criminal Code since its inception in 1892.

Section 215 has changed very little over the ensuing 134 years other than making the application of the section gender neutral and increasing the maximum penalty upon conviction. Since 2005, if the Crown elects to proceed by indictment, the maximum sentence is five years incarceration, increased from the previous maximum of two years. On summary conviction maximum has also increased to a period of eighteen months incarceration, up from six months and/or a $2,000 fine. Despite the longevity of this section, there appears to be a surprisingly small number of reported cases (Westlaw search produced 371 cases with 149 of those pertaining to the duty of a “parent” to a child). The historical reason for the parental legal duty was to account for the husband/father deserting a wife and child, which caused an endangerment of life and health (R v Middleton, 1997 CanLII 12350 (ON SC) LaForme J (as he then was) at para 10). Although in later amendments, the definition of “parent” included either spouse, the broader objective of criminalizing parental conduct remained the same.

Case law has distinguished the duty imposed as a result of a familial or familial-like relationship from the duty arising from an undertaking to care for a person in need. In the latter case, it is this “undertaking” to protect and provide for another person which controls the duty. This focus on an “undertaking” has its genesis in contract law as noted in Burbidge’s Digest of the Criminal Law published in 1890 before the Criminal Code was introduced. In Article 269 the duty to provide the necessaries of life arises “by contract or by law, or by the act of taking charge.” This concept of “taking charge” with a resultant undertaking to assist is consistent with common law omissions, which arises from a positive act of the accused. Once an accused acts by undertaking to care for another then the duty to continue those actions arise. Any failure or neglect of that undertaking or duty, which results in harm or a risk of harm, becomes the omission under the criminal law. Much of the legal controversy regarding this duty naturally focuses on the actual initial act or undertaking and in what circumstances the law should find such a duty to exist or not.

In the matter of a “parent, guardian or head of a family” who fails to provide the “necessaries of life” for a child under sixteen years, it is the ongoing nuclear relationship which binds them. Case law, as it relates to a parent’s duty to a child, does not focus on the creation of that relationship. Rather, the more pressing issue, in terms of the actus reus requirements, is whether or not the neglect constitutes the “necessaries of life” which endangers the life or health of the child. In the 1912 Sydney case (20 CCC 376 (SKCA)), the term “necessaries” included “food, clothing, shelter, and medical attendance.” That list was non-exhaustive and depended upon the circumstances of the case. The term also acquires its meaning from the Criminal Code as the heading under which s. 215 is found is entitled Duties Tending to Preservation of Life. By this “preamble,” necessaries must be those which “tend to preserve life” and are not necessaries “in their ordinary legal sense” (Rex v Brooks (1902), 5 CCC 372 (BCCA)).

This uncodified judicial definition of “necessaries of life” has broadened in scope over the years to reflect society’s changing values. Modernity lies at the core of these changes as technological advances, the humanistic approach, and as mentioned earlier, the advent of media has required more or even different parental obligations. The “necessaries of life” has become more than adequate subsistence as it reflects society’s concern to protect the most vulnerable in our society from harm. To that end, Justice G. A. Martin in the 1981 Ontario Court of Appeal case of Popen (60 C.C.C. (2d) 232) found the “necessaries of life” should not be confined to specific necessities such as food and shelter. Rather, it also includes a more general duty to provide “necessary protection of a child from harm” (Popen at para 20). This broader definition was applied in the 1999 Hariczuk case ([1999] OJ No. 1424 (ONCJ)), in which Justice Vaillancourt found a parental duty, under s. 215, to provide a safe environment for a child. Tragically, the accused, who was making great progress in his drug addiction treatment in order to be a “good” parent to his six-year old son, prepared his methadone treatment by mixing it with his son’s favourite beverage. Although Mr. Hariczuk cautioned his son not to drink it, the child did so when he awoke thirsty in the middle of the night. In that case, Hariczuk was convicted of manslaughter.

Although society shares the obligation to protect children as seen through the myriad of child protection legislation both federally and provincially, public policy requires that parents must meet the standard of conduct of a reasonably prudent parent. It is in those cases where the failure in the s. 215 duty is a “marked departure” from the norm, that the criminal law bright-line is drawn between a “bad” parent and a “criminal” one (R v Naglik, [1993] 3 SCR 122, 1993 CanLII 64 (SCC), Lamer CJ at paras 45 to 46). This marked or criminal departure from the accepted standard of care constitutes the mens rea or fault element of the offence under s. 215. It is an objective standard of liability, which does not depend on the awareness or intention of the accused but on the legal construction of a standard embodied by the “reasonably prudent parent.” Therefore, the determination of criminal responsibility depends on "a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child"(Naglik at para 46; R v JF, [2008] 3 SCR 215, 2008 SCC 60 at para 8).

Despite Lamer CJ’s great efforts in the late eighties and early nineties to imbue the objective standard with the personal characteristics of the accused as a concession to human frailties in order to ensure the morally innocent would not be captured by the criminal law, the “reasonably prudent parent” does not “look” like the accused. The “modification” to the objective standard, if it can even be called that, lies in the requirement that the trier of fact assess the standard in light of the circumstances of the case. Therefore, it is in the determination of the facts and how they connect to both the actus reus and mens rea requirements, which will result in a finding that certain parental conduct is or is not criminal.

Of course, this suggests a range of contextualized conduct that will attract penal sanctioning. In fact, many cases involving the death of a child result in charges of murder (s. 229) or manslaughter (s. 222(5)(a) or (b)) or criminal negligence causing death (s.221). The legal duty found under s.215 can provide the underlying unlawful act for all of these charges, even for the offence of murder, which requires a subjective fault element. For example, in R v Boittneau, (269 CCC (3d) 227, 2011 ONCA 194) the grandparents were convicted of second-degree murder for the neglect of their grandson. Another Alberta trial is soon to begin in which the parents are charged with first-degree murder as a result of the death of their son who died of a bacterial infection, allegedly contracted as a result neglect.  Some cases, not involving a fatality, may be a criminal negligence charge, under s. 219 of the Criminal Code, predicated on s. 215 as the legal duty required as part of the actus reus of the offence. In those cases, the prosecution must not only establish the required elements of s. 215 but must also prove that the conduct of the accused, objectively viewed, displayed a “wanton and reckless disregard for the lives and safety of others” and was a marked and substantial departure from the required standard. The higher degree of departure being both “marked” and “substantial” is consistent with the higher possible penalties upon conviction (see R v ADH, [2013] 2 SCR 269, 2013 SCC 28 Cromwell J at para 61).

Understanding the background and make-up of s. 215 does assist us in discussing the Stephan case and the resultant public interest in the file. In many ways, the circumstances fit easily within the legal duty as outlined in s. 215 and the judicial interpretation of the necessaries of life. There are many cases where a parent’s failure to provide a child with prompt and adequate medical attention has resulted in a conviction under s. 215 or for the more serious offences of criminal negligence or manslaughter. Some of these cases are in the context of the belief system of the parents, typically on religious grounds. In the seminal case of Tutton and Tutton ([1989] 1 SCR 1392), Arthur and Carol Tutton were convicted of manslaughter as a result of stopping their diabetic child’s insulin injections in favour of faith healing. The Supreme Court of Canada sent the matter back for retrial but on the basis of the inadequacy of the charge to the jury on the defence of mistake of fact. In that case too, public opinion was divided. According to a news article describing the conviction, “a number of supporters cried and embraced” the Tuttons.

Although factually, the Stephan case seems to “fit” the kind of conduct prosecuted under s. 215, the emphasis must not be on the tragic outcome but on whether or not the conduct was a “marked departure” from the reasonable parent standard. As with so many legal terms “marked” is not quantified but is to be read in the context of the criminal sanction. As with driving offences, to attract a criminal sanction, the conduct must involve more than mere imperfections. Thus, the question of what is “marked” is not based on “are these parents “bad” parents,” or even, “based on my own personal standards are these parents bad parents,” but rather the question is based on the societal standard in place in the context of the circumstances.  Therefore, it is not those who occasionally slip off that standard or even those who are continually slightly below that standard, who should be subject to society’s ultimate approbation through our criminal law. For instance, in the 2006 Brennan case (243 NSR (2d) 18 (NSPC)), Rhonda Brennan was acquitted of failing to provide the necessaries of life to her two-month old child. The child was born seven and a half months premature. Although the baby initially gained weight and seemed to thrive while in the hospital, once in the mother’s care, the baby’s weight declined. Rhonda generally followed medical instruction, took her baby to the public health nurse and pediatrician, and implemented a feeding regime. In acquitting Rhonda, Provincial Court Judge Tufts found that although she failed to adequately feed the baby, the risk of harm to the child would not have been apparent to a reasonably prudent parent. Another parent may have been more “attuned” to the situation and more “aggressive” in their approach but the accused’s conduct was not a marked departure from the standard.  In the Stephan case people will disagree on the verdict based on their own concept of parenting and strongly held beliefs but, accepting that the jury was properly instructed on the law, the finding of guilt would be based on a finding that in all of the circumstances, objectively viewed, the Stephans’ conduct was a marked departure from that of the reasonably prudent parent.

Still there is room for debate over the criminalization of parenting and the efficacy of permitting the law access into our most intimate relationships (in a different context I harken back to Prime Minister Pierre E. Trudeau’s oft quoted statement that “The state has no business in the bedrooms of the nation”). We should, as a society, discuss where the line should be drawn and when we should “invite” the law into our homes or sanction its entrance through our Criminal Code in the guise of parens patriae (translates to “parents of the nation”). Perhaps we should also reconsider how we judge ourselves and our neighbours, particularly in social media.  In an age of opting out of vaccinations and home schooling, the boundaries of “good” and “bad” parenting seem to shift and waver with each Twitter re-tweet and every Facebook “like”: Was that lunch nutritious enough? Do my kids go to bed too late? Are my children too scheduled? And, finally, am I being judged for my parental decisions? Although all of these concerns are a far cry from the kind of conduct underlying s. 215, all of those criminal cases, including the Stephan case, raise the tension we all feel between private life and public expectations.

 

In Praise of the Passionate Lawyer

Recently, Rex Murphy eloquently reminded us of the lawyer’s role in the justice system. He did this in support of Marie Henein's CBC interview. An interview she did not give to defend the profession but to remind us of how it works. To remind us, as Rex Murphy stresses, of the core values lawyers protect and engage in: liberty, fairness, and justice through the lens of the presumption of innocence. Some of these values may seem trite or overdrawn but they are not. They are at the very heart of our society as they define who we are and who we are not. For lawyers, who practice in this milieu, these values underscore and frame everything we do. Admittedly, these values, or objectives, are difficult to attain.  Clarence Darrow, who epitomizes these values, once said: “Justice has nothing to do with what goes on in a courtroom; Justice is what comes out of a courtroom.” Thus, these values can be elusive, can be difficult to attain, and can question your belief in them. Perhaps this is why we cherish them even more.

There is one comment made by Rex Murphy I do question. He describes the lawyer’s role as dispassionate. This is not so. To be dispassionate suggests an observer’s role or even an impartial one. Lawyers are not observers: lawyers are in it and they are in it zealously. Perhaps he means lawyers cannot get lost in the emotional content of the case for fear of losing their perspective. It is this perspective, as a person learned in the law, which is of utmost assistance to the client. Nevertheless, lawyers are in the business of passion: Whether it is around us as part of the case or whether we passionately advocate for our client. It is this passion, which connects us, as lawyers and as members of society, to those core values we hold so dear. Passion and compassion is our stock and trade – and so I praise it.

R v LSM and the “Sanctity” of the Joint Submission: A Case Commentary for ABlawg (http://ablawg.ca)

In R v LSM, 2016 ABQB 112, Associate Chief Justice Rooke of the Court of Queen’s Bench of Alberta, sitting as a summary conviction appeal court, considers the “sanctity” of the joint submission and the circumstances in which the subsequent sentence will be varied on appeal. In his view “an appeal of a joint submission should rarely succeed” (at para 20). He supports this position by outlining three very narrow exceptions to this rule. After a thorough analysis of the principles, Associate Chief Justice Rooke reluctantly allows the appeal in part. He does so by finding only one ground of appeal, the ground presented on consent, falls within an exception. The decision, on its face, appears to be a straightforward application of the principles at hand. Yet, on further contemplation, this decision may not be about the “sanctity” of a joint submission but rather about ensuring that, in the end, justice is done.

Associate Chief Justice Rooke immediately frames the issue in sweeping terms in the opening paragraph of the decision: “This case concerns the sanctity of the ‘joint submission’ on a guilty plea and sentence in the administration of justice.” On a review of case law, the descriptor “sanctity” seems overdrawn. Although, joint submissions enjoy a “high level of deference” and must be given “serious consideration” by the sentencing judge (See R v GWC, 2000 ABCA 333, Berger, JA at para 20), they are not inviolable. A sentencing judge is not bound by the proposed sentence. Indeed, as explained by Mr. Justice Berger in GWC (at para 19), it is incumbent on the sentencing judge to undertake “a careful and diligent inquiry of counsel as to the circumstances underlying a joint sentencing submission” before exercising the discretion to accept it.  This is done to ensure the proposed sentence, in accordance with sentencing principles, is a fit one. Accordingly, sentencing judges should only reject a joint submission where the sentence proposed is unfit or unreasonable (See R v Gibson, 2015 ABCA 41 at paras 9 to 10).  Indeed, departing from a joint submission, which is fit, should not be done “even if he or she would impose a harsher sentence which would also be fit and reasonable” (See R v Bullock, 2013 ABCA 44, Berger, JA for the majority at para 18).

Some appellate jurisdictions have taken the position that a joint submission may also be rejected if the sentence is contrary to the public interest and would bring the administration of justice into disrepute. Currently, the efficacy of this additional more stringent ground for departing from a joint submission will be argued on March 31, 2016 before the Supreme Court of Canada in the Anthony-Cook case on appeal from the British Columbia Court of Appeal (R v Anthony-Cook, 2015 BCCA 22). In Alberta, this ground has not been consistently adopted. In the GWC decision, Mr. Justice Berger does refer to this position in paragraph 18 without endorsing it as a viable ground beyond fitness or unreasonableness. In the dissenting decision of Shular, (2014 ABCA 241) Madame Justice Hunt at paragraph 106 does rely on this ground as providing an additional basis for rejecting a joint submission. However, leave to appeal to the Supreme Court of Canada was dismissed in this case (Robert Shular v Her Majesty the Queen, 2014 CanLII 76800 (SCC).

Additionally, the joint submission itself is not considered a binding undertaking between the defence and prosecution. In the 2011 Nixon case ([2011] 2 SCR 566), the Supreme Court of Canada agreed with the Alberta Court of Appeal’s decision that the repudiation of a plea agreement, on the basis it was contrary to the public interest, was not an abuse of process but a proper exercise of prosecutorial discretion. In that instance, the plea negotiation included a joint submission on sentence.  

Even though the original joint submission cannot be considered sacrosanct, is the sentence imposed on the basis of a joint submission essentially “appeal proof?” Associate Chief Justice Rooke finds it is, except in three very narrow circumstances. In his view, where a joint submission is proffered by competent counsel and accepted by a sentencing judge, the offender should not be permitted to “resile” later on appeal (para 2). Further, according to Associate Chief Justice Rooke, the the appeal court should “support” joint submissions by upholding them on appeal (para 21). As he explains, in paragraphs 21 and 25, a joint submission is an efficient and effective way to deal with criminal matters in the “busy docket courts.” It would therefore be counter intuitive to the realities of the practice of criminal law and the quest for finality to provide a further forum for change. The appellate arena is not, as described by Associate Chief Justice Rooke in paragraph 25, an opportunity to express “buyer’s remorse.” This last comment has some truth to it as there must be articulable grounds for appeal in accordance with sentencing principles and s. 687 of the Criminal Code. However, Associate Chief Justice Rooke further contends that a sentence resulting from a joint submission does not exist “until we allege there is an error in the sentencing judge accepting our representations or some other way.” This premise comes very close to suggesting an erroneous position: that even an error in principle should not be a ground for appellate intervention. As argued in this commentary, that is exactly when appellate intervention is not only permitted but also desired.

In any event, Associate Chief Justice Rooke cites three “very narrow” circumstances in which an offender can “resile” from a sentence imposed by way of joint submission (para 2). The first exception is where the sentence imposed is illegal as it is statutorily unavailable (para 3). The second instance is where the sentence, “for some unusual reason,” is demonstrably unfit (para 4). Third, which according to Associate Chief Justice Rooke is the situation in LSM, is where there is a “change in circumstances” after sentence is imposed (para 5).

The first exception, illegality of sentence, makes sense. Certainly, there is an obligation on the appellate court to correct an illegal sentence. Even in cases where an appeal has not been filed within the designated appeal period, the court has allowed extensions to file an appeal where an illegal sentence was imposed (see for example R v MJR, 2007 NSCA 35). In R v Hunter (2004 ABCA 230), the Alberta Court of Appeal vacated the illegal conditional sentence of 18 months imposed for a summary conviction offence, where the maximum sentence was six months incarceration, in favour of time served.

The second exception permits an appeal where, for “unusual” reasons, the sentence imposed is demonstrably unfit. As an example of this, Associate Chief Justice Rooke refers to in paragraph 4 the unusual situation in which competence of counsel is raised on appeal. Granted, competency of counsel as it relates to the efficacy of a joint submission is a valid ground and, due to the presumption of competency, may be viewed as rarely raised. Leaving that situation aside, there may be other situations, not as rare, where a sentence resulting from a joint submission is demonstrably unfit or unreasonable. Associate Chief Justice Rooke in paragraph 21 depicts the heightened circumstances in which a joint submission might occur as a “busy docket court” where counsel “deemed to be competent and knowledgeable in the law” proffer a joint submission thereby “impliedly certifying” the sentence is fit and requesting the sentencing judge to “endorse” it.  Indeed, as mentioned earlier, it is precisely in those heightened circumstances of “busy docket courts” where matters are dealt with summarily, which may provide the perfect environment for an unfit sentence. It is in those scenarios where an accused may too readily accede to a joint submission or where “competent and knowledgeable counsel” may accept a position that upon further reflection may require appellate scrutiny. In the end, it is the ultimate fitness of the sentence imposed by whatever means, which is at issue on appeal. As Mr. Justice Wagner explains in paragraph 3 of the Lacasse decision ([2015] 3 SCR 1089), it is the very credibility of the criminal justice system at risk when an unfit sentence, be it “too harsh or too lenient,” is imposed. An unfit sentence does not become fit merely because everyone agrees to it just as an illegal sentence, imposed on consent, does not then become legal. There are numerous appellate decisions upholding departures from joint submissions to further this contention. Surely, the same reasoning should hold in the converse situation of an offender appealing a sentence he or his counsel agreed to previously, particularly considering it is the offender’s liberty interest which is at risk.

It is the third exception, permitting a variation where there is a change in circumstance after imposition of the sentence, which seems an incongruous ground considering Associate Chief Justice Rooke’s position. Indeed, a change of circumstance (not even a material change of circumstance is required) is a generous ground for intervention. In paragraph 27 of the decision, Associate Chief Justice Rooke attempts to support this ground for intervention by reference to the 2012 decision of the Alberta Court of Appeal in R v Gangl (2012 ABCA 121). There, the majority of the court found the sentencing judge made no errors in imposing sentence yet reduced the sentence. In the majority’s view, the appellant’s circumstances were exceptional and the accused who had “serious health problems” was impacted by the “consequences” of the conviction. As a result, the majority converted the conviction to a conditional discharge. The dissenting justice disagreed as there was no “reviewable error.”

Although Associate Chief Justice Rooke characterizes the Gangl decision as authority for an exception to the general rule, this finding is questionable for two reasons. First, this was a case, according to the majority, for a conditional discharge. A discharge under s. 730 of the Criminal Code, is a sanction in which a finding of guilt is made but no conviction is entered. A discharge, per s. 730, is granted where it is “in the best interests of the accused and not contrary to the public interest.” A consideration in imposing a discharge is whether a conviction would have “serious repercussions” (See R v Sanchez-Pino, 1973 CanLII 794 (ON CA)) for the accused, such as employment difficulties or, as suggested by the court in Gangl, “a number of consequences flow from this conviction” (para 2). Admittedly, the court’s analysis in Gangl is brief and does not discuss the six factors to consider in granting a discharge as required by the MacFarlane decision (1976 ALTASCAD 6 (CanLII)), but, on the face of the record, one could argue that in Gangl there was a “reviewable” error.

Second, this exception for a change in circumstances post-sentence is not a ground for appellate intervention according to the newly released decision of the Supreme Court of Canada in Lacasse and as quoted by Associate Chief Justice Rooke in paragraph 24. Associate Chief Justice Rooke makes further reference to the Ontario Court of Appeal case in Wood (1988, 131 C.C.C. (3d) 250). This is a 1988 case decided before the Supreme Court of Canada decision in Lacasse in which, as previously discussed, emphasizes the importance of deference to the sentencing judge. Further, Justice Lacourciere at paragraph 9, in rendering the Wood decision, states that “certainly the accused is given greater latitude than the Crown on an appeal of this kind in that he is generally not bound to the same extent by the submissions of his counsel as to sentence.” Wood was referred to approvingly in both the GWC decision at paragraph 19 and in the LRT decision (2010 ABCA 224 at para 11). As succinctly put by Justice Lacourciere in Wood (para 9), “the ultimate responsibility to determine the fitness of sentence is on the Court of Appeal.”

Associate Chief Justice Rooke, applying his rule, ultimately finds only one ground of appeal as a matter properly coming under the third exception. Earlier, in outlining this exception in paragraph 5, he offered s. 161 as an example of when such a change in circumstances may occur. This section provides for a variance of conditions in a prohibition order imposed on an offender convicted of any number of sexual offences involving children. As he notes and as contained in the wording of s. 161(3), an application to vary the sentence is heard before the sentencing judge or “where the court is for any reason unable to act, another court of equivalent jurisdiction.” In other words, the proper forum for the change is not on appeal but on application to the originating court.  Yet, Associate Chief Justice Rooke despite the matter of jurisdiction, varies sentence on this ground, not because of s. 161 but because the change in circumstance is a new joint submission proffered on appeal by two competent counsel. One can infer, as equally competent as sentencing counsel. Here, Associate Chief Justice Rooke finds himself between the proverbial “rock and a hard place”: on one hand, he outlined the difficulties of appealing a joint submission, the rarity of success, the limited circumstances it should be done, the sound policy reasons for not permitting such an appeal. On the other, he accedes to the new joint submission, not based on any principles of sentencing, but rather on a procedural availability not even within his purview on a strict reading of the section.

Perhaps, in the end, this pragmatic and experienced trial judge, sitting as a summary conviction appeal court, recognized that principles and rules do not always produce a just outcome. Perhaps, he agrees with the majority of the Alberta Court of Appeal in Gangl that the appellate court “is the last stop on the road to mercy” (see Gangl, Watson JA at para 21). Or perhaps, as initially suggested by Associate Chief Justice Rooke, the LSM decision may indeed be all about the “sanctity” of the joint submission, in whichever forum it is offered and in whatever circumstances it arises.

 

Episode 44 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 49 – Alarming The Queen

In this episode, we are still considering Offences Against Public Order involving treasonous conduct. Section 49 prohibits acts tending to alarm Her Majesty or acts that break the public peace. The section reads as follows:

Every one who wilfully, in the presence of Her Majesty,

            (a) does an act with intent to alarm Her Majesty or to break the public peace, or

            (b) does an act that is intended or is likely to cause bodily harm to Her Majesty,

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

The purpose of the section is to protect The Queen from harm, alarm, or even a rowdy crowd. This is a serious offence: Those who are found guilty under the section face up to 14 years incarceration. Although the fault element is clearly subjective, the word “wilfully” does not necessarily denote a high level of intention to be proven and may include the lower level of subjective mens rea of recklessness. That argument is strengthened by subsection (b) which requires that the accused either intend to cause bodily harm or does an act that is “likely” to harm The Queen. This likelihood requirement suggests foresight of risk to the prohibited consequences including recklessness. Alternatively, the section can also be interpreted as to require full subjective intention for an offence under s. 49(a) and a more general form of intention, including recklessness, for a 49(b) offence. This interpretation is supported by the requirement in (b) for the more serious and direct harm to The Queen. However, the sanction is as severe for both prohibited acts. Considering, the offence is listed under s.469 as within the exclusive jurisdiction of the Superior Court, an argument could be made that only the highest level of intention will fulfill the mens rea requirements for both subsections.

To fulfill the actus reus requirements, the accused would have to commit the prohibited acts in the “presence” of Her Majesty. Although this term suggests a face to face encounter, mere presence may mean the accused need only be in the general area.  If that is the interpretation, again, relying on symmetry between the actus reus and mens rea, the accused would have to be aware The Queen was also present at the time of the prohibited acts.

Under (a), the prohibited act is “alarm” or “break the public peace.” Alarm is not defined under the Code, but the term does appear in other sections such as s. 372, the offence of false information. We will on another occasion discuss that section more thoroughly but the wording in s. 372 is similar to s. 49. Under 372 (1), the accused must intend to injure or alarm a person by conveying false information. Notice there is no requirement the accused act “wilfully.”  Under subsection (2), the accused must intend to alarm or annoy a person by making an indecent communication.  This offence is a dual offence, punishable by summary conviction or indictment with a sentence of 2 years less a day (meaning an accused who receives the maximum sentence will be sent to a provincial institution as opposed to a federal institution, which requires a sentence for two years or more). Clearly this offence is viewed as less serious than alarming the titular head of state. Again, this increase in penalty for s. 49 is consistent with the concern with treasonous activities. The other section in the Code, requiring “alarm” is s. 178, in which the accused possesses, throws or injects an offensive volatile substance that is likely to alarm, inconvenience, discommode or cause discomfort to any person or to cause damage to property. According to the dictionary, “alarm” means “a sudden sharp apprehension and fear resulting from the perception of imminent danger.” It seems alarming The Queen means much more than merely surprising her.

The section also prohibits the accused from breaking the public peace in Her Majesty’s presence. The phrase “break the public peace” is unique to the section but the term “public peace” is used elsewhere. “Public peace” is found in s. 88, which prohibits the possession of a weapon dangerous to the public peace. It is also used to describe the duties of a peace officer under s. 2, as someone who “preserves and maintains” the public peace. In the 2004 Supreme Court of Canada Kerr decision, the concurring judgment of Justice Lebel (with Justice Arbour) defined “public peace,” in the context of s. 88. The phrase was an ancient one, referring to the King’s Peace as defined in the 1888 Volume 7 of Murray’s New English Dictionary of Historical Principles, the precursor to the Oxford Dictionary. There, the King’s Peace is defined in a more general sense as the “general peace and order of the realm, as provided for by law.” Hence, the term “keep the peace and be of good behaviour” as found as a condition in common law peace bonds. In Kerr, Justice Lebel preferred a more restrictive meaning to ensure the offence was not overbroad and to relate the phrase to the modern realities of society. Therefore, a breach of the public peace under the Code contemplated actual harm done to a person or harm likely to be done as a result of a disturbance.

Also, as mentioned earlier, this section is a s. 469 offence and within the exclusive jurisdiction of the Superior Court. Like a murder charge, another s. 469 offence, if a person is charged with this crime, the bail hearing must be before a superior court judge. At the accused’s first appearance before a provincial court judge or justice of the peace, the accused would be detained in custody pursuant to s. 515(11) of the Code to be dealt with thereafter in the superior court. Under s. 522, the burden is on the defence to apply for bail and show cause why release is warranted. This is an exception to bail principles and the Charter right under s. 11(e), which presumes release of the accused unless the Crown shows cause for detention. The trial must also be heard before the superior court judge and jury per s. 471, unless the accused and the Attorney General consent under s. 473 to trial by superior court judge sitting alone.

There is no Canadian case law relating to this section. Historically, the section was broader and in the 1892 Code was entitled “assaults on the Queen.”  This original section did require that the accused act “wilfully.” Part of the punishment upon conviction in 1892 was “to be whipped, once, twice, thrice as the court directs.” This offence must be seen in its historical context: at this time there had been several assassination attempts against Queen Victoria. Indeed, the 1892 offence included specific prohibited acts, which parallel these attempts. For instance, it was prohibited to strike or strike at the Queen. In June 1850, The Queen was hit on the head with a short cane. Although not seriously injured, the accused, Robert Pate, was sentenced to 7 years of penal transportation to serve his sentence abroad in the Australian penal colony. In 1906, the offence remained virtually the same but was changed to “assaults upon the King.” The present iteration was from the 1954 Code amendments. Most likely, this section will be changed yet again when King Charles ascends the throne or it may be seen as an archaic section, not worth retaining considering there are other sections in the Code, which would suffice. In any event, this section should be reviewed as part of Criminal Code reform.

For further discussion on the criminal law as seen through “Her Majesty,” read my previous blog entitled In The Name Of Her Majesty’s Criminal Law.

Next podcast, we will continue with the treason theme and discuss s. 50 prohibiting assisting an alien enemy to leave Canada or omitting to prevent treason.

Episode 43: Section 46 – It’s High Time To Talk About Treason – The Ideablawg Podcast on the Criminal Code of Canada

We are now moving our discussion into Part II of the Criminal Code relating to Offences Against Public Order. This Part stretches from s. 46, the subject of this podcast on Treason, to s. 83 on Prize Fights. It is, as you can imagine, a Part dedicated to rambunctious and seditious behaviour, which may impact the community peace and tranquility. It is conduct that covers the high seas, as in s. 74 piracy, as well as the earthy depths, as in s. 70, unlawful drilling. In short, this Part is a panoply of misbehaviours, originating in our historical English common law past yet may still be relevant today albeit in a more modern guise.

So let’s start this podcast with the first three sections: 46, 47, and 48 as they all relate to the offence of treason. These sections are entitled “Treason and Other Offences Against the Queen’s Authority and Person.” A quick glance at the first section 46 tells us that it refers to two offences: high treason, in subsection 1, and treason, under subsection 2. Those sections read as follows:

S. 46(1) Every one commits high treason who, in Canada,

(a) kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her;

                        (b) levies war against Canada or does any act preparatory thereto;  or

(c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.     

(2) Every one commits treason who, in Canada,

(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;

(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);

(d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or

(e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act.

Just what the difference is between high treason and treason should be evident by reviewing the conduct captured by each subsection. The punishment section 46 also tells us that high treason is considered one of the most serious offences in the Code as as it is an indictable offence punishable by life. Treason, on the other hand, is considered on par with high treason in certain circumstances, such as in offences committed under s. 46(a)(c) and (d). If Canada is in “a state of war” against another country, then the offences under s. 46(b) and (e) are also punishable by life imprisonment. Otherwise those offences carry a maximum punishment of fourteen years incarceration. It appears then that in some respects, other than the type of conduct captured, treason and high treason are very similar.

Perhaps at this point, in order to better understand why the offences need to be labelled differently and why the section could not just refer to treason only, we should take a walk down memory lane and look at the historical antecedents of this crime. As with so many of the crimes in our Criminal Code, the crime of treason comes to us from the English common law. However, the concept of treason, or the betraying of one’s country, is very old indeed. The word “treason” can be traced from the Latin word tradere, which means “to hand over” or “surrender.” From this word came the Old French word “traison,” which means treason but is also connected to the Old French verb “trair” meaning to betray. Interestingly, the word “tradition” is also derived from the original Latin root. In essence, as explained in the 1947 article on the subject by S. C. Biggs entitled “Treason and the Trial of William Joyce,” treason is an act of betrayal against one’s country or a breach of allegiance. It is not, however, an act of disloyalty, as Biggs points out, as it is not a crime based on an omission to act. Treasonable conduct does not include a failure to sing the national anthem at a hockey game but does include “certain positive acts which strike at the foundation of the state.”

Treason, in its purest or “highest” form, was, at the time of the introduction of the Criminal Code in 1892, a most serious crime attracting the ultimate punishment of death. Indeed, one convicted of the most serious type of treason was “liable to suffer death.” Conversely, a person convicted of murder, which in the 1892 Code was also a capital crime, was merely “sentenced to death.” While someone convicted of piratical acts with intent to commit violence was also “liable to suffer death.” What import, if any, this difference in language suggested is open to interpretation. A quick look at the internet site of dictionary.com reveals that the term “suffer” can mean “to undergo a penalty, as of death” and the sentence example is “the traitor was made to suffer on the gallows.” How or why this is the example offered is perhaps, something for us to think about. At the very least it underlines the severity and ignominity connected to the crime of treason.

Returning to the 1892 version of treason as found under the then sections 65 to 69, there is a distinction between treason and treasonable acts, which are viewed as less serious and punishable therefore by life. The distinction we now have, between high treason and treason, was effected in the 1974 Code amendments. However, “high” treason was a 12th century concept, an act of betrayal against the king, as opposed to “petit” treason, which was an act of betrayal against a person of lesser stature but still deserving of obedience. These “petty” treasons consisted of breaches against the social order, as in the murder of a lord by his servant or even a murder committed by a wife against her husband. Although the most recent iteration of the offence retains the “high” treason concept, thankfully the petty treason is no longer a valid label. However, the question still remains whether or not even today’s concept of high treason or even treason, is a valid response to acts of public betrayal, particularly in an environment where we now have in the Criminal Code offences of “terrorism.” Another overarching question we must ask is why we need so many differing offences for acts, which may be better understood as coming under the umbrella of more general offences such as counselling and conspiracy to commit murder. 

Leaving the public policy and law reform issues aside for another day, I would like to look at the offence as a charge before the courts. A quick search of Westlaw reveals only a few criminal cases involving the offence of treason. One of the most famous cases is, of course, Louis Riel and specifically the 1885 Privy Council decision refusing leave for Riel to appeal the conviction for treason and the sentence of death. But along side this case are others involving lesser personalities. Most involving wartime actions, such as Israel Schaefer, convicted of treason as a result of enabling people to travel to Austria-Hungary, “a public enemy,” during World War I and assist that country in their war effort. In that 1919 case, the Supreme Court of Canada, refused Schaefer the right to appeal as the decision convicting him was “so clearly right that an appeal from it would be hopeless.” In fact, most reported cases of treason tend to be those prosecuted during that time period.

It must be noted that with the advent of terrorism offences in the Code, there is a renewed prosecution for offences, which involve an aspect of treason or betrayal against the person’s home country. For example, in the 2014 Alizadeh case, Justice McKinnon of the Ontario Superior Court commented, in sentencing the offender to 24 years imprisonment for terrorist acts involving the possession of explosive materials, that Alizadeh “betrayed the trust of your government and your fellow citizens” and had “effectively been convicted of treason, an act that invites universal condemnation among sovereign states throughout the world.” In this modern concept of treason, the act of “war” is diffused as it becomes any act or omission, as defined by s. 83.01 of the Criminal Code, which compels a government to do or refrain from doing an act. 

Before I end this podcast I do want to mention other aspects of the crime of treason, which is peculiar to that particular offence. Section 46(3) makes treason by a Canadian citizen or “a person who owes his allegiance to Her Majesty in Right of Canada” a crime even if it is committed outside of Canada. Similar wording is used in the Security of Information Act to deem certain persons having committed an offence in Canada even if the acts or omission occurred outside of it.

Section 46(4) declares that an act of conspiracy to commit treason is an “overt act” of treason. That subsection is in answer to 46(2), which requires an overt act in furtherance of the treason. This requirement is not always needed for conspiracy in Canada but can be an evidentiary requirement in American conspiracy jurisprudence – see United States v. Skillman, 442 F. 2d 542 (1971). The section clarifies that treasonable conspiracy is an overt act for the purposes of the section. This nomenclature is consistent with treason from the English common law and with the offence of treason in the 1892 Code.

Section 47(3) suggests one cannot be convicted of treason based on the evidence of one witness alone unless the witness is corroborated “in a material particular” by other evidence in the proceeding. Corroboration is also a common law requirement carried into our Criminal Code and is a concept, which recently has fallen away, such in the case of a child witness (see s. 659) or in a sexual assault (see s. 274). However, corroboration is still required for a perjury offence (see s. 133) and for procuring a feigned marriage (see s. 292).

Another unusual requirement is the limitation periods under section 48. Proceedings for treason under 46(2)(a), which is the using of force or violence to overthrow the government, must be commenced within three years from the time when the offence is alleged to be committed. Originally, this limitation applied to all treasonable conduct other than treason where there was an attempt to kill or injure her Majesty or the person did kill or injure the sovereign. The final limitation is from the original Code version requiring that “No proceedings shall be commenced under section 47 in respect of an overt act of treason expressed or declared by open and considered speech” unless an information setting out the overt act and words is laid within 6 days after the alleged words were spoken and a warrant for the accused’s arrest is issued within 10 days after the laying of the information.

These “oddities” are in place to highlight the uniqueness and rarity of the offence. The fact treason is not viewed as a “modern” crime, raises the question of law reform and a removal of the offence from the Criminal Code as those acts underlying the crime could be dealt with through other more general charges in the Code. This argument will have more weight considering the advent of the terrorism offences and the sweeping applicability of those offences when viewed in contrast to the treason sections. Whether this fact will be used in any future Charter argument will remain to be seen but as it stands, treason is a part of our history and a part of our present as found in our Criminal Code

Riesberry – Does It Get Past The Post?

Fraud has been around for centuries. So has the concept of cheating at play. In R v Riesberry, the Supreme Court of Canada attempts to put 2 and 2 together, so to speak (albeit randomly!), to clarify the meaning of “game” under s. 209, which criminalizes “every one who, with intent to defraud any person, cheats while playing a game or in holding stakes for a game or in betting.” Game is defined under s.197 as a “game of chance or mixed chance and skill.” What was at issue in Riesberry was the favourite Ontario pastime of horse racing and Mr. Riesberry’s penchant for winning. In this case, winning by drugging two horses. Although the Court defined “game” as including a horse race, in my view the more interesting aspect of the decision is the Court’s comments on the fraud charges and what I will suggest is a failure to fully integrate criminal law principles.

Justice Cromwell, speaking for the unanimous court (although the case was not heard by the full panel of judges but of a smaller panel of 7), essentially relied upon previous SCC decisions on the actus reus requirements of fraud, specifically Olan (1978) and Theroux (1993) and the companion case Zlatic. The actus reus for fraud is comprised of two parts as per section 380, an act of “deceit, falsehood, and other fraudulent means” coupled with, according to Theroux and Zlatic, a deprivation “caused by the prohibited act,” which may result in an actual loss or a risk to the “pecuniary interest” of the victim. In the earlier decision Olan, the court expanded on the phrase “other fraudulent means” by defining it as any act “which can properly be stigmatized as dishonest.”

Before we move onto Justice Cromwell’s position, let’s unpack the significance and the impact of the Olan and Theroux/Zlatic decisions.

First, Olan, an Ontario case about a substantial fraud involving a convoluted fact scenario of companies within companies. However, as Justice Dickson (pre-Chief Justice days), on behalf of the full Court, astutely reminds the reader “One of the dangers in this case is the risk of being overwhelmed by factual minutiae. Superficially, the facts are complicated. Stripped of unessentials, it is clear what took place.” Of note is the manner in which this decision is structured, with a full recitation of the relevant law before the facts of the case are outlined. Clearly, according to Justice Dickson, the facts are not the issue as the lower court should have realized, this is an “easy” case of fraud. Hence the broad definition of “other fraudulent means,” which nicely concurs with Lord Diplock’s assessment in the House of Lords Scott decision, three years earlier. In Scott, Lord Diplock gave a generous definition of the phrase by suggesting “other fraudulent means” can involve “dishonesty of any kind.” Justice Dickson, approved of this passage and Justice Cartwright’s earlier 1963 decision in Cox and Paton to arrive at the now oft quoted meaning of the phrase as found in s. 380 as “not in the nature of a falsehood or a deceit” but acts that can “encompass all other means which can properly be stigmatized as dishonest.”

Although Justice Dickson also discussed the further actus reus requirements of deprivation, this aspect was thoroughly canvassed in the Theroux/Zlatic cases. Theroux is one of those great cases indicative of the unsettled Court of the early 1990s. Rendered in the 1993 when the Court grappled with the meaning and content of mens rea in light of the subjectivity principle and the objectivity “creep” from the driving cases of Hundal and the manslaughter decision in Creighton.  This was a time when the Court’s decisions were visceral and driven by ideology, when members of the Court aligned themselves both with other members of the Court and against other members of the Court. To prove my point just read the following SCC cases rendered that year: Cooper on the “slightly relaxed” intention found under s. 229(a)(ii) murder,  as previously mentioned Hundal and Creighton, and three further cases on the presence of objective criminal liability in Naglik, Gosset, and Finlay. Not only was mens rea on the Court’s mind but also an expansion of evidential and procedural rules as in KGB, Plant, Wiley, Grant, Levogiannis and Osolin as well as the meaning of s. 7 of the Charter as in Rodriguez and Morgentaler.

It is in this context that Theroux was decided with 3 decisions which concurred in the result:  from Justice Sopinka (with Lamer, CJ), Justice McLachlin’s majority decision (with LaForest, Gonthier, and Cory JJ.) and Justice L’Heureux-Dube’s own decision. The fragmented decision is connected to the companion Zlatic case where Justice Sopinka and the Chief Justice dissented as stated in the opening parargraphs of Theroux, because “there are several issues in my colleague's analysis of the law of fraud with which I have difficulty.” One of these “issues” involve the tension between objective and subjective mens rea and the Court’s inability to envision how the traditional criminal law world would look when that Pandora’s box containing an objective form of liability is opened. We are still feeling the effects of this conundrum today, which deserves another blog posting all together. In any event, Theroux is typically now quoted for Justice McLachlin’s (as she then was) clarification that mens rea signifies the guilty mind and does not encompass all of the mental element requirements of an offence as the actus reus too has a mental aspect requiring the prohibited act to be a voluntary act “of a willing mind at liberty to make a definite choice or decision” (See Taschereau J. in the 1962 King case). For our purposes, however, Justice McLachlin reiterated fraud’s actus reus as described in Olan with a reminder that Olan was a departure from precedent as it marked a broadening of fraud by removing the requirement for deceit and replacing it with a “general concept of dishonesty” to be objectively determined and by permitting deprivation to include a risk or “imperilling” of economic interest.

Viewing Riesberry in this context, we should not be surprised that the Court unanimously accepted this precedent and found the act of “cheating” to be an act worthy of criminal sanction. However, what should surprise us about the decision is how the Court treated the required causal connection between the dishonest act and the deprivation. Justice Cromwell easily made this crucial connection through the time-honoured “but for” test, wherein the trier asks “but for” the accused’s actions would this consequence have occurred or, as in this case, “it created the risk of betting on a horse that, but for Mr. Riesberry’s dishonest acts, might have won and led to a payout to the persons betting on that horse.” This “risk of prejudice to the economic interests of bettors” provided a direct causal link required to prove the actus reus of the fraud.

Although to Justice Cromwell this linkage was elementary, the decision on this issue is disquieting. Causality in criminal law has received much attention by the Supreme Court of Canada.  It has been a particularly difficult issue in cases where there may be multiple causes or, as in Mr. Riesberry’s case, there is a temporal issue. Causation is also a civil law concept, arising in tort cases. Like the tension between subjective liability, a traditional criminal law precept, and objective liability coming to criminal law from the regulatory or civil arena, the concept of “criminal” causality has been a long-standing subject in criminal cases.  

The question of factual causation or the “but for” test referred to and applied by Justice Cromwell has indeed been straight forward and easy to apply. But the issue of legal causation, the concept of culpability and where the criminal law should draw the line has been less easily determined. Legal causation sees the “but for” but wants to know to what degree is the accused the cause and is it sufficient to attract the full force of the criminal law. This was the issue in Harbottle, where the degree of causation required in a first-degree murder charge was considered, and interestingly enough was decided in 1993 when Theroux was considered. It was also the issue in Nette where second-degree murder was considered and the entire concept of criminal causation was considered. To attract criminal culpability not only must the “but for” test be fulfilled but the actions of the accused must also be a “significant contributing cause” of the consequence. Since Nette, this legal test has been applied such as in the recent case of Maybin involving a manslaughter. Not only did Justice Cromwell not enter into this legal analysis, he did not even mention its existence. Considering fraud is akin to theft in that it is a “true crime,” which attracts stigma upon conviction, the legal concept of causation should have been considered even on these facts.

Had it been considered, the final analysis may very well have been the same but the case, left as it is, seems unfinished. Without getting into it, another area of disconnect in this decision is with the concept of deprivation as a “risk” as opposed to an actuality. This position seems consistent with previous decisions of the court such as Mabior and Hutchinson as it related to fraud vitiating consent under s. 265(3). Again, no analytical connection is made here. This also seems decidedly “unmodern.”

As early as 1990 (see Starr v Houlden), the Supreme Court of Canada had begun to embrace the “holistic approach” to law, refusing to be pigeon-holed by the past (specifically see paragraph 16 of the 2011 Sarrazin case and approval of this concept as recommended by Moldaver, J.A., as a then dissenting voice in the Ontario Court of Appeal decision). This recognition and desire for integration has also seen traction in the broader societal context. Riesberry, by failing to integrate principles and make these holistic connections, leaves us to consider the pieces of the puzzle instead of the picture as a whole.

 

 

Episode 42 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 45 & Surgical Operations

In the last episode, we discussed the protection granted to a parent, guardian, or teacher when reasonable force is used to correct a child or pupil. Under the same rubric of “Protection of Persons In Authority” is section 45, which permits, under certain circumstances, the use of force required to engage in surgical operations. The purpose of this section is twofold: first, it provides protection to those operating on an individual who may not be in a position to consent to the use of force required in an operation. The second purpose, is to provide an exemption from the common law rule, as per Jobidon, that no one may consent to bodily harm and a similar exemption from s. 14 of the the Criminal Code, in which no one may consent to death. As an aside, s. 14 will soon be amended to permit assisted death in accordance with the ruling in the Carter case. 

Section 45 reads as follows:

Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if

            (a) the operation is performed with reasonable care and skill; and

(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.

Historically, this protection has been in the Criminal Code since the Code’s inception. In fact, the 1892 version is very similar in wording to the present day provision. Notice this section does not apply to health professionals only. Rather it speaks of “every one” or any person who performs a “surgical operation.” However, the protection only extends to those individuals who perform the operation with “reasonable care and skill.” Presumably, a person who is not a health professional or even arguably a person who is not trained in performing such an operation would not be using “reasonable care and skill.” I will discuss a case below where this concept was at issue. In any event, having that expertise is not sufficient as it must be reasonable for the operator to perform the operation. To determine reasonableness, the trier of fact must consider the state of health of the person at the time of the operation and all the circumstances surrounding the event. Further, the operation must be to the “benefit” of the individual.

Echoing the protection afforded by s. 45 is the incumbent legal duty under s. 216, requiring those who undertake to administer surgical treatment, which may endanger life, to use all reasonable care and skill. This section will, of course, be discussed more fully at some later date. Additionally, s. 217 is engaged as it depicts a broader duty requiring everyone who undertakes an act as under a legal duty to do it if an omission to act may be dangerous to life. Once, therefore, there has been a commitment to perform the act, the person is under a duty to complete the act if a failure to proceed may result in serious harm. A surgeon cannot simply walk away from the surgery. However, there is debate over the possible chilling effect an isolated reading of s. 217 might produce as surgeons are often required to decide during the course of the operation whether or not continuing such a procedure is in the best interests of the patient. Certainly there is an argument to be made that sections 45, 216, and 217 should be read one with the other to give appropriate context and to ensure surgical procedures are carried out in a timely and considered manner but also in light of the realities of life and death decisions.

Turning back to the possibility surgery is not performed by a health professional, this scenario was at issue in the SCC 2012 DJW decision. The accused was charged with criminal negligence causing bodily harm, assault with a weapon, and aggravated assault, as a result of performing a religious circumcision on his four-year-old son, at his home, without the assistance of a doctor or a circumcision specialist. His son suffered serious injuries necessitating hospitalization and surgery. The British Columbia Court of Appeal, in dismissing the conviction, concluded that the “force” used, as in the surgery conducted on the child, was not reasonable in the circumstances. Although the case provided an opportunity for the Supreme Court of Canada to comment on whether or not it was ever reasonable for a person without medical training to conduct a circumcision, the Court declined to comment, preferring to uphold the conviction in a very brief oral judgment.

Section 45 is a pragmatic section (see similar comments made by Chief Justice McLachlin in paragraph 55 of the 2011 J.A. case on s. 45), which is rarely referred to in case law and is applicable in limited circumstances. Yet it remains an untested section, particularly in the area of surgical procedures undertaken by non-health professionals. It is also a section worth watching considering the forthcoming changes to the common law prohibiting consensual death.

 

 

 

 

Episode 41 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 43 - Correction Of A Child

 

Section 43, correction of a child by force, is another section of the Code, which protects those people who use force in certain limited circumstances. Indeed, the heading for this section and the next section 45 is entitled Protection of Persons In Authority. Section 43, and for that matter s. 45, are not sections protecting peace officers but are designed to protect people who may use force as a result of a relationship he or she may have with the recipient of the force. In the case of s. 43, the relationship is parental or quasi-parental as between a child and a parent or a child and a schoolteacher.

Let’s read the section in full:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

I am sure many of you reading this or listening to this podcast might be a little surprised that this type of protection is in the Code. The idea of hitting a child, be it a parent or worse a teacher, seems out of step with the fundamental values of our society and a throw-back to when age-based relationships were construed as hierarchal and power driven. As we will explore in this podcast, the Supreme Court of Canada acknowledged these concerns but in the final analysis the Court found there is a place for such a section in the Code, albeit in limited circumstances. In this podcast, I intend to explore some of these issues, which might give us pause for thought in assessing whether this section is a relic of the past or not.

Section 43 was thoroughly canvassed in the 2004 Supreme Court of Canada case Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76. The opening statement of the majority decision, authored by Chief Justice McLachlin, speaks volumes on the essence of the defence:

The issue in this case is the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force in some circumstances without facing criminal sanction.

The phrase “minor corrective force” envisioned by the Chief Justice adds clarity to the Court’s characterization of the defence as permitting “reasonable physical correction.” Essentially, it is this formulation of the defence, equating “reasonable” with “minor” force, which saves the section and places the defence in a neat continuum of what is acceptable and was is not acceptable societal behaviour.

I will not go into the niceties of the s. 7 arguments in the case, although I highly recommend those listening to this podcast to read the full decision as the argument presented to the Court takes a fresh approach to the protections found under s. 7 through the perspective of the victims or recipients of the force, in this case children. It is highly illustrative of the unique and persuasive arguments, which are available under the Charter.

The case also highlights the emotive issues involved by viewing the constitutionality of the section through the lens of another legal phrase often conjured in cases involving children: the “best interests of a child.” In what manner this phrase applies in the criminal law context is an interesting discussion, which requires a full blog posting. In any event, as found by the majority, the concept may be a legal principle but at least in 2004, it was not a principle of fundamental justice as required for the application of s. 7.

Let’s turn to the essential requirements of s. 43, as interpreted by the Supreme Court of Canada. First, the section requires the force used to be for the purpose of correction/discipline. Such acts would be “sober, reasoned uses of force” that “restrain, control or express some symbolic disapproval” of the behavior. Although this element is understandable, the allowance for force to “express some symbolic disapproval” is a puzzling concept in the legal arena. Certainly the symbolic use of force is used in the broader context of military expression, such as retaliatory strikes. However, the symbolic nature of that force seems to be based on generating fear and domination over a populace. In the context of s. 43, it becomes difficult to envision force as a symbolic expression other than, as an example, an antiquated response to foul language – washing a child’s mouth out with soap or tugging on an ear to show disapproval. Whether or not this kind of symbolism can truly be viewed as “sober, reasoned uses of force” remains open to debate.

The second requirement, which takes the perspective of the recipient of the force, is the need for the child to benefit or learn from the forceful act. If a child is too young or developmentally challenged, use of force, even if for corrective purposes, is not appropriate and s.43 defence cannot be used.

Next, the Court must consider whether the force used is reasonable in the circumstances. The “reasonableness” of the force is delineated by reference to what is acceptable in society by looking at international standards and expert opinion. Again, corporeal punishment used on a child under 2 years of age is considered harmful, as may be such punishment on a teenager. The majority also considered force used to the head area as inappropriate. Additionally, using a belt or implement to apply force is unacceptable. In the end, reasonableness under the section is constrained by who is receiving the corrective punishment, the manner in which the punishment is being applied, and the target area of that force.

In the case of teachers, any type of corporeal punishment used - what comes to mind is the application of a ruler to the hand - is not reasonable force. Teachers, however, may need to remove a child or restrain one but any other force, even I would suggest “symbolic force,” is not acceptable.

In the end, the Chief Justice viewed the section as a necessity in the realities of family relationships when she stated at paragraph 62:

The reality is that without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute “time-out”.  The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

This above recognition of the limits of the criminal law, limits which we as a society desire and need in order to maintain our fundamental social constructs, really does define this section as it is presently applied. In fact, I represented a client who was charged with assault as a result of restraining a teen, who was acting violently and was under the accused’s care. It was this section, which provided the litmus test and ultimately resulted in his acquittal.

More controversial, however, is the use of the section where punishment is meted out on the basis of cultural or religious norms, which differ from “Canadian” norms. In those instances, what may be acceptable punishment in the accused’s social circle may not be acceptable in the broader Canadian view. In the dissenting decision of the Canadian Foundation for Children case, Justice Arbour raised this possible dichotomy in support of the position that the concept of “reasonableness” under the section is more of a moving target and less of an articulable standard. She commented in paragraph 185 that:

Corporal punishment is a controversial social issue.  Conceptions of what is “reasonable” in terms of the discipline of children, whether physical or otherwise, vary widely, and often engage cultural and religious beliefs as well as political and ethical ones.  Such conceptions are intertwined with how other controversial issues are understood, including the relationship between the state and the family and the relationship between the rights of the parent and the rights of the child.  Whether a person considers an instance of child corporal punishment “reasonable” may depend in large part on his or her own parenting style and experiences.  While it may work well in other contexts, in this one the term “reasonable force” has proven not to be a workable standard. 

Finally, I leave this podcast with a more esoteric or philosophical view. As touched on by the Chief Justice, the truth behind this section, and all of the sections, which justify the use of force, may not reflect the kind of society we truly want: we want a society free of violence and the threat of violence. However, the reality is that even our rule of law carries with it an aspect of violence. As Walter Benjamin opined in his “Critique of Violence,” not only is violence the means to preserving the Rule of Law, “Law-making is power-making, assumption of power, and to that extent an immediate manifestation of violence.”

This concept is further explored in Robert Cover’s electrifying article entitled “Violence and the Word,” which reminds us that whenever the justice system metes out punishment or even pronounces a judgment, a person is coerced to do something they do not want to do. In some instances the force is minimal, in others it involves a total loss of liberty. It is this use of force, which we try to contain, hoping its use will be based on reason and equity. Yet this “force” still remains part of what we would all consider a well-run society and fundamental to the justice system.

Section 43, albeit a seemingly simple defence is in reality a section, which causes one to re-think the meaning of force and its place in today’s society. It has been more than a decade since the Court has expounded on this section. As a result, it will be interesting to see how this section holds up to the ever-evolving societal conceptions of law’s function in our private relationships and law’s responsibility to protect vulnerable members of our society.

For more on Robert Cover, read my previous blog discussing his work here.

 

As Posted on ABlawg Website: Regina v Borowiec On Infanticide: Does the Crime Fit The Times?

The following blog also appears at the University of Calgary, Faculty of Law blog website at ABlawg.ca

In a few weeks the law school will be humming with activity as the newly admitted 1L students start learning the Law both in doctrine and in practice. One of the core first year courses is criminal law, which provides the future lawyer a realistic snapshot of the complexities of both areas. Here, in criminal law, they will not only gain knowledge of the prohibitions, rules, and procedures as found in the Criminal Code but also the interpretations and practices as found in Common Law. They will discover that criminal law is not about cut and dry legalese but is, at its core, about how we as a nation see ourselves and the kind of society we want to live in. It is also about ordinary people who are impacted by the decisions made by courts every day.

 

The key to understanding and appreciating criminal law is in the deeper discussion of the purpose of criminal law and why we as a society prohibit certain behaviors and not others. Sometimes this discussion of “why” is easy: we can agree that certain types of conduct such as stealing, murder, and assault are worthy of sanction. But we have a more difficult time in agreeing on what this prohibited conduct looks like and, therefore, what we should do about it. To answer these questions, criminal law jurisprudence considers all of these weighty issues in the context of the rule of law. It is this intersection of law and societal values, which makes criminal law so legally interesting and yet so socially conflicting. The recent decision in Regina v Borowiec, 2015 ABCA 232, from the Alberta Court of Appeal on infanticide is an excellent example of these tensions and the difficulty the courts have in harmonizing these issues.  It is also a stark example of the reality that in some respects our criminal law is clinging to the past and in desperate need of reform.

Although homicide has been “on the books” so to speak since the inception of our Criminal Code in 1892, infanticide came to us through a 1948 amendment, which mirrored earlier changes made to English law. The then s. 262(2), deemed a woman, who willfully caused the death of her newly-born child, not guilty of murder or manslaughter but of the newly created offence of infanticide if at the time of the act or omission “she had not fully recovered from the effect of giving birth” resulting in the “balance of her mind” being “disturbed.” Later, in a 1954 amendment, the offence was broadened by offering another reason for the “mind being disturbed” by conceding infanticide could also occur when the “female person” was not fully recovered from “the effect of lactation consequent on the birth of the child.” Additionally, the word “balance” in the phrase “balance of her mind” was deleted.

The 1954 amendments also added the now s. 663 of the Criminal Code, which was not found in the English legislation. This section ensures that if a woman was charged with infanticide but was not suffering from a mental disturbance and yet intentionally killed her child, she could still be convicted. This section is not in issue in the Borowiec case, however, as mentioned by Justice Doherty in Regina v L. B., 2011 ONCA 153 (at paras 84 to 87), the constitutional implications of this section are troubling and worth noting. What is of import is the wording of s. 663, which still retains the English legislative nomenclature requiring a disturbance of the “balance” of the mind. This slight but significant difference will be explored later as it impacts the Borowiec decision.

Infanticide is now one of the three ways homicide is culpable or blameworthy. Homicide or the killing of a human being is culpable when the conduct amounts to murder, manslaughter or infanticide as per the Criminal Code sections. Unsurprisingly, all three categories of homicide have similarities and differences in terms of: a) the conduct or actus reus required, b) the fault element or mens rea required, and c) the punishment imposed upon conviction. But, as with all related areas, it is difficult to parse the differences between them when the conduct is on the boundaries.

To assist in this discussion, lawyers and the courts look to the rule of law as established by precedent and informed by statutory interpretation. However, in the field of criminal law, this time-honoured legalistic approach must be further informed by the purpose or reason for using the criminal law in the context of the offence. In the case of infanticide, the conduct and fault element is difficult to ascertain and the section outlining the crime is mired in archaic language based on out of date policy and dated science. For instance, the concept of “lactational insanity,” which drove the English legislation as mirrored in our 1954 amendments, is straight out of the Victorian Age  and is no longer considered medically valid. When the crime does not fit the times it becomes hard to determine whether or not the crime reflects current societal interests and values.

These conflicting issues are clearly seen in the Borowiec case. According to the evidence, between 2008 and 2010, Meredith Borowiec was pregnant three times and each time she hid her true condition from her boyfriend, family and work colleagues. She gave birth, on her own, and subsequently abandoned each child in a garbage dumpster. Her actions came to the notice of the authorities when the last child was rescued from the dumpster. She was ultimately charged with two counts of second-degree murder and one count of attempted murder, to which she later entered a plea of guilty to the lesser offence of aggravated assault. At her murder trial, defence counsel raised infanticide as an alternative to murder, calling psychiatric evidence in support. The prosecutor also called psychiatric evidence to establish that the conduct did not amount to infanticide and was in fact murder. The trial judge reviewed the conflicting evidence in light of the Code provisions and case law and found Meredith Borowiec not guilty of murder but guilt of infanticide.

The case was followed closely in the media and attracted much attention. Upon her conviction for infanticide and the imposition of the total sentence before credit for time served of four and a half years, there was a public outcry with one journalist opining that it was “open season” on unwanted infants. Still other views showed sympathy for the accused, citing her mental health issues and lack of support while pregnant as mitigating factors.  In fact, infanticide, according to the literature in the area (see for example, Chapter 7 of the 2013 book entitled History of Infanticide in Britain, C. 1600 to the Present by Professor Anne-Marie Kilday), does provoke very stark conflicting public emotions and has done so for hundreds of years. In this context, the Borowiec decision provides a glimpse into the legal response to a very provocative social issue.

The Crown appealed the infanticide convictions and in a split decision, the Alberta Court of Appeal upheld the decision. On appeal, the court considered three grounds of appeal. Remember, this was a Crown appeal and according to s. 676 of the Criminal Code a Crown appeal can be based only upon issues of law. The first issue asked whether or not the trial judge erred in law in his application of the law of infanticide. The second somewhat related issue asked whether the trial judge erred in his assessment of the conflicting expert evidence. The third issue, which will not be discussed in this commentary, is whether or not the reasons of the trial judge were sufficient. Justice Cote and Justice MacDonald for the majority found that the trial judge did not err in his application of the law of infanticide pursuant to the requirements of the section. Although they found some problems with the assessment of the conflicting evidence of the expert witnesses, in their view the error was not a question of law but of fact and therefore could not form the basis of a Crown appeal. The dissent, authored by Justice Wakeling, disagreed with the majority on the first issue finding that in law the trial judge did err in his appreciation and application of the infanticide requirements as required by section 233.

The majority reviewed the history of section 233 and the roots of the offence in English law. In their view, Parliament enacted the section as a legal and social compromise. Prior to legislating the offence, a mother charged with the death of her newly born child would be charged with murder and faced a possible death sentence. As a result, specious acquittals occurred as the members of the jury were not prepared to send a mother to death for the crime, particularly if there were extenuating circumstances. However, these circumstances fell short of a disease of the mind and therefore could not amount in law to a valid s. 16 or insanity defence. In response, England initially enacted the Infanticide Act, 1922 and then after subsequent amendments, enacted the Infanticide Act, 1938, which carved out a singular offence within the homicide spectrum. For an excellent and erudite discussion of infanticide’s historical beginnings, see Justice Doherty’s opus in R v L.B. (at paras 64 to 104). In this historical survey Justice Doherty explains the intricate Canadian infanticide experience by tracking the various amendments made to the now s. 233 and the other complimentary sections such as s. 663.

Upon review of the historical purpose and changes to the section, the majority listed the applicable elements of the offence or as in the Borowiec case, what was raised by the defence as a possible lesser verdict predicated on the evidence. The court described the requirements of the section that the accused a) be “not fully recovered,” b) that “her mind was then disturbed,” and c) that the disturbance be from the “effects” of childbirth or by the reason of “lactation” as “extremely woolly” (at para 31) and not representing “established” medical terminology.

It is in the legal application of the section, specifically the requirement the accused’s mind be “disturbed,” which the Court of Appeal focused on in addressing the first issue. In other words, does this term “disturbed” reflect an articulable standard and if it does, what does that standard look like as a legal principle? Put another way, what is the extent to which the accused must be “disturbed” in order to fulfill the prerequisites of the section? This problem – where to draw the line in criminalizing conduct – is a familiar one in criminal law. For instance, in the case of negligence based crimes, the courts spent decades trying to determine the appropriate level to which an accused must be negligent, finally coming to the “substantial and marked departure” from the norm as the test for the offence of criminal negligence under s. 219 but preferring a lesser standard of “marked departure” for other negligent based offences. But where does infanticide reside in the continuum of murder, manslaughter, criminal negligence and accident? More specifically, how does the “disturbed mind” requirement impact this discussion?

Added to the difficulties of delineating boundaries between differing conduct is the argument made by the Crown on appeal that what infanticide requires is not just evidence that the accused mind is disturbed but rather evidence that the “balance” of her mind was disturbed, which, in the submission of the Crown, suggests a higher standard than a mere disturbance. This argument is based on a rather puzzling aspect of the infanticide related sections. Although the infanticide section itself, pursuant to s. 233, refers to “disturbed” only, other related sections such as s. 663, the assessment order section 672.11(c), under the “Mental Disorder” Part XX.1, and s. 672.21(3)(d), also under Part XX.1, refer to the “balance of the mind” in relation to infanticide. Although the Part XX.1 sections are fairly recent, in the Criminal Code sense, having been enacted in 1991, s. 663 was added to the Criminal Code in the 1954 amendments, which also deleted the reference to “balance of her mind” in the infanticide section s. 233.

The majority deftly rejected this argument, finding, in paragraph 50, it was “unlikely that Parliament intended any significant difference” between the two phrases. In the Court’s opinion, it would make no sense to require a different standard for these sections and as Parliament has had ample opportunity to fix the difference in language, it must mean there is no difference.

Although the Court does not delve into the niceties of the difference in language found in the various sections, still a more robust application of the principles of statutory interpretation would have been in order. For example, the word “balance” does connote an ability to remain in control or have “mental and emotional steadiness” as per the Merriam-Webster definition and as understood by the related term of being “off-balanced.” Additionally, the UK legislation retains the phrase “balance of her mind.” The Court did not discuss the significance of this or the impact of this phrase in the English context.

Of course, besides the possible different legal meaning the addition of the word “balance” could have, it is likely the Crown had another reason to pursue the importance of the word. The Crown’s forensic psychiatrist at trial relied upon the term, “balance of her mind,” and the trial judge pointedly corrected the nomenclature as not consistent with s. 233. No doubt the psychiatrist was more comfortable with the usage of the phrase as it related to the assessment sections of the Criminal Code rather than the offence section and does illustrate the confusion the different wording invokes.

In any event, the majority preferred to defer to Parliament to lend any further guidance on the issue. The best the majority could do was recognize the “need for some standard” (at para 53) and quote approvingly from a 2003 Alberta Queen’s Bench decision in R v Coombs, 2003 ABQB 818 at para 37, wherein the trial judge found that Parliament set “a very low threshold, certainly far below … not criminally responsible.”

Although the Court recognized the imperfections of the offence/defence of infanticide, in the majority’s view it was Parliament’s responsibility to create criminal law and not the courts’ purview even where the law in the area was “woolly.” In fact, the Court suggests the use of “vague language” in the section assists the trier of fact in coming to a “just” decision as the ambiguity gives the trier and the Crown “elbow room and several hints.” Indeed, the majority opined at paragraph 88 that:

The only way to find an error which “involves a question of law alone” would be to make new law and interpret one or more of the woolly words or phrases in section 233 more narrowly, injecting a good deal of the Court of Appeal’s own analysis and philosophy. In view of the history, that would override Parliament’s decision to do the opposite.

Clearly, the Court was unable (or unwilling) to reconcile the social, political, and policy issues with the rule of law.

Justice Wakeling’s dissent, on the other hand, does attempt to articulate a judiciable standard. He set the standard, using child welfare nomenclature, requiring (at para 98) the disturbance to be at a point where the woman’s “ability to make rational decisions which promote the best interests of her newly born child is substantially impaired.” He came to this “benchmark” by also recognizing that a “disturbed” mind provided an unclear marker for infanticide. In his view, (at para 140), as infanticide was a form of homicide and therefore a serious offence, “Parliament intended infanticide to assist only mothers who have a substantial psychological problem.” He too recognized that this degree of mental disturbance must be less than the level required for a finding of not criminally responsible, yet more than a mother who is merely facing “problems which most mothers of newborns face.” (at para 140).

In coming to the standard as earlier stated, Justice Wakeling “considered a number of possible solutions” (at para 148) and found, based on his review of the Code, two controlling “traits” of women “with a disturbed mind.” (para. 149) First, commensurate with the classification of the offence as a homicide, the “mental health” of the woman must be “substantially compromised.” (at para 150) Applying this, Justice Wakeling came to the decision, in paragraphs 151 to 152, that therefore “baby blues” or “postpartum blues syndrome” as a transient and “mild” form of depression would not fulfill this first trait.  At the other end of the spectrum, a woman suffering from postpartum psychosis would fulfill this requirement. Within this range, would be postpartum depression. According to Justice Wakeling, (at para 155), “Some women with the more severe presentation of this mental health condition may meet the first test.”

Second, Justice Wakeling, (at para 157), requires the “substantial” mental health condition to “substantially impair the mother’s ability to make rational decisions which promote the best interests of her infant.” As previously mentioned, this part of the “test” seems to be based upon a common consideration in the child welfare or family law arenas (see Young v Young, [1993] 4 SCR 3). Whether such a concept or test is appropriate in the criminal law context highlights the difficulty in crafting a rule based on impermissibly vague legislation. In any event, Justice Wakeling gave no indication as to the genesis of this part of the test.

Although Justice Wakeling does attempt to create an articulable test, he does so by changing the legal test into a medical one. In fact, he relied heavily upon the DSMR or the Diagnostic and Statistical Manual of Mental Disorders, which attracts much controversy and criticism within the medical and psychological professions. (For example – see Chapter 7 of Clinical Psychology by Andrew M. Pomerantz). As a result, this test as fashioned necessitates a trial by experts and puts too much faith in the infallibility of science. As a stark reminder of the fallacy of this belief, we need only look to the Goudge Report (Inquiry Into Pediatric Forensic Pathology In Ontario Report authored by Justice Goudge and released October 1, 2008) and the miscarriage of justice occasioned by the courts accepting an expert’s evidence on the ultimate issue of guilt or innocence.

Further, this medically driven test seems contrary to the development of the law in the area of not criminally responsible, where the courts, starting with R v Stone, [1999] 2 SCR 290, so carefully crafted a holistic test based on legal principle and factual findings and not on a closed compendium of “established” medical disorders. Finally, Justice Wakeling’s test imposes a much too stringent standard. By using the qualifier “substantial,” the test does not reflect the mens rea required for the offence, which according to Justice Doherty’s well-reasoned comments in L.B. (at para 121), must include an objective foreseeability of bodily harm. In Doherty, J.A.’s view, it is the “unique actus reus” which distinguished infanticide from murder or manslaughter.  To imbue the actus reus with such a high threshold would be inconsistent with Justice Doherty’s conclusion.

In the final analysis, what is clear from this case is that it is an example of a law which needs to be clarified by the Supreme Court of Canada, not because the ultimate decision of the majority in the Court of Appeal was in error and not because the reasons in dissent were correct, but because “woolly” laws, whatever the underlying social issues may be, are not legally valid. Although, in this case, the accused was acquitted of murder at first instance, which went a long way in ensuring the appeal would be dismissed, imagine a different scenario, where a woman is convicted of infanticide on the basis of an ambiguous law, clearly contrary to the crucial principle of legality so finely defined and generously applied by the Supreme Court of Canada, not to mention the Charter values at risk. This risk is most palpably seen in the majority’s final statement on the issue at paragraph 89 when they state the ultimate reason for leaving the offence “as is” was because to do otherwise might “simply produce more outright acquittals, either directly or via fewer charges of infanticides. That result would be as paradoxical as the pre-1948 situations and following much the same route.” Never mind this position reflects a state of the law and the state of science and social policy long since gone, but by failing to address the real legal issues arising from infanticide on this basis, the court is not simply deferring to Parliament but deferring to the status quo. On the other end of the spectrum, the dissent offers an alternate reading, which is too categorical to meet the “unique” needs of the section.

As Justice Fish stated in the Levkovic decision, [2013] 2 SCR 204, a case considering the related offence of concealing a body of a child, (at para 32):

“The doctrine against vagueness is founded on two rationales: a law must provide fair notice to citizens and it must limit enforcement discretion.  Understood in light of its theoretical foundations, the doctrine against vagueness is a critical component of a society grounded in the rule of law.” 

The Borowiec decision is unsatisfactory precisely for this reason: uncertainty and arbitrariness, for whatever reason, should not be the basis of a criminal conviction. Although criminal law provides a glimpse into society’s concerns, it also highlights the enormous burden the law may shoulder in order to ensure a fair and just community. Difficult questions such as what kind of society we want may not be easily or fully answered by the rule of law but at the very least it can provide a safe place, a fair forum, in which we can test the boundaries.

True, the original rationale for legislating infanticide was based on spurious decisions driven by the harsh realities of the death penalty. The courts must step away from the past and take a hard look at the viability of the offence given the present state of the law and the societal values we share. A lesson may be drawn from England, where there have been a number of court-driven law reform initiatives on the subject from both the legal (see the 1975 Butler report on Mentally Abnormal Offenders from 1975 and the more recent Law Commission report on Murder, Manslaughter and Infanticide from 2006) and medical perspective (see the Royal College of Psychiatrists Working Party on Infanticide from 1978). Other Commonwealth countries have joined this movement towards change in this area, such as Australia (see the 1997 Report on Partial Defences to Murder: Provocation and Infanticide). Indeed, new research suggests there is not one category of infanticide but many subcategories such as neonaticide, typically committed by sexually inexperienced teenagers. Furthermore, the gender specificity of the offence, unique in the Criminal Code, lends more voices to the discussion as some critics of the law pan the offence as criminalizing motherhood while other critics suggest the offence fails to adequately address those unique gender issues. Throughout this discourse, one thing is clear, we need the courts and our lawmakers to take a hard look at infanticide and provide legal and social guidance. Who knows, this may even be an opportunity to look deeper into the “why” of our Criminal Code with a critical eye to reform. Nevertheless, infanticide is just one example of the need to reform our laws to align with our present and act as a model for our future. Indeed, society expects the crime to reflect the times.

 

 

 

 

Episode 40 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 35 - Defence of Property

Defending property is an ancient activity. The concept goes hand in hand with the old adage that a person’s home is his or her castle. That proverb became a legal principle, known as the “castle doctrine,” when Lord Coke commented in Semayne’s Case (1604), 77 E.R. 194 (K.B.) “that the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.” Therefore property, land, and defence are inextricably intertwined both socially and legally.

As mentioned in the previous podcast, the defence provisions underwent a complete make over in 2013 resulting in a pared down defence of property section. Section 35 is a lengthy section and is as follows:

       (1) A person is not guilty of an offence if

           (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the          authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

           (b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

 (ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

       (i) preventing the other person from entering the property, or removing that person from the property, or

       (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

 (d) the act committed is reasonable in the circumstances.

                   (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

                (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Similar to defence of the person, defence of the property involves an objective/subjective assessment. The person relying on the defence must have an honest but reasonable belief that they either have or are assisting someone who has “peaceable possession” of the property. In considering the meaning of the phrase “peaceable possession” the Alberta Court of Appeal in the 1992 Born with a Tooth case cautioned that “peaceable” should not be equated with “peaceful.” According to Stephen’s 1883 treatise, A History of the Criminal Law of England, the phrase describes possession of property, which does not provoke a breach of the peace. Therefore, “peaceable possession” is possession of property in which the community accepts and in which there are no adverse claims. This requirement is in place to discourage the use of force in property disputes, which appeared to be the norm in Medieval England. This concept will be discussed more thoroughly when we arrive at s. 72 relating to forcible entry and detainer.

Not only must the accused have a reasonable belief she has peaceable possession but she must also have a reasonable belief that the other person is entering the property unlawfully or for an unlawful purpose such as damaging or taking the property for which the accused has peaceable possession. If this holds true, then the accused may rely on the defence if the force used is for the purpose of preventing the unlawful act or removing someone after they have committed or are about to commit the unlawful act relating to the property.

Additionally, the force used must be reasonable in the circumstances. The circumstances will of course vary depending on the facts of each particular case. It must be emphasized that the force used must be connected to ejecting the person from the property or preventing the person from taking the property. If the force is not used for that specific purpose, the accused cannot rely on this section but must instead rely upon the self defence section 34.

Subsection 2 and 3 outline the situations in which the defence does not apply. In subsection 2, the accused cannot rely on the defence if he or she does not have a claim of right to the property and the other person is entitled by law to possess it even though the accused reasonably believed he had peaceable possession.

This means that if the other person has a lawful right to the property, the accused cannot rely on the defence unless he has a “colour of right” to the property. Colour of right is a common law defence based on a mistake of law. An accused would have a claim of right if she has an honest but mistaken belief in a legal right or claim to a thing even if unfounded in law or in fact. Such a belief must be honestly held but not reasonably held. The “defence” of colour of right will be discussed further when we arrive at those sections where the defence is statutorily available such as theft pursuant to s. 322.

Subsection 3 applies in circumstances where the other person is exercising a lawful authority by entering the property or by attempting to take the property as in the situation of a bailiff seizing property to satisfy judgment. However, if the accused reasonably believes the person is acting unlawfully then he or she may still rely on the defence.

As with s. 34, this is a relatively new section and there is very little case law applying it. However, previous case law from the Supreme Court of Canada respecting the scope of defence of the property suggests that the force used can amount to more than a minor assault against a trespasser and may also involve the use of a weapon. Whether or not the force used in those circumstances is excessive would depend on the facts of each particular case.


The “Science” Behind R v Tatton

Increasingly, the legal world and the empirical world intersect both in the approach lawyers take to present cases in court and in the decisions rendered by the courts. Statistics, studies and academic articles are used to connect the evidence to the issue at hand. Truly court cases have become “evidence-based” in the full meaning of the phrase as expert evidence elucidates the trier of fact on a particular material issue. This involves the calling of evidence and also the reliance on research done in the fields of science and social science.

This intermingling of fact and scientific fact has become even more important since the 1990’s when the Supreme Court of Canada relied upon social science research in determining whether or not a Charter breach can be saved under s. 1. Thus, the government, in order to sustain an argument that the legislative restriction is demonstrably justified in a free and democratic society, does so on the basis of academic research exploring the connection between the legislative policy and the real effects of such policy on individuals and institutions. For example, in the 1991 Seaboyer;Gayme case, concerning the constitutionality of the “rape shield” provisions of the Criminal Code, the SCC reviewed material outside of legal jurisprudence such as statistical and research-based reports and academic articles written by psychologists and criminologists. Indeed many of the SCC cases relating to child witnesses routinely refer to this extra-legal material as for example in R. v. F. (W.J.), [1999] 3 SCR 569 and R. v. L. (D.O.), [1993] 4 SCR 419.

The difficulty with relying on social science research is that such research can change over time. What is accepted can be undermined by further study. This occurred in the above-mentioned L.(D.O.) case where in the reasons of Madame Justice L’Heureux-Dube on the issue of the constitutionality of s. 715.1, which permitted the admission of a child’s videotaped statement, she referred to “child abuse accommodation syndrome.” Subsequently, the syndrome came under intense scrutiny and is no longer accepted as persuasive. Indeed, one study labeled the syndrome an example of “junk science.” Although, the reliance on science was not critical to the legal outcome, a Court relying on such information may find what seemed persuasive is no longer valid and the legal decision can no longer stand.

On the other side of the spectrum, it is most troubling when the Court pronounces on legal principles, which partly lie in the realm of public policy and therefore has a connection to experiential or empirical knowledge and yet does not support the decision with tested facts. In the recent Supreme Court of Canada Tatton case, Mr. Justice Moldaver, speaking for the Court, upheld a time honoured legal distinction between specific and general intent offences as it related to the applicability of self-induced intoxication. Liberally sprinkled throughout the decision is reference to the inextricable connection between intoxication and crime. Even the specific/general intent distinction is imbued with an analysis of the mental engagement of an individual. Despite this heavy reliance on what appears to be scientific truths, at no time did the Court refer to or support the position with scientific study or research. To be sure, the court referred often to the Daviault case, which did reference a number of governmental reports and studies on alcohol and crime. However, the Daviault case was rendered in 1994, twenty-one years ago, with the studies coming from the mid to late 1980s.

Surely, more recent evidence should have been used considering the decision finally determined the limited application of a legal defence. Since the 1980s there have been numerous studies (here, here, here, and here) done on intoxication and crime, some of which do show a high number of crimes committed while the offender was intoxicated. However, there are also studies, which cannot definitively connect intoxication as the reason for an offender committing crimes. So although 40% of crimes are committed while the offender is under the influence of some sort of intoxicant, this does not mean that these crimes would not have been committed without them. To make this connection, there is research concerning the effects of alcohol as a disinhibitor that impacts a person’s thought processes to such an extent that they perform acts they would not have otherwise performed. Further research on thought processes suggest that decision making is complex and highly individualized. Therefore, the additional ingredient of alcohol can have a profound impact on the mental reasoning or lack thereof of a person who acts contrary to the law while intoxicated. For some of these studies, go here, here, here, and here. What can be learned from these various studies are that the issue is has not been empirically determined and the relationship between alcohol, mental processes, and crime is highly complicated and variable.

What are the implications of this on the Tatton case? As mentioned earlier, the case’s import is twofold as it propounds on the general distinction between specific and general intent and then specifically relates these differences to the defence of intoxication. On both issues, I submit that Mr. Justice Moldaver relied upon the court’s perception of the “science” behind these legal principles in reiterating a long held position that intoxication is not a defence to a general intent offence without referencing any recent empirical studies but instead merely citing the twenty-one year old Daviault case. By proceeding on this basis, the Court missed the opportunity to provide some rational basis for the general/specific distinction. Instead, the Court has simply perpetuated a legal fiction as opposed to a scientific one.

 

 

 

 

 

 

 

Episode 39 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 34 – Defence Of The Person

As with many of our legal defences, defence of the person comes to us through the English common law and was ultimately codified in our first Criminal Code of 1892. Over time the codified defence, together with the codified defence of property, which we will discuss in the next episode, became increasingly obtuse, ultimately stretching over nine sections from section 34, which offered differing forms of self defence depending on whether the accused was the aggressor, to section 42, which provided justifications for those persons peaceably entering a dwelling house or real property to take lawful possession of it.

This mash-up of sections resulted in a nightmare of a defence as certain sections applied only in specific circumstances and certain subsections applied in even other circumstances.  For example, in the old section, s. 34(1) applied where the accused was unlawfully assaulted and did not provoke the attack, while s. 34(2) applied where the accused either provoked or did not provoke the unlawful assault. The nightmare continued as Judges struggled to explain these differences to a Jury, eagerly awaiting instruction. It is unsurprising that appellate courts considered many of these self defence cases.

So, in some sense, it was a relief in 2013, when the Federal government streamlined the defence into one applicable section. However, this streamlining, I would argue, may have re-focused the defence from a modified subjective/objective assessment to a more thorough consideration of the objective view of the accused’s conduct.

Before, we launch into the niceties of this new section, please remember that self defence and defence of the person is a category of common law defences known as justifications. Justifications, according to Justice Dickson in Perka v The Queen, “challenges the wrongfulness of an action which technically constitutes a crime.” In other words, the actions of the accused appear “rightful, not wrongful” and, as Justice Dickson further explained, “the concept of punishment often seems incompatible” with the act committed. Indeed, Justice Dickson opined, in the circumstances “the values of society, indeed of the criminal law itself, are better promoted by disobeying a given statute than by observing it.”

 In that aura of humanity, let us review section 34, which reads as follows:

(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

                        (c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

                      (a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

                        (c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

 

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

There are three parts or subsections to s. 34. Subsection 1 outlines the essence of the defence as containing both subjective and objective elements relating to the belief the accused was facing a situation that required the justified response. Subsection 2 enumerates a number of factors to be considered in determining whether or not the accused had a reasonable belief she was facing a situation where the use of force was justified. Although this list is lengthy it is not exhaustive and other factors may come into play depending on the case. Additionally, this list is derived from case law and reflects the many circumstances considered over the years of appellate review of the old sections.

Although the accused need only raise a doubt that her actions were so justified and therefore the burden to prove the accused actions were not justified are on the Crown, the defence must raise an air of reality to the defence before it will be considered by the trier of fact. I have written a paper on the application of the threshold test of air of reality to justifications and excuses at (2014) 61 Criminal Law Quarterly 531 or you may review my short blog version of that paper here.

Subsection 3 sets out when the defence is not available: where the force the accused was facing was lawful. However, the accused may rely on the defence if the accused believed on reasonable grounds that the force threatened was unlawful.

Since the change in the defence, there have been a number of trial court decisions applying the section. One of the first issues to be argued was whether or not the section is retrospective. The question was as follows: where the accused is facing a pre amendment charge but is tried post amendment, which statutory defence applies? The cases suggest that the section is not retrospective and the trial judge must apply the defence sections, which were in force at the time of the offence. For a discussion of this issue see R v Evans, 2015 BCCA 46 (CanLII).

In the end, how does the new section compare to the old sections? In my prior blog, Canada’s New Defence of the Person Section: Is It Too Reasonable, I argued that although the old sections, which blended objective/subjective considerations, provided a less than satisfactory defence, the new iteration is decidedly more objective and fails to adequately consider the accused’s subjective perception of the events. Thus, the section is concerned more with the hypothetical reasonable person’s viewpoint and less with the individual who is in reality facing the dire circumstances.

Further, the defence requires that the accused’s actions must be “for the purpose of defending or protecting themselves or others.” This requirement at first blush seems non-controversial, as obviously the conduct must be in response to an unlawful assault. However, on closer examination and upon reviewing some case law, this requirement may unduly restrict the defence.

In the 2015 Ontario Superior Court of Justice case of Allen before Justice Fairburn, Mr. Allen assaulted a police officer and appeared to resist arrest by punching the officer and placing him in a “choke hold.” In the end, the officer was found not to be in the lawful execution of his duty and therefore the arrest was unlawful. Although Justice Fairburn dismissed the defence of self defence under s. 34, as the act of the accused was not reasonable in the circumstances, the court commented on the “purpose” of the assault. According to Justice Fairburn, the accused did not testify and therefore the court inferred that the act was not for the purpose of defending himself but was force used purely for the “sake” of using force against the police officer. This analysis suggests that not only should defence counsel consider very carefully whether or not to call a client where self defence is raised but also provides a strict meaning of the term “for the purpose.” Defence counsel should be aware that this subsection could add a further evidential burden on the accused despite the fact the accused need only raise a doubt on the issue.

Although this section has been in use for two years, the section has not been subject to an appellate court decision. It will be interesting to see what interpretation ultimately is given to this section. For instance, an issue may arise considering the applicability of the common law version of the defence where this statutory defence differs from the common law and whether the courts are willing to modify the statutory defence in accordance with common law principles. In the meantime, counsel should carefully review the defence evidence on the issue of defence of the person in light of this new statutory defence and be mindful of the new requirements.

 

 

 

Thoughts On St-Cloud Or How Everything Old Is New Again

After reading the Supreme Court of Canada’s decision in St-Cloud, I was instantly transported back to the heady days of the early nineties: where multifarious decisions produced more questions than answers but left the reader with the comforting feeling that somehow the Charter was above the fray. In those mixed-bag decisions there was the satisfaction that the Charter did make a difference and was shaping the new-look Canadian society. However, this nostalgic wave of emotion was not a “remembrance of things past” but was a physical time travel to the days of Morales, wherein the Supreme Court found the secondary “public interest” ground for justifying detention under the then s. 515 of no force and effect as it violated s. 11(e) of the Charter.

Now, let’s be clear, I agree that the 1990’s version of the grounds justifying detention under the Code is very different than today’s read. However, Justice Wagner’s decision applies a broad brush to those differences resulting in a tertiary ground which looks, feels, and acts like the old version.

In Morales and the companion case Pearson, Chief Justice Lamer unpacked the meaning of “public interest” as a judicial tool to justify the denial of bail. This justification was important to articulate, as the granting of bail was the default position under the section. Similarly, “reasonable” bail was guaranteed under s. 11(e) of the Charter. The meaning of “public interest” was therefore an important indicator of whether or not the law was properly mirroring this Charter right. In order to give meaning to a right, all courts should be in agreement with that meaning or the right is no longer an equitable claim.  If “public interest” could not be crystallized and articulable then it would be of no assistance in grounding a denial of bail. This did not mean that there must be a precise definition but an articulable one. Throughout this discussion, Chief Justice Lamer reiterated the “golden thread” by which the court was guided in viewing the matter – the “golden thread” of the presumption of innocence.

Under this 1990’s microscope, the court was unable to find a consensus on the meaning of “public interest” resulting in a “vague and imprecise” basis for detention, which was contrary to fundamental principles of justice such as the principle of legality as delineated in the SCC case of Lohnes rendered a few months earlier. Upon a thorough sweep of authorities, Lamer C. J. found the term “public interest” was “open-ended” and failed to provide a structure for legal debate.  With such a deficient yardstick, the ground could not be saved under s. 1.

It seems pretty clear from this decision that “public interest” is an unusable phrase from the past, except for this telling line from the Morales decision:

“As currently defined by the courts, the term "public interest" is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.” (Emphasis added)

Now, flash-forward to the St-Cloud decision and Justice Wagner’s valiant attempts to define “public confidence” seems to make short shrift of the Morales decision. To be sure the 2015 Court is working with a differently worded section and the issue is “public confidence” in the administration of justice and not “public interest” but what is “public confidence” now can be “public interest” then.  Although Justice Wagner is very careful to couch the meaning in Charter correct terms and is mindful of the unique connection release from custody has to our fundamental concepts of the presumption of innocence and burden of proof, the fact remains that these core principles are now bound by the public interest, albeit tempered by the concept of Canada’s nom de plume, “reasonableness.”

This case raises many questions. Not just questions of applicability and not just questions of how this decision will look like in the realities of bail court but fundamental questions such as: is the law looking backward instead of forward by essentially reviving the public interest as a controlling feature of bail? And if so, how does the public interest reside within our fundamental principles, which tend to the individual as opposed to the collective, such as the presumption of innocence as the “golden thread” that appears throughout our notion of criminal law? These hard questions must be asked if we are to move into the future and beyond.

Section 33.1 & How Intoxication Became A Form of Mens Rea: Episode 38 of the Ideablawg Podcasts on the Criminal Code of Canada – A Long Read (Or Listen)

In this episode we will explore the “defence” of intoxication and how this common law concept became a form of statutory mens rea in s. 33.1 of the Criminal Code.

Intoxication, as a defence, is a difficult concept involving a clash of perspectives. One perspective finds fault with the defence as it absolves a morally blameworthy accused who, in committing an offence, willingly places himself in an uncontrollable state. The other perspective aligns with traditional criminal law precepts by permitting the defence on the basis that only those accused who have the required fault element of the crime should be punished. Both perspectives have informed this defence through legal interpretation and legislative response. In the end, intoxication as a defence is cumbersome, artificial, and in many respects unsatisfactory. The law and legislature has simply been unable to reconcile these differing, yet valid, perspectives and the defence remains a legal anomaly.   

It is in this background, we must view the present iteration of the defence as found partly in s. 33.1 of the Criminal Code. I say “partly” as the judicial interpretation of the defence still applies in some respects. Indeed, we can for ease of discussion refer to s. 33.1 as representing the first perspective I previously outlined - the concept of moral blameworthiness. Conversely, the judicial perspective, as ultimately represented in the Daviault case through the application of the Charter, represents the traditional criminal law principle of ensuring those without criminal intent, the morally innocent, are not punished.

Historically, these two perspectives on intoxication were not separated and the courts fashioned an awkward alliance between these two visions of responsibility:  the morally responsible accused who choses to become intoxicated and the morally innocent accused who was acting without mens rea and therefore not criminally responsible. To fulfill these two visions the common law limited the defence to certain types of offences. The case, which reflects this common law principle, is the 1920 House of Lords decision in DPP v Beard. The principle in Beard’s Case, as it became to be known, holds that intoxication is not a defence to a general intent offence but is a defence to a specific intent offence.

To understand this split, let’s review the difference between general and specific intent offences: Crimes of specific intent are offences with a special mental element required above and beyond the general mental element of the offence. Thus, a crime such as theft, which requires the taking of something with the intent to steal, is a specific intent offence. So too is murder with the specific intent to kill. Conversely, general intent offences involve no ulterior goal and only require an intention to act to achieve an immediate goal. Assault is an example of a general intent offence. Applying the principle in Beard’s Case, intoxication is a defence for a murder charge but not for an assault. Although the Supreme Court of Canada consistently disapproves of this specific/general distinction as artificial and confusing, it still remains an integral part of the intoxication nomenclature.

In the 1977 Leary decision, the SCC considered the Canadian position on intoxication creating a rule similar to Beard’s Case. This rule was reconsidered after the advent of the Charter in the 1988 Bernard decision. Bernard produced a fractured court with three separate concurring decisions and a strong dissent from the then Chief Justice Dickson and Justice Lamer, who also dissented in Leary.

Justice McIntyre’s majority decision upholds the Leary rule that intoxication is not a defence to a general intent offence. Both Leary and Bernard involved the general intent offences of rape and sexual assault, respectively. There were strong public policy reasons for eliminating intoxication as a defence to sexual offences. Even so, Justice McIntyre conceded that intoxication might apply to specific intent offences as in those circumstances intoxication could negate the formation of the specific intent required. This was also a “safe” position to hold as typically a specific intent offence involved proof of an underlying general intent offence. Therefore an acquittal for a specific intent offence on the basis of intoxication still permitted a conviction on the lesser and included general intent offence. An acquittal for murder, for instance, could result in a finding of guilt for manslaughter. The “morally” responsible accused would still be convicted.

In terms of the Charter, Justice McIntyre found sections 7 and 11(d) were not violated by the Leary rule, as the morally innocent would not be convicted on the basis that the voluntary consumption of an intoxicant would be criminally blameworthy. Further, the Crown must still prove mens rea, which could be inferred from the prohibited act by assuming a person intends the natural and probable consequences of his or her actions. If, however, voluntariness was an issue, meaning the accused was so intoxicated that his actions were not voluntary and therefore the so called “willing mind” aspect of the actus reus could not be proved, then the Crown could prove the acts were of a willing mind based on the proof of the accused self-induced intoxication.  

Justice McIntyre’s decision is difficult to reconcile. Proving mens rea on the incongruous premise that an intoxicated person intends the natural and probable consequences of their actions is debatable.  Although, as an aside, this concept has enjoyed recent SCC approval in the Walle case. See my blog on that case here.  Further, Justice McIntyre’s response to the voluntariness issue is a tautology: by filling in the proverbial fault “hole” with proof of intoxication, intoxication is no longer a “defence” or even a state of mind but is evidence of the state of mind, which is the key element of the an offence.

Justice Wilson, concurring in Bernard, offers a more “flexible” approach to the Leary rule permitting evidence of extreme intoxication “involving an absence of awareness akin to a state of insanity or automatism” to be left with the trier of fact in general intent offences. On the issue of mens rea, Justice Wilson does not approve of the substitution of self-induced intoxication for proof of the mental element component. In her view, the Crown is still required, even in general intent offences, to prove the minimal intent needed for conviction.

In the dissent, Chief Justice Dickson and Justice Lamer found the Leary rule violated the Charter and could not be saved under s.1. The rule, according to the minority, imposed a form of absolute liability, requiring no proof of mens rea for those general intent offences where intoxication could negate the mental element of the offence. They also firmly disapproved of the “artificial” distinction between specific and general offences. Intoxication, in their view, was relevant to mens rea and should be left to the “fair and responsible” trier of fact, who was able to sift through the evidence and determine if in fact intoxication was to such an extent that mens rea was absent.

Unsurprisingly, the Bernard decision attracted many critics, particularly Justice McIntyre’s position that self induced intoxication could substitute for the mental element of an offence.  There was the concern that the legally innocent, those accused whose level of intoxication was sufficient to raise a reasonable doubt on the mental element, were being convicted as a result of the Leary rule. Other commonwealth countries, such as Australia in the O’Connor case and New Zealand in the Kamipeli case, which previously supported the rule in Beard’s case, ultimately resiled from that ruling.  Eventually, Britain too modified the Beard’s Case ruling. Critics also lambasted the specific/general distinction as irrelevant and, as suggested by the dissent in Bernard, creating artificial barriers to valid defences.

In this climate, the SCC heard the Daviault case in 1994, also a sexual assault conviction, where the issue concerned the application of extreme intoxication as a defence to a general intent offence as considered by Justice Wilson in her decision in Bernard.  This time, the majority of the court found the Leary rule unconstitutional and agreed with Justice Wilson’s approach in Bernard that extreme intoxication was a defence to a general intent offence. In order to raise this defence, the accused, similar to a s.16 or automatism defence, must prove the defence on a balance of probability and is required to produce expert evidence in support.  The majority disagreed with Justice McIntyre that self-induced intoxication could provide the mens rea for the offence. The dissent, written by Justice Sopinka, found that the Leary rule was based on sound public policy reasons even though the specific and general intention distinction could lead to “illogical” results. The majority allowed the appeal and remitted the case for a new trial wherein the defence of intoxication could be raised.

The response to Daviault was swift. The government quickly legislated a response to the case and within a year a new amendment to the Code under s. 33.1 received Royal Assent.  Section 33.1, as suggested by the summary preceding the text of the Bill, amended the Criminal Codeby legislating a basis of criminal fault in relation to extreme self-induced intoxication and violence.”

The section, entitled “ self-induced intoxication,” reads as follows:

(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

Criminal fault by reason of intoxication

 (2) For the purposes of this section, a person departs markedly from the standard of reasonable care       generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

  Application

 (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

The section is a difficult read.  Subsection 1, which confusingly refers to (2) and (3), essentially eliminates the Daviault exception to the Leary rule by legislating that extreme intoxication is not a defence for general intent offences, which interfere with or threaten to interfere with the ”bodily integrity” of another person.  The concept of interference with “bodily integrity” is broad and includes, as per the SCC Tessling case, the right not to be touched.

However, the subsection also substitutes the self-induced intoxication for the mens rea of the offence. In subsection 1, this substitution arises from the connection between the elimination of the defence and the accused’s conduct as “departed markedly from the standard of care as described in (2).”  Subsection (2), entitled Criminal fault by reason of intoxication, describes a marked departure from the norm, typical language used to explain criminal negligence from the SCC Tutton case, as occurring when the accused commits the offence “while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily.” Therefore, the deficient state of the accused, both physically and mentally, fulfills the mental requirement of a criminal act. Needless to say, this artificial mens rea is contrary to traditional criminal law precepts and in violation of the Charter as articulated by Chief Justice Dickson and Justice Lamer in the Leary and Bernard dissents and as found by the majority in Daviault.

Even so, the legacy of Daviault still has precedential value. The courts never overruled the decision and s. 33.1 has not eliminated the defence for those general intent offences which do not involve the interference with the bodily integrity of another person nor has it eliminated the defence for specific intent offences. The 2007 SCC Daley case nicely outlines the application of the defence of intoxication in light of this.  Further, some courts in Ontario, such as in R v Cedeno, have found s. 33.1 unconstitutional, although oddly enough the constitutionality of the section has not be considered by appellate level courts.  The closest an appellate court has come to discussing the constitutionality of the section is in the 2001 North West Territories Court of Appeal case in R v Brenton where the court reversed a lower court decision finding the section unconstitutional on the basis that the lower court did not have a sufficient “factual foundation at trial upon which to mount a constitutional challenge to s. 33.1. In our respectful view, this was not a proper case in which to engage this important constitutional issue.”

There is a pressing need for the higher level courts to pronounce on this issue. Certainly, there is societal repugnance for the defence particularly where the crime committed involves sexual assault. However, there is now societal recognition that alcoholism and drug addiction can be a disease and may leave the affected person helpless to control their substance abuse problem. The concept of “self-induced” intoxication is brought into question in those situations and the subsequent warehousing of these offenders becomes part of the problem instead of the solution. There is, of course, still the doctrinal concern that the law, by not taking into account intoxication, is creating an artificial mental state where the accused does not actually have the blameworthy intent and yet is punished as if he or she did. In a very real sense, therefore, we are punishing the intoxication rather than the crime.