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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some Thoughts On Teaching Evidence

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

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

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

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

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

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

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

 

What is Advocacy?

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

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

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

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

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

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

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

 

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

Action, nor utterance, nor the power of speech

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

I tell you that which you yourselves do know,

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

And bid them speak for me.

 

Julius Cæsar, Act III, Scene ii.

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

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

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

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

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

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

 

 

 

 

 

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

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

 

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

 

 53 Every one who

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

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

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

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

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

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

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

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

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

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

Also posted on the Ablawg.ca website.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...an act or omission that

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman

This blog also appears on the ABlawg.ca website:

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.