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

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

Section 45 reads as follows:

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

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

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

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

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

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

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





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


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

Let’s read the section in full:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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





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

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

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

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

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

           (b) they believe on reasonable grounds that another person

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The “Science” Behind R v Tatton

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

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

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

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

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

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








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

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

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

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

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

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

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

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

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

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

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

                      (a) the nature of the force or threat;

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal fault by reason of intoxication

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


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

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

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

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

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


The Suppression of Riots, Manifestly Unlawful Orders, And The Prevention Of Serious Mischief Under Sections 32 & 33: Episode 37 of the Ideablawg Podcasts on the Criminal Code of Canada

Although sections 32 and 33 pertain specifically to the suppression of riots, these sections continue the various Code protections afforded to a person enforcing the law but with a twist. Section 32 provides for a justification for the use or the ordering of force by a peace officer providing the force is applied in good faith, is necessary on reasonable grounds to suppress a riot and such force is not excessive in the circumstances.  So far, these sections seem familiar and comparable to previously discussed use of force sections. However, the difference is in the added language as sections 32(2) and (3) provide protection for those who obey orders to suppress a riot in both a martial law scenario (subsection 2) and a more general situation (subsection 3).  Subsection 4 protects citizens in the use of force in suppressing a riot in exigent circumstances involving “serious mischief.” Finally, subsection 5, deems the question of whether the order to use force is “manifestly unlawful or not” as a question of law.  

Section 32 reads as follows:

 (1) Every peace officer is justified in using or in ordering the use of as much force as the peace officer believes, in good faith and on reasonable grounds

       (a) is necessary to suppress a riot; and

(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(2) Every one who is bound by military law to obey the command of his superior officer is justified in obeying any command given by his superior officer for the suppression of a riot unless the order is manifestly unlawful.

(3) Every one is justified in obeying an order of a peace officer to use force to suppress a riot if

(a) he acts in good faith; and

(b) the order is not manifestly unlawful.

(4) Every one who, in good faith and on reasonable grounds, believes that serious mischief will result from a riot before it is possible to secure the attendance of a peace officer is justified in using as much force as he believes in good faith and on reasonable grounds,

         (a) is necessary to suppress the riot; and

         (b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(5) For the purposes of this section, the question whether an order is manifestly unlawful or not is a question of law.

Subsection 1 only provides protection to a peace officer that uses or orders necessary force. Although the term “uses” is self evident, the word “orders” requires further discussion as it relates to subsection 2 and 3 and the protection of those who “obey” such orders to use force. Clearly, the section provides protection not only to those directly involved in suppressing riots but also those who are indirectly involved by giving the order or commands to suppress a riot. Why should this be the concern of a Criminal Code protection? The answer lies in the historical consideration of these sections and are, of course, very much related to the historical view of riots and those preventing them.

For this historical viewpoint, the first place to turn is to James Fitzjames Stephen, British jurist and the “father” of our codified criminal law. As I have discussed in previous blog, Stephen was a staunch supporter for codification of criminal law in England just at the time the Dominion of Canada was developing national laws. Although England did not follow Stephen’s recommendation, other commonwealth countries besides Canada did. In his treatise “A History of the Criminal Law of England, Volume 1,” Stephen devoted a chapter on suppression of riots. Anyone who has a smattering of awareness of the history of England, knows that riotous behaviour appears to be a regular feature of that history. This familiarity with the mob appears to be the catalyst for much of English common law and Canada, at least in this instance, appears to be the beneficiary of this propensity. According to Stephen, every citizen had a right and duty to protect public peace as “violence in all forms was so common, and the suppression of force by force so simple a matter, that special legislation did not seem necessary in very early times.” Despite this belief, as early as the 14th Century, legislation was in place relating to riots and was quite similar in tone and composition to the riot sections found in the Code today. Historically, twelve members of the community comprised the magic number for a riot, which is telling considering twelve is also the number required to constitute a valid jury. However, in the Code, an unlawful assembly under s. 62, which is not necessarily a riot, requires only an assembly of three or more persons. An unlawful assembly becomes a riot, pursuant to s. 63, where that assembly begins “to disturb the peace tumultuously.” But the ability to disperse a crowd through governmental proclamation required the mob equal twelve or more individuals. I will have more to say on this aspect when we arrive at those riotous sections.

In any event, it is clear that suppressing a riot has a long and tumultuous history and therefore the protections required, from preventing a riot to ordering the prevention of riots, are firmly within the Code protection/justification sections. This brief look back also explains why 32(2) applies to those suppressing a riot in accordance with military law as historically, riots, seen as a form of treason against the Crown, were typically suppressed by military force. Protection is required as a riot can turn into a revolution, which can in turn change the government and those supporting the old government by suppressing the riot of the newly formed government might find themselves on the wrong end of the law. Thus, s. 32(2) in certain circumstances can protect those who are merely following and obeying orders. This protection also extends to citizens who assist peace officers in suppressing riots under subsection 3.

The urgency suggested by this obligation to suppress a riot unless the order to do so is “manifestly unlawful” in accordance with the section reflects the historical seriousness with which these potential dangerous gatherings were treated.  However, as indicated in subsection 2 for the militia and subsection 3 for citizens, the justification of following orders is not available if the order is “manifestly unlawful.”  This phrase appears only in this section of the Criminal Code although the word “unlawful” is no stranger to the Criminal Code, typically meaning an act contrary to statute, be it criminal or regulatory. The word “unlawful” has a further meaning when connected to a predicate offence as it then also requires that the underlying unlawful act must be objectively dangerous as per the 1992 SCC DeSousa case. The descriptor “manifestly” is defined in the dictionary as easily understand or recognized by the mind.

A brief review of case law on the use of the term reveals that the phrase, “manifestly unlawful,” is a term often used in military law in relation to the requirement to follow superior orders, particularly where superior orders are conflicting. Under Article 19.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&Os) deals with "Conflicting Lawful Commands and Orders" and according to the notes accompanying the QR&Os, it is usually clear if an order from a superior officer, which includes a non commissioned member, is lawful or not. If however it is unclear or the subordinate does not know the law, then the subordinate must obey the command unless it is manifestly unlawful.

Of course the issue then becomes evident to whom? Does the law require the unlawfulness of the order be manifestly evident to the person following the orders – as in a subjective test – or manifestly evident to the reasonable person – as in an objective test? Although, an argument could be made that this determination requires a subjective assessment of the subordinate’s state of mind, according to military interpretation, “manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal,” requiring an objective test albeit in the context of the circumstances of the case. This phrase is important for military law as if a soldier follows a manifestly unlawful command, he or she is liable for his or her actions under civil or criminal law.

In the 2009 Matusheskie case, the Court Martial Appeal Court of Canada considered the term “manifestly unlawful” and found that the threshold for finding an order “manifestly unlawful” was very high. In support of this finding, the Court looked to the SCC discussion of the defence of following superior orders in the Finta case relating to Finta’s war crimes committed in WWII. As Justice Cory explained in Finta, “manifestly unlawful” is an order that “offends the conscience of every reasonable, right thinking person; it must be an order which is obviously and flagrantly wrong.  The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.” The determination of “manifestly unlawful” is as stated in subsection (5) a question of law.

Finally, the gravity of riots permits citizens, who are unable to secure the attendance of a peace officer, to take into their own hands the suppression of a riot under subsection 4 if the actor believes “serious mischief” will otherwise result. The phrase “serious mischief” is again unique to this section, although of note the term did appear under the pre-2010 Alberta Rules of Court in relation to ex parte motions. Under the old Rule 387 an ex parte motion may only proceed if the applicant establishes that the delay caused by regular proceedings might “entail serious mischief.” The new rule 6.4 considers whether or not “undue prejudice” would be caused to the applicant. In other jurisdictions, the phrase is also used in a similar civil context and refers to “irreparable or serious mischief” caused by not proceeding by way of ex parte motion such as in s. 441(3) - now Rule 6-3(3) - of the Saskatchewan Queen’s Bench Rules. This suggests that the “mischief” or harmful behavior must be dangerous indeed.

Section 33, requires a peace officer and those assisting a peace officer to “disperse” or arrest those persons who do not comply with a proclamation under s. 67 or has committed an offence under s. 68. These sections, which we will discuss more specifically in later episodes, refer to the proclamation or order to disperse, which must be read by a government official, under section 67, where twelve or more persons (recall the 14th Century English laws on riots) are “unlawfully and riotously assembled.” Section 68 refers to offences committed when those ordered to disperse under s. 67 fail to do so.

Sections 32 and 33 are part of English common law history and remind us of a more unstable time when mobs could oust the rule of law. The societal harm when that possibility occurs is neatly reflected in Shakespeare’s historical play, Henry VI Part 2 in Act 4 Scene 2 wherein the line “the first thing we do, let’s kill all the lawyers” is spoken as a call to anarchy and disorder and a reminder to those law abiding members of the audience to take heed.









Bail Pending Appeal And The Public Interest: The Effect of the Alberta Court of Appeal Decision In Rhyason

A few weeks ago, I had an opportunity to address the students from Professor Glen Luther and criminal lawyer Brian Pfefferle’s Intensive Criminal Law Program at the University of Saskatchewan College of Law. It is always a pleasure to speak to a group of dedicated and eager students who have chosen the rewarding, yet often, difficult task of criminal work, be it prosecution or defence. The topic on which I chose to speak was on criminal appellate advocacy including practical considerations, the process and the written advocacy required. I also discussed the bail pending appeal process on conviction appeals to the provincial court of appeal and the criteria for release as outlined under s. 679(3) of the Criminal Code. This is an area rarely touched upon in law school and yet is an important step in the appellate process. Although s. 679(3) sets out articulable grounds for release, the judicial interpretation of the public interest ground has been unclear and often inconsistently applied. Yet, it tends to be the public interest ground relied upon by the Court to dismiss the bail pending appeal application.

Bail pending appeal significantly differs from judicial interim release at first instance, as the offender no longer has the advantage of the presumption of innocence. It is therefore the offender who has the burden to persuade the single Justice hearing the application to release the applicant pending the hearing of the appeal. If an offender is released on bail pending the appeal, he or she will be required to surrender into custody before the matter will be heard. Typically, this is manifested through a bail condition for the Appellant to surrender the evening before the hearing date. The custodian of the jail will transmit a confirmation this has been done. If the Appellant fails to surrender, the bail may be estreated, if applicable, and the appeal will be deemed abandoned.  

Considering the onus is on the Appellant, The Court of Appeal Justice, in determining the bail pending for a conviction appeal, must be satisfied, as per s.679(3) that the Appellant will:

 (a) the appeal or application for leave to appeal is not frivolous;

 (b) he will surrender himself into custody in accordance with the      terms of the order; and

            (c) his detention is not necessary in the public interest.

These three factors for release, as will be discussed, are not treated by all appellate courts as mutually exclusive and are interconnected. The requirement, for instance, that the Appellant will surrender himself into custody is related to the other factor that detention is not necessary in the public interest as an Appellant who does not establish that he will obey the court terms would also have difficulty establishing that the detention is not necessary in the public interest. Those Appellants who fail to fulfill the surrender requirement would be offenders who have failed to comply with recognizances in the past and/or have fail to appears on their criminal record. This kind of evidence goes to the concern, applicable to this ground,that the Appellant is a flight risk and will therefore evade serving the sentence. This concern is connected to both aspects of the public interest ground as a failure to surrender would bring the administration of justice into disrepute and would put the public safety at risk. Usually, however, the Appellant can satisfy the requirement to surrender with appropriate conditions and sureties and this factor is not the factor, which causes the Court the most concern.

The next requirement that the appeal is not frivolous has been traditionally a matter of the Appellant establishing that the appeal is arguable or that the appeal would not necessarily fail. This requires some argument on the grounds of appeal as proposed in the Notice of Appeal and as evidenced by the trial record. Usually, this ground too is fairly simple to establish, although obviously dependent on the ground being advanced. Certainly an appeal based on a question of fact or mixed law and fact would be more difficult to argue than a question of law due to the principle of deference to the trial judge in those factual findings. But this is not where the real difficulty appears. The real difficulty for the Appellant is in the public interest ground where some courts take into account the strength of the appeal in the assessment. An Appellant may, therefore, be able to establish that the appeal is arguable but if the appeal is arguable but weak this finding may impact release under the public interest ground. This is certainly the case in Alberta but not the case in Newfoundland. I will now discuss this a schism on this issue and the implications for an Appellant in arguing a bail pending where the Court prefers the Alberta position. In my view, this is an inconsistency, which requires direction from the Supreme Court of Canada.

First, we must be mindful of the legal interpretation of the phrase “not necessary in the public interest.” The classic definition or legal interpretation comes from the 1993 Farinacci case. In that decision, Justice Arbour finds there are two aspects to the term “public interest” as it involves both protection of the public and public respect for the administration of justice. This dual nature of public interest, she further explained, in the context of a bail pending appeal balances enforceability with reviewability. There is a public interest in having judgments of the court obeyed and therefore enforced. However, there is an equally cogent reviewability interest, which requires that judgments be error-free. In criminal law, therefore, there is an important interest in ensuring the law is applied but applied in a fair and just manner. A judgment, which perpetuates a miscarriage of justice, is in law, no judgment at all.

So far, the meaning of public interest appears to apply legal common sense and the kind of balancing we are so familiar with in Canada. But, it is the extension of this interpretation in the Alberta Court of Appeal Rhyason case, written by Justice Berger, which causes an imbalance to the Farinacci structure by placing undue emphasis on the strength of the Appellant’s appeal. I would argue that this emphasis is misplaced as it elevates the s. 679 requirement that the appeal not be frivolous to a higher standard depending on the public safety aspect of the public interest ground.

In Rhyason, the Appellant was convicted of impaired causing death in 2006. He had a prior conviction for impaired driving and was sentenced to eighteen months incarceration. He was gainfully employed at the time of incarceration and enjoyed the support of his family. At the time of the bail pending, he had been ticketed for speeding on three occasions and was convicted of failing to comply with the reporting condition of his pre trial bail as he had failed to telephone in as required.

On appeal, the defence advanced a number of errors entered into by the trial judge including an error in the finding that the officer had reasonable and probable grounds for the breath demand. Justice Berger in dismissing the bail application found there could be a close connection between both the requirement that the appeal not be frivolous and the requirement that the Appellant surrender with the public interest ground. As already discussed, there is a rational connection with the requirement to surrender but a connection that can be addressed by proper bail terms. However, by relating the strength of the appeal to the public interest ground, Justice Berger was not merely making a reasonable and valid connection but imbued the public interest with a further requirement that the Appellant must establish a certain a level of “argueability” to the appeal, which is simply not required under the rubric that the appeal simply not be considered frivolous.

Essentially, Justice Berger created a “sliding scale” whereby the more compellable the public interest is in further detaining the Appellant, the stronger the appeal must be for the Appellant to be released on bail. In the case of Rhyason, Justice Berger found compelling public interest reasons for detention although the appeal was “clearly arguable”, and therefore was “clearly” not frivolous, however, in Justice Berger’s opinion, the grounds for appeal did not have a “strong prospect of success,” which required the Appellant be ordered to remain in custody. For the Appellant to be released, according to Justice Berger, Rhyason would have to have an appeal that was more than clearly arguable to “trump” the public safety concerns in the case.

Ironically, the Rhyason case was appealed all the way to the Supreme Court of Canada on the basis of a dissent in the Alberta Court of Appeal. Although the Supreme Court of Canada ultimately dismissed the Appellant’s appeal, it was a split 5:4 decision – a far cry from an appeal, which Justice Berger characterized as not having a strong prospect of success.

The Rhyason analysis was recently tested in the Alberta Court of Appeal case from 2015 in the Awer decision. Justice Berger was again faced with a bail pending application in which the Crown, opposing the release, urged the court to enter into a Rhyason analysis tying the strength of the appeal to the public interest issue. In releasing the Appellant on bail, Justice Berger attempted to limit the broad test he enunciated in Rhyason. Thus, in Awer, he found that the Rhyason analysis was only engaged when there was a “moderate” to “compelling’ public interest in detention, which was not the case in Awer. It should be noted that in Awer the accused was convicted of a serious sexual assault but there was conflicting expert evidence which, according to Justice Berger, “was a critical component” to the finding of guilt or innocence. Awer was released as his appeal was not frivolous and the terms of the bail could ensure public safety.  

The Newfoundland Court of Appeal has taken a position strongly opposed to Rhyason in a number of cases (see Parsons, Allen, and Newman) and will not take into account the strength of the appeal under the public interest ground.  The British Columbia Court of Appeal in Ali and in Al-Maliki cases appears to be firmly on side with Alberta.

There are many concerns with the Rhyason analysis. As earlier discussed the threshold requirement that the appeal not be frivolous is not only elevated but also fluctuates depending on how compelling the public interest is in a particular case. This uneven application of bail requirements allows for inequities between various Appellants, such as evinced in the Awer and Rhyason cases. As demonstrated in Rhyason, a case, which was not just “clearly” arguable but “strongly” arguable, the Rhyason analysis invites a single Justice to dispose of an arguable appeal without the benefit of a full transcript, a full argument and a full court. Further, this approach fails to properly consider the other important aspect of the public interest – reviewability – and the public confidence resulting from the need to provide a meaningful opportunity for an individual to appeal to protect society from miscarriages of justice. Without a clear and articulable standard, reviewability and our concept of justice will be hampered by an Appellant who abandons an appeal as a result of serving his or her sentence. Such a result is clearly not in the public interest.



Episode 36 of the Ideablawg Podcasts on the Criminal Code of Canada: Preventing Breach of Peace – Sections 30 and 31

Immediately preceding the “suppression of riots” sections in the Code, which we discuss in Episode 37, are two sections on preventing breach of the peace, sections 30 and 31. The are only two other sections, which make specific reference to the “breach of the peace.” One is section 72 relating to forcible entry and forcible detainer – a section that we will eventually discuss but without giving away the fascinating history of this section, is a definite nod to old English common law from the medieval period. The other reference to breach of the peace is found in section 319 “public incitement of hatred.”

Although this term appears sparingly in the Code, it is referred to in many criminal decisions as an underlying objective of the criminal law, which is to prevent and contain breaches of the peace. The phrase is used for instance in discussing a breach of a recognizance condition of “keep the peace and be of good behavior.” It has meaning for a “peace bond” under s. 810 and pursuant to the common law. It also relates to the historical creation of trespass as a citizen’s means to address breaches of peace on private property - Harrison v. Carswell, [1976] 2 SCR 200. The term is also relied upon in Jobidon as a justification for the English common law prohibition against consensual fist fights as they notoriously lead to breaches of the peace. Finally, in R. v. Kerr, [2004] 2 SCR 371, the breach of the peace is discussed in relation to the required elements of s. 88 offence of possession of a weapon for a purpose dangerous to the public peace.

What exactly is a “breach of the peace”? The phrase was considered in Frey v. Fedoruk et al. a 1950 Supreme Court of Canada decision on a claim of false imprisonment and malicious prosecution. The claim arose when the Appellant was placed under a citizen’s arrest for unlawfully acting “in such a manner likely to cause a breach of the peace by peeping at night through the window.” Apparently, the window was curtain-less, which caused the defendant to chase the Appellant down the street and effect a citizen’s arrest. Justice Kerwin, in concurring with the majority in allowing the appeal for the Appellant, relied upon the following definition of the phrase “breach of the peace” from Clerk and Lindsell on Torts (then in its 10th edition and now, impressively, in its 21st iteration):

“A breach of the peace takes place when either an actual assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not breach of the peace. Thus a householder - apart from special police legislation - cannot give a man into custody for violently and persistently ringing his door-bell.”

The majority too preferred a more restrictive definition of such a breach of the peace, which did not contemplate a potential vigilante reaction but was more akin to a “riots, tumults, and actual physical violence.” The broader interpretation, so the Court held, was more applicable to the special case of forcible entry and forcible detainer pursuant to s.72, which as I earlier stated, we will discuss further down this Criminal Code road. In any event, the Court found the Appellant’s conduct did not amount to a known offence in criminal law as there was no breach of the peace and mere trespass was not a criminal offence.

Sections 30 and 31 grant authority to a citizen who witnesses such a breach of the peace to prevent it under section 30 and permits a police officer to arrest a person breaching the peace under s. 31. The sections read as follows:

Preventing breach of peace

30. Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.

Arrest for breach of peace

31. (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

 (2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace.

As already recognized in the case I previously referred to, Frey v Fedoruk et al, the concept of breach of the peace is old indeed and certainly the authority to prevent such a breach and arrest on the basis of such a situation comes to us from the English common law tradition. The eminent English legal scholar, Glanville Williams, thoroughly discussed this concept in his oft-quoted seminal article,  “Arrest for Breach of the Peace”, [1954] Crim. L. Rev. 578. Please note this article cannot be found online but an excellent discussion on his views are examined in The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams edited by Dennis J. Baker, Jeremy Horder, in the chapter on “Preventative orders and the rule of law.” I highly recommend this book. This excerpt of the book can be accessed on Google Books. Glanville Williams lucidly explains the purpose behind the English common law “breach of the peace” provisions as preventative in nature.

Section 30 is essentially a legal justification for the use of force and therefore it is important for defence counsel to keep this section in mind when representing an accused for a violent offence. An accused who relies on this section must use no more force than is necessary and it must be proportionate to the potential harm inflicted by the continuance or renewal of the breach of the peace.  However, as with any legal defence, there must be an “air of reality” to the defence before the trier of fact will consider it. Again, it must be remembered that the meaning of “breach of the peace” as previously discussed also circumscribes the defence. Also be mindful of some of the other words and terms used in the section – as the defence will have to establish the existence of these terms as well in order to rely on the legal justification. The person must “witness” the events. Additionally, the person is merely required to “interfere.” The dictionary definition of “interfere” is “to become involved in the activities and concerns of other people when your involvement is not wanted.” This is a much less onerous requirement than an actual use of force. Also, this section, as mentioned previously, also applies in preventative situations where there is a potential for a person to become involved in a breach of the peace.

Section 31 is temporally connected to section 30 as it contemplates the arrest of an individual who is breaching the peace and who, the arrestor believes on reasonable grounds will join or renew any such breach. Here the arrestor must either “witness” the events or receive an accused from a person who has witnessed the events. The actions, as is usual for these justifications and protections, must be reasonable in the circumstances. The section therefore gives an officer or an assistant the power to arrest in the circumstances and the right to take into custody a person who is detained pursuant to section 30.




Sections 28 and 29 – Executing A Warrant: Episode 35 of the Ideablawg Podcasts on the Criminal Code of Canada

In this episode, I will discuss two sections of the Criminal Code pertaining to the execution of a warrant for arrest.  Section 28 is another section protecting those who enforce the law from criminal responsibility in certain circumstances. The circumstances in this instance is executing a warrant for an arrest of a person who is not the person named in the warrant.

The person so executing the warrant is only protected against this “mistake,” pursuant to s. 28(1), if he or she believed “in good faith and on reasonable grounds” that the person he has arrested is the person named in the warrant.  Similarly, under s. 28(2)(a) any person assisting in the execution of the warrant is also relieved from criminal responsibility if he or she believed that the person arrested is the person named in the warrant. Notice that this belief is not required to be “in good faith and on reasonable grounds.”

Finally, in section 28(2)(b), a prison official or “keeper of a prison” who is required to “receive and detain” a person pursuant to the authority of the arrest warrant, is relieved from criminal responsibility where the keeper believes the person so detained is the person named in the warrant. Again, there is no requirement that this belief be “in good faith and reasonable.” It should be noted that the term “prison” is defined under s. 2 of the Code and includes “a penitentiary, common jail, public or reformatory prison, lock-up, guard-room or other place in which persons who are charged with or convicted of offences are usually kept in custody.” Therefore, this section would protect from criminal responsibility the police officer in charge of the police station lock-up.

There are of course possible civil implications for arresting the wrong person for which the section does not provide any immunity. Indeed, at common law the person executing a warrant against the wrong person could be liable for false imprisonment. However, evidence of good faith could mitigate the damages. In the 1968 case of Fletcher v. Collins et al. , the trial judge dismissed an action for assault, false arrest and false imprisonment against the police for arresting the Plaintiff, who had the same name as the person in the warrant but was not the person in question. In that case, the appearance of the Plaintiff fitted the general description given of the suspect. Furthermore, the Plaintiff’s belligerent attitude upon arrest reinforced the officer’s belief that he had arrested the correct person. The court found that not only were the officers acting in good faith but they were also acting as a reasonable person would in the circumstances.

Section 29 approaches the granting of immunity from criminal responsibility differently than other such sections. It is useful to set out the whole section as follows:

            29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

            (2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of

            (a) the process or warrant under which he makes the arrest; or

             (b) the reason for the arrest.

(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility.

Section 29(1) sets out a duty or responsibility of the person executing a warrant or process to have the document, if feasible to do so, and to present it upon request. There are different types of warrants referred to in the Code such as a search warrant under s. 487, a telewarrant under s. 487.1, a bench warrant under s. 597 of the Code and an arrest warrant under s. 83.29. The word “process” is not defined in the Code but there are references in the Code, which can help define this term. For instance, process is referred to in the headings of certain sections, such as s. 507, which relate to legal documents that are issued by a court of competent jurisdiction. Often these documents require the accused’s attendance in Court such as a summons, a warrant or a notice. Process may also relate to the seizure of property such as under s. 270 or to civil process under s. 176 or to the powers of the Court of Appeal under s. 683.

Often s. 29 is relied upon to require police officers executing a search warrant to have the warrant available for presentation in order to provide the person with information relating to the reason for the search and to provide information relating to the authority of the search, which would inform and assist in the person’s assessment of his or her legal position. However, this duty does not require the officers to automatically produce the warrant but to merely have it and produce when asked to do so.

Historically, as thoroughly discussed in the 2000 British Columbia Court of Appeal case of  Bohn, this section is a codification of the common law although the section prior to amendment in 1953 required a person executing a warrant or process to have the document and to produce it upon request, without the present condition that this be done only if “feasible.” In the 2010 Supreme Court of Canada Cornell case, the majority and dissent took very different views of s. 29. The majority decision written by Justice Cromwell, determined that in the context of a search of a premises, the objectives of the section would be fulfilled as long as a member of the search team possessed the search warrant. In that case, the lead investigator possessed the warrant but he did not take part in the initial search when the tactical team first entered the premises. In a strongly worded dissent written by Justice Fish, a failure in the duties under section 29 were described as a “violation of a venerable principle of historic and constitutional importance,” which was “not a technical or insignificant breach of the law.” Thus, for the dissent the fact that the first officers to enter the premises did not have the warrant in hand was a violation of s. 29.

Section 29(2) is a more specific duty requiring those who arrest a person, with or without a warrant, to give notice to the person of the warrant or the process under which the arrest is being made or to give notice of the “reason for the arrest.” The duty is only required “where it is feasible to do so.” Even if the duties under section 29 are not fulfilled, s. 29(3) protects the person from criminal responsibility.

In the 1973 Supreme Court of Canada Gamracy case, the Court determined that s. 29(2) applied to arrests without a warrant and s. 29(1) did not apply. Further, s. 29(2)(a) and 29(b) should be read disjunctively. Therefore an officer making an arrest without a copy of the warrant discharges his or her duty by advising the person of the existence of the warrant or process under which the arrest is being made. There is no subsequent duty for that officer to present the actual warrant or process.

The Charter has, to some extent, constitutionalized s. 29(2)(b) under s. 10(a) requiring a person on arrest or detention the right to be informed “promptly” of the reasons. Clearly, the Charter right is more stringent as s. 29(2) only alleviates the person from fulfilling this s. 29 duty if fulfillment is not  “feasible.” Thus an officer simply advising a person that there is a warrant in existence may not fulfill this Charter duty: see R. v. Wrightman, 2004 ONCJ 210 (CanLII).  Ultimately, whether or not a failure to comply with s. 29 amounts to a Charter breach will depend on the facts: see the ABQB 2014 case of R v Gerlitz where such a failure did not amount to a Charter violation.






A Short Note On The Impact of the SCC Carter Decision On Section 14 of the Criminal Code And On Consenting To Bodily Harm

In a previous Podcast, I discussed section 14 of the Criminal Code as the codification of a common law prohibition that a person is not entitled to consent to his or her own death. In that episode, I referred to the pending Supreme Court of Canada Charter challenge to the section as it related to the right to die. Recently, the Court released the Carter decision on the issue and, as many predicted, sections 14 and 241 were deemed constitutionally invalid to the extent that they prohibit a competent adult from seeking physician-assisted death where the person clearly consents to death and has a “grievous and irremediable medical condition,” which causes intolerable chronic suffering to the consenting individual.

The implications to section 241, which we will come to later in the Podcast series, will no doubt require a complete overhaul of the section. Considering the Federal government has a year to contemplate and re-legislate in the area, I have no doubt by the time we arrive at section 241, we will be looking at a very different section than present.

But how about section 14? How can the statute writers approach this section to ensure it is consistent with the Carter decision? Further, how does this decision impact the common law principle enunciated since Jobidon, which precludes individuals from consenting to bodily harm in certain circumstances. By extension, any  argument re-opening this discussion on Jobidon may impact the law concerning sexual assault and the issue of “rough” sexual activity. I have discussed these issues in a previous blog entitled What’s Wrong With Jobidon.  Although I leave it to the Reader to review this posting to understand and imagine the possible implications of revisiting Jobidon, I will suggest that an argument may now be made that clearly consenting competent adults should be able to engage in “rough” sexual activity as long as both consenting parties adhere to the scope of that consent.

Returning to the issue of section 14, Canada is the only commonwealth country to date, which has legalized physician-assisted death. Indeed, in the New Zealand Crimes Act 1961, which is a codification of criminal law similar to our Code, section 63 prohibits consenting to death in very similar terms to our own Code prohibition. Of note, is the UK experience where the common law principle prohibiting consenting to death is essentially codified through the Suicide Act 1961. Similar to Canada’s position before the Carter decision, a person could commit suicide but could not seek assistance to end life.  Since 2010, the UK Crown Prosecutors have a policy on assisted suicide charges to help guide the Crown on the discretionary decision-making process to prosecute such cases or not.  Of note, however, is the 2002 European Court of Human Rights decision in Case of Pretty v. The United Kingdom. The Applicant was paralyzed and suffering from an incurable degenerative disease and sought the DPP ‘s (UK Director of Public Prosecutions) agreement to grant immunity from prosecution should her husband assist her in ending her life. The DPP refused such consent and the European Tribunal, in determining whether by refusing such immunity the UK was in violation of various articles (2,3,8,9 and 14) of the Convention for the Protection of Human Rights and Fundamental Freedoms, reviewed the Canadian law at that time, including the Rodriguez case. Ultimately, the Court found that the UK legislation and policy position did not violate the Convention. It is useful to review this decision to understand how these Convention articles to some extent mirror the sections found in our own Charter.

This paucity of examples from similarly situated legal systems – English common law - may prove to be a difficulty for Canada in crafting an appropriate legislative response to the Carter decision. Canadian legislative drafters will need to look to American laws (see the Death With Dignity Act – Oregon) and Continental European laws (see the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act) to hopefully arrive at a uniquely Canadian response, which embraces Charter values and is consistent with our concepts of a free and democratic society.




Episode 34 of the Ideablawg Podcasts on the Criminal Code of Canada: Sections 27 and 27.1 – The Use of Force in Preventing the Commission of an Offence

 In the last episode we discussed the Criminal Code sections pertaining to the excessive use of force. This section recognizes that force may be justifiably used in certain circumstances but even so, must be used reasonably, proportionally, and when necessary. Sections 27 and 27.1 continue this conversation of the appropriate use of force in providing justification, in certain circumstances, for those who use force to prevent the commission of an offence. Section 27 provides a general justification while section 27.1, being a new amendment to the Code from 2004, provides a specific justification relating to acts committed on board an aircraft.

What must be remembered when we discuss these Code sections is that the elements of an offence resulting from the force used are proven. In other words, if the act is an intentional application of force without consent and the intention to commit this act is present, all of which the Crown can prove beyond a reasonable doubt, then an assault has occurred and but for the justification the person so applying the force would be convicted of a criminal offence. This is in line with the legal defences known as justifications recognized by common law and our criminal law through the Code. We will discuss the concept of self-defence as we move through these sections, but we must recognize we are not suggesting the essential elements of the crime cannot be proven but that the person’s actions are justified on the basis of a recognized legal defence.

 We shall first look at section 27, which reads as follows:

Every one is justified in using as much force as is reasonably necessary

 (a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might            be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).


This section has basically remained the same since the 1892 Criminal Code. It contains the essentials of statutory and common law concepts of self-defence by requiring the force used to be no more than is reasonably necessary.

However, the section, under subsection (a), restricts the reasonably necessary use of force to the prevention of the commission of an offence for which the person could have been arrested without a warrant and only if that person’s actions would “likely” cause “immediate and serious injury” to person or property. The Code has a number of sections, which pertain to the arrest of a person with or without a warrant. Most notably, section 494 outlines the circumstances where any person may arrest another for an offence without a warrant and section 495 outlines when a peace officer may arrest a person without a warrant. As section 27 refers to “every one,” it covers both an arrest by a citizen and an arrest by a peace officer. Section 494, which I do not want to discuss in detail as yet, was recently amended as a result of some high profile lobbying by storeowners, who wanted the ability to pursue an alleged shoplifter for the purpose of a citizen arrest. Prior to the amendments such arrest was predicated on the person immediately arresting a person found committing an offence in relation to their property.

Although the arrest provisions in the Code are circuitous, in the end the only people who should be arrested without a warrant are those charged with more serious indictable offences or those who may be charged with less serious offences but will not show up for trial unless arrested or there is a public interest in arresting the accused. The public interest would therefore require an arrest where the accused won’t identify him or herself or if the offence might continue if no arrest is effected such as in an impaired driving offence. Also an accused may be arrested without a warrant where evidence will be destroyed or tampered with should the accused not be in custody. Ultimately, even after arrest, the accused can still be released by appearance notice or summons.

Even if the offence is one for which the person could be arrested without a warrant, the force used to prevent the commission of the offence cannot be justified unless the accused’s actions would “likely” cause immediate and serious injury to person or property. There is no Criminal Code definition of “serious injury.”  According to the dictionary meaning, injury means any “harm or damage.” “Serious” is defined as a significant event with possible dangerous results. In accordance with the 1991 Supreme Court of Canada McCraw case, “serious bodily harm” was defined as “any hurt or injury that interferes in a grave or substantial way with the physical integrity or well-being of the complainant.” Section 27 refers not only to serious injury of the person but also of property. Also, the serious injury need not have occurred but need only “likely” to occur, meaning that the serious outcome may be the likely result of the actions as opposed to the certain results of the action.

Subsection (b) of section 27 justifies the use of reasonably necessary force when the person using such force believes, on reasonable grounds, the suspect is doing acts that would lead to the commission of an offence in the circumstances as outlined under 27(a). In other words, the person using force has an honest and reasonable belief that the acts fulfill the criteria as outlined under (a). As (b) focuses on the person’s belief, force may be justified under this section even if the acts did not amount to a commission of an offence under (a) as long as the subjective belief was reasonable in the circumstances. This assessment is therefore a blend of subjective and objective factors, consistent with the kind of assessments done in determining the applicability of the defence of the person and property provisions under sections 34 and 35.

Section 27.1, is a new addition to the Code and extends the justified use of force to circumstances on board an aircraft. It employs slightly different wording than the broader s. 27. In fact the section, in my view, appears to be a better worded section probably because it is a newly written section.  Section 27.1 reads as follows:

(1) Every person on an aircraft in flight is justified in using as much force as is reasonably necessary to prevent the commission of an offence against this Act or another Act of Parliament that the person believes on reasonable grounds, if it were committed, would be likely to cause immediate and serious injury to the aircraft or to any person or property therein.

(2) This section applies in respect of any aircraft in flight in Canadian airspace and in respect of any aircraft registered in Canada in accordance with the regulations made under the Aeronautics Act in flight outside Canadian airspace.

This section clearly sets out a justification for use of force on board an aircraft if it is reasonably necessary force used to prevent a commission of an offence for which the person believes on reasonable grounds would likely cause immediate and serious injury to any person or property within the aircraft. Again the assessment involves subjective and objective determinations, as the person’s subjective belief must be based on reasonable grounds. Also note that the offence need not be one for which the accused must be arrested without a warrant but for any offence either under the Code or any federal statute such as the Aeronautics Act. Subsection (2) specifies that that the acts must occur on any aircraft as long as the aircraft is in Canadian airspace or in international airspace as long as the aircraft is registered in Canada.

Parliamentary debates and backgrounders on section 27.1 suggest that the Liberal government, in power at the time, requested these amendments, not to change the general provisions under s. 27, but to ensure that such protection was extended to the appropriate use of force on a Canadian aircraft “outside of Canadian airspace.”

It should finally be noted that together with this new section 27.1, the government further amended the definition of “flight” under section 7(8) of the Criminal Code to include reference to s. 27.1. An aircraft is “in flight,” in accordance with that definition until the later of the time at which the door is opened for disembarkation or until, where the aircraft makes a forced landing, in circumstances where the owner or operator of the aircraft is not in control, the owner or operator of the aircraft resumes such control of the aircraft. Clearly the definition of “in flight” has been extended to include the use of force to prevent possible terrorist acts relating to the highjacking of an aircraft up until the suspect is overwhelmed and is no longer in control of the aircraft.



A Fresh Look at Fearon: How Language Informs The Law

A case commentary typically expounds on the legal doctrinal issues raised by the decision and rarely looks at the judgment as a literary document. The final full SCC judgment of the year, Fearon, has been much discussed on the doctrinal level but as a final 2014 legal send-off, a different kind of case commentary is in order.

On a literary linguistic level, the Fearon case is a fascinating example of how the majority and the dissent employ differing or shall we say dueling word usage. The choice of terminology is not only intended to signal a very particular perspective but firmly connects the decisions to doctrinal perspectives emanating from prior cases. This continuity with the past provides precedential value to the two decisions and challenges us, as readers, to determine which decision is really the right one. Hand in hand with this analysis, is the revealing metaphors abounding in these decisions.

Let’s first look at the majority decision written by Justice Cromwell. The first term used in this decision is the phrase “truly incidental” as in the police generally (note that the general versus the specific is also underlined in the majority decision) have a common law power to search a cell phone incident to arrest if the search is truly incidental to the arrest. Not just incidental but truly incidental. In the judgment there are 22 incidents of this phrase, all in the majority decision! Yet, in terms of previous SCC cases, the term appears only in the Caslake decision, which found an “inventory” search of an accused’s vehicle, hours after arrest, invalid as such a search was not “truly” incidental. For a search to be truly incidental, there must be a “valid purpose” connected to the arrest. By the way, the term “valid purpose” pops up 5 times in the majority judgment.

Caslake is referred to 15 times in the judgment, with 12 references in the majority and 3 in the dissent. The dissent refers to the generalities of Caslake - as to when a warrantless search may be appropriate - and does not mimic the s. 8 language as the majority does. Although “truly incidental” is found in only 2 SCC criminal cases, the term is used in lower court nomenclature. In Ontario, including Fearon, there are about 46 cases using the term but they all occur after 1998, the year the SCC decision in Caslake was released. Although the Manitoba Court of Appeal decided the lower court decision in 1995, Caslake, was not, as yet, part of the s.8 vocabulary.

Before we move onto other terminology, note that the phrase “strictly incidental” is used only once as is the phrase “properly incidental.” According to the Merriam-Webster Dictionary, “truly” is defined, for Fearon purposes, as “without question or doubt” and “strictly” means “rigorously conforming to principle or a norm or condition.”

The word “prompt” is used 31 times, with only two of those occasions by the dissent and for very different reasons. The majority uses the word “prompt,” defined as “performed readily or immediately” to provide the underlying reason for a search incident to arrest as the immediate need to investigate the offence by gathering crucial evidence.  It is the timeliness and the speed with which the police must pursue this investigation, which underlies the majority decision. Conversely, one of the times the dissent uses “promptly” is in reference to Justice Cromwell’s majority decision and the other occurrence is to highlight how quickly the police, in the case, applied for a warrant when case law suggested they needed to do so. Thus the term “immediate” or “immediately” is used often throughout as well.

Another phrase used liberally throughout the majority decision is the phrase “law enforcement objectives,” which is used 26 times, 4 of which is in the dissent. Again, 3 of those 4 occasions in the dissent are direct references to Justice Cromwell’s majority decision. This term is used in 4 previous SCC cases, 3 of which are search and seizure cases being the Law case from 2002 – privacy interest in stolen property; Chehil – sniffer dog case involving the search of vehicles from 2013; and the Stillman case of 1997 the case on the seizure of bodily samples and discussed at length in Fearon. The term “law enforcement” is further described in the majority judgment as being “important” 12 times in the majority.

The word use is much different in the dissent. Indeed, the atmosphere of the two decisions differs dramatically. Justice Cromwell’s decision has a law and order aspect reminding us of the need for investigatory powers to enhance and uphold the rule of law. As will be discussed below, the choice of words highlights this theme through the use of metaphors involving balancing and weighing and metaphors involving the limitation of space and time.

In contrast, the dissent is a decision marked by Charter values and modernity – it reads like a law school paper on constitutional rights and freedoms, inviting the reader to muse on the lofty ideals crucial to a free and democratic society. Indeed that term, “free and democratic society” appears three times in the dissent (plus “democracy” appearing once) and appears there only with no such Charter values relied upon in the majority, other than the balancing of rights required under s.8.

Other Charter values involving individual rights and freedoms are also relied upon in the dissent decision but it is the word “privacy” that trumps them all. This word is used 123 times in the decision with the word used 37 times in the majority but a whopping 86 times in the dissent. Certainly “privacy” is a word that at some point must be used by the majority when the decision speaks to the balancing of rights under s. 8 but more telling is the use of the word “private” in the decision. It occurs once in the majority but only in reference to strip searches and “private areas.” In the dissent however “private” occurs 27 times to describe “private digital devices,” “private lives,” and the “private sphere,” among some of the uses of the term. Again, this term is signaling the core of the dissent’s decision that privacy is at stake in the case and therefore it is privacy and the living of the “good” life protected by Charter values which are be the controlling issues in the case.

Not only are certain terms and phrases utilized to bolster each of these decisions but the decisions use the literary device of metaphor to solidify and justify the decisions as well. Thus, both the majority and dissent use balancing and weighing metaphors (25 times) to support different outcomes. The majority relies heavily on space metaphors and the desire to delineate the space wherein the rule of law must reside requiring the use of the words “scope” and “parameters” and “limits” and “points” by the majority. The majority also uses work or structure metaphors, using the term “framework,” “task,” and “link.” The dissent uses social words connoting society and community such as “lives,” “relationships” and “intimate” with a liberal use of emotive terms such as “likes and dislikes, our fears, hopes, opinions, beliefs and ideas.” The metaphor of “big brother” also looms large as a pointed reference to Orwell’s 1984 figures in the dissent. In contrast the concept of freedom and the ability to choose one’s own path is highlighted.

There are many other nuggets in this judgment worth discussing as a counter-point or enhancement of a pure doctrinal study of the case. It will indeed be interesting if any future SCC cases utilize this stark linguistic contrast or if it is merely a result of the impassioned differences on the SCC on this particular issue, which determined choice of language. 

I must at this point acknowledge Professor Jonnette Watson-Hamilton, for whom I did some research on metaphors and language many years ago while pursuing my Masters at the University of Calgary, Faculty of Law. She introduced me to the critical theories of language involving the use of metaphors in legal decision-making – a “truly” illuminating experience! Review her articles written to access her publications involving language and metaphor.

For further information on this, start with the seminal works by cognitive linguist George Lakoff, particularly Metaphors We Live By, which Lakoff wrote with Mark Johnson. There are now multiple scholarly articles involving metaphors and linguistic techniques in legal discourse. The starting point for this is found in the articles written by Robert Cover, a fantastic legal scholar, sadly now deceased. Read his two seminal articles entitled Violence and the Word and Nomos and Narrative. I have also written a previous blog on Cover called Is Violence The Word? Additionally, I have written two previous blogs using metaphors as part of the legal analysis in Impression and Claim: Are They Both The Same? and in Blogs As Graffiti.


My #clawbies2014 Nomination 2014: CanLII Connects

It is Clawbie or Canadian Law Blog Awards time again and this year I am nominating CanLII Connects. Now before I justify my choice, I want to make it perfectly clear that I am a proud contributor to CanLII Connects but this is NOT the reason why I strongly believe CanLII Connects should be recognized. Instead, it is the concept, the very idea of CanLII Connects that drives my nomination. It is the brainchild or should I say web-baby of Colin Lachance, who had a vision of an open web-based co-operative cyberspace for legal thought and innovation; a safe space in which lawyers could exchange ideas freely and without prejudice. A space unbounded by the four walls of an office, a boardroom or a courtroom where lawyers could share knowledge as well as their passion for law across Canada and the global community.

And so at the close of 2014, I tip my blog to CanLII Connects and all those bloggers who post insightful commentaries and help me and many thousands of others to understand that the rule of law is not just a compendium of static principles but is rather something more organic as they derive a deep richness from the multi-faceted perspectives of CanLII Connects.

 Bravo to CanLII and to the dedicated CanLII Connects Community!

Episode 33 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 26 - Criminal Responsibility for Excess Force

We have already discussed sections, which protect those authorized persons when administering and enforcing the law. Section 26 presents the converse situation when those so authorized step over the line and employ excessive force. In those circumstances the authorized person is no longer protected and is criminally responsible.

The section reads as follows:

Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

Except for slight grammatical changes, this section is as it appears in section 58 of the 1892 Code. Although the section clearly criminalizes the use of excess force, the section does not describe the degree with which the force must be excessive. In other words, although excessive force is prohibited exactly what constitutes such force is not outlined. It is therefore case law, which must delineate between the force authorized and the force prohibited. However, as indicated by the section, the excessiveness of the force shall be determined “according to the nature and quality of the act.” Thus, the trial judge determining an issue of excess force must be guided generally by the circumstances of the case and specifically by the character and attributes of the act of force itself.  

As an aside, it is interesting to note that the phrase “nature and quality of the act” is used elsewhere in the Code as it relates to someone suffering from a mental disorder under section 16. The phrase was also used in the old iterations of rape in the Criminal Code in circumscribing when fraud vitiated consent, which was when the consent was obtained “by false and fraudulent misrepresentations as to the nature and quality of the act.” Although the actual phrase is no longer referred to under the sections for assault or sexual assault, the phrase is still used by the courts in discussing when fraud vitiates consent pursuant to s.265(3)(c). Even so, the phrase does still appear under s.159(3)(b)(i) of the Criminal Code which outlines when fraud vitiates consent in an anal intercourse offence. It should however be noted that although this section still appears in the Criminal Code, the Court of Appeal for Ontario has found the section to be of no force and effect pursuant to s.15 of the Charter. We will discuss the possible reasons for why this section is therefore still "on the books" this when we arrive at this specific section, which will happen, but will be much further down this podcast road.

But returning to s. 26, we need to ask what does the “nature and quality of the act” mean as it relates to s.26? First, the court will consider whether the decision by the authorized person to use force under the various sections protecting those who are justified in using force, such as sections 25, 25.1 and 27 to 32, is reasonable in light of the degree of force used and the circumstances surrounding the use of it. The assessment is therefore an objective one and does not consider what is going on in the mind of this particular person at the time of the events but what a reasonable authorized person aught to have done in the circumstances.

The following are some of the factors, the court might consider in assessing the reasonableness of the force used where the force is used to effect an arrest. The court may consider the nature and seriousness of the offence for which the arrest is being made. The basis for the arrest and the ensuing reasonable grounds as well as the legality of the arrest itself may be considered. Another factor may involve the reasons for detaining the person to be arrested. A further consideration is whether or not the force was required for protection or for the protection of others. The likelihood of escape and the possibility force was needed to ensure the capture of the person is another factor. Also considered may be the likelihood of the continuation of the offence if force is not used. The physical attributes of the arrestee may be a consideration. Certainly use of force training and policing standards or policies will also be a factor in determining if the force used was excessive. Included in that assessment, the trial judge may refer to escalation or de-escalation techniques as well as the likelihood that the arrestee would respond to the authorized person’s authority. Another possible consideration might be the necessity of arresting the person in the circumstances and whether reasonably there was another time and place, which would have produced a less violent result. This list is just some of the circumstances that may be considered by a trial judge. It must also be remembered that s.26 does work in tandem with those other sections authorizing force and therefore both sections are in issue and may provide direction. For example, as discussed previously, the inquiry differs if the force is intended or likely to cause death or grievous bodily harm.

It should be remembered that s. 26 not only applies to the police or peace officers but to anyone who is authorized by law to use force. This can include a private or civilian person who is not regularly employed to administer or enforce the law but is acting as an authorized person at the time in question. A person effecting a “citizen’s arrest” for example would fall under both sections 25 and 26. Another class of individuals subject to s. 26, which we will discuss later, is schoolteachers, parents or persons standing in the place of a parent who are authorized to apply force to a child who is in need of correction pursuant to s. 43 of the Criminal Code. Surgeons may also be subject to the excessive force provision if they do not perform an operation with all reasonable care and skill as required under s. 45.

The issue of excessive force is highly complex, fact driven and based on the interpretation of legal authorities. Often, the court will hear expert evidence on the reasonable use of force and the acceptable practices, policies and training in the area. In the end, however, it is the principles of proportionality, reasonableness, and necessity, which will determine whether or not the appropriate force was used in the circumstances.






A Short Note On Why Behavioural Economics Should Matter to Criminal Lawyers

In some sense this blog posting is both a book review and a legal analysis. It is a book review as this blog arises from my reading of the Daniel Kahneman’s book entitled Thinking, Fast and Slow. It is also a legal analysis as the ideas and theories arising from Kahneman’s Nobel Prize winning research form the basis of my suggestion that it is time to critique some traditional criminal law principles. In the end what this blog is about is connections and how we, as in the legal profession “we,” must be cognizant of new and innovative developments in other subject areas, in this case social sciences, in order to craft new and innovative arguments. New arguments can lead to new law and this book might just be the catalyst for this kind of change.

I will not belabour the specifics of the book nor will I give a deep analysis of it. That kind of discussion should be done in a formal setting as in a well-reasoned journal article but I will leave that to a later opportunity. Essentially, Kahneman and his research partner did a series of break through behavioural testing which turned the field of economics on its head.  The two researchers, as psychologists, approached the construction of the rational Economic or Econ person in a totally different manner than the economists did previously. When I say previously, I mean the theories had been in place and used for decades. This would be, in Kahneman’s view, a good example of theory-induced blindness. In any event, Kahneman showed that the basic Econ, which was a staple figure in economic theory, was not in fact rational and at times, even down right irrational. Well, not really irrational, as the research showed there were a pattern to the behavioural responses but not the expected pattern of the Econ. Instead the Econ was really a Human – someone who made choices, often seemingly economically irrational choices, not based on the utility theory favoured by the economists but based on other more ephemeral reasons including fear, loss, and bias. What caused such a stir in the field of economics was that Kahneman and his partner could actually prove, through research data, that this was so. The rational Econ was a false promise and not the stuff upon which sound economic theory should be based. Additionally, what economic theory needed were better reference points – starting points from which the Human could become a better decision maker. In other words, the Econ was not working with a full deck or full information upon which these economic decisions or even life changing decisions should be made.

There is, of course, more to the book and the prize winning economic theory, called prospect theory, which arises out of Kahneman’s research. For instance, the first part of the book dwells on the cognitive theories of how and why we make decisions or choices. According to Kahneman we have an intuitive System 1, which thinks fast enabling us to make split second decisions and gives us speedy answers to questions like one plus one or the colour of the sky. We also have a slower or lazier System 2, which kicks in when we need to give a decision some thought such as the answer to 124 times 26 or remembering the lines of a poem we may have learned when we were young. These systems do not work totally independently. Although being aware of these two systems we can improve the correctness of our outcomes by slowing down our thought processes to allow System 2 to take over so we can improve our chances of “getting it right,” mostly we reflexively defer to our System 1, particularly when faced with exigent circumstances. This often produces acceptable outcomes as our System 1 works so fast as it is primed with crucial experiential information. However, these stored memory fragments are sometimes incorrect leading us to make bad choices and erroneous decisions. In those instances, we have no real choice but to simply go along for the ride.

So how does this lead to a critical analysis of legal principles? By extrapolating and applying these research based theories to the underlying reason for certain legal constructs, we can argue that certain unquestioned legal principles used in criminal law such as the “reasonable person” standard and the well-accepted premise that we intend the natural consequences of our actions (see my blog on the Walle case), may in fact no longer be valid. It is time, therefore, for the legal profession to break out of our theory-induced blindness and integrate, in the appropriate case, theories from other areas of the science and humanities to ensure that the law is a real reflection of society. Now, doesn’t that sound reasonable?


Any lawyer who has read Jobidon could see this coming: consent to the intentional application of force turning into a three ring circus – not a boxing ring mind you as that is “within the customary norms and rules of the game” and has “significant social value.” No, the atmosphere conjured is of course as a result of the breaking news on Jian Ghomeshi and although his situation will continue to be played out in social media, the legal community is welcoming the attention. What is the status of the law on the issue of sexual activity which is intended to and does cause injury but which is entered into by consenting adults? This is where issues of consent to assaults and sexual assaults intersect and yet the law thanks to Jobidon and JA is far from providing a bright line between the two.

 There is a lawyerly adage that bad facts make bad law and perhaps the Jobidon case fits that sentiment. Jules Jobidon was charged with unlawful act manslaughter as a result of a consensual barroom brawl, which Jobidon and the deceased took outside to settle. Jobidon quickly took the upper hand and within seconds the receipient of the punches lay unconscious and subsequently died. Did the deceased consent to a fistfight? Yes, but is consent a defence or phrased differently, does the Crown need to prove lack of consent as part of the actus reus of assault. On the face, s. 265(3) of the Code does not preclude consent being given under the Jobidon circumstances but underneath the Code, “illuminating” the Code as Justice Gonthier sees it in Jobidon, is the common law. It is the common law, through English authorities, most notably the 1980 House of Lords decision in Attorney General Reference, which stands for the proposition, enunciated in Jobidon, that intentional application of force, which causes bodily harm vitiates consent on public policy grounds. This “judge-made” policy is based upon, in part, the social uselessness of brawls. Society has changed from a macho flexing of muscles and no longer views physicality as a virtue, although, as Justice Gonthier points out, we still enjoy a “socially valuable cultural product” like stunts and daredevil activities. For Justice Sopinka however, Jobidon is guilty as charged, not because the common law as the archival repository of when consent can or cannot be available on an assault charge, but because Jobidon’s actions were outside the scope of the consent given by the deceased. This social utility view versus the scope of consent view will permeate the law on sexual assault as well.

The law on sexual assault developed differently. The watershed case is of course Ewanchuk, the case that launched a number of controversies both inside the legal community and outside when Justice McClung sent his letter of protest to the National Post. Leaving that aside, the Ewanchuk case is in some respects a breath of fresh air, a case dealing head on with sexual myths and stereotypes that a woman invites sexual advances through her dress and character. Famously, the case is known as the “no means no” decision, where a woman or man who does not clearly consent to sexual activity is not consenting to sexual activity. It has shades of the exchange between Elizabeth and Mr. Collins from Pride and Prejudice wherein he suggests her refusal of his marriage proposal is designed to increase his “love by suspense” as she “secretly” means to accept him. The Ewanchuk decision makes it clear, there is no implied consent in a woman’s refusal as consent must be freely and voluntarily given not assumed or implied. In this situation, public policy considerations were required to protect the vulnerable and to realign public expectations and realities.

However, at some point the unique issues surrounding sexual assaults and the common law approach to assaults would clash. In 1992, the English House of Lords in the Brown case split on the intersection of sex and harm.  In that case a number of individuals were charged with assault causing bodily harm. These men belonged to a group of homosexual sado-masochists who for a long period of time regularly met in “torture” rooms, as the House of Lords described it, “for the purpose of indulging in acts of sexual violence against one another, as a means of sexual fulfilment.” No permanent injuries were sustained and no medical treatment was sought. On occasion the sessions were videotaped for their own private viewing. None of the men involved complained to the police. The police involvement resulted from an officer “who stumbled by chance” on the videotapes. Indeed, the activity was viewed as private and consensual. The House of Lords was divided in decision on the case. the majority upheld the long held view, as enunciated by Jobidon, that there is no consent to bodily harm that is intended and caused. In the majority’s view

“appetites of sadists and masochists can only be  satisfied by the infliction of bodily harm and that the law  should not punish the consensual achievement of sexual  satisfaction. There was no evidence to support the assertion  that sado-masochist activities are essential to the happiness  of the appellants or any other participants but the argument  would be acceptable if sado-masochism were only concerned  with sex, as the appellants contend. In my opinion sado-  masochism is not only concerned with sex. Sado-masochism is also concerned with violence… In principle there is a difference between violence which  is incidental and violence which is inflicted for the  indulgence of cruelty. The violence of sado-masochistic  encounters involves the indulgence of cruelty by sadists and  the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared  to invent a defence of consent for sado-masochistic  encounters which breed and glorify cruelty and result in  offences under ss. 47 and 20 of the 1861 Act.”

The dissent cautioned against state interference into the private lives of citizens in favour of self-autonomy and "that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large." This caution to not extend the criminal law into areas of private choice and taste is consistent with Chief Justice McLachlin’s caution in the Mabior case that “The principal objective of the criminal law is the public identification of wrongdoing qua wrongdoing which violates public order and is so blameworthy that it deserves penal sanction.” 

Interestingly, the majority of my first year criminal law class agreed with the minority and likened the case to a sporting event, wherein all of the participants were aware of the “rules” beforehand and that the practices were within those enunciated rules. Again, there appears to be a tension between social utility, public interest, and the specific facts of a particular case. In the Brown case, the right facts did not produce a satisfactory result and there is an aura in the case of the criminal law overreaching into the decision making powers of an individual. Although in Justice Gonthier’s view in Jobidon “all criminal law is paternalistic,” the law is still a reflection of who we are as a society and what we stand for and cannot possibly be distilled down to “but it’s for your own good” argument. Certainly the English Law Reform Commission in a number of Consultation Papers has raised similar concerns. For further reading on the subject, read Windsor Law professor David Tanovich’s paper entitled “Criminalizing Sex At The Margins.”

Subsequent Canadian cases, at the provincial appellate level considered the Brown case with facts involving bodily harm caused during sexual activity such as in the Ontario Court of Appeal 1995 Welch case and the 2013 Zhao case. Although those cases differ in the facts, Welch was concerned with consensual sado-masochism sexual activity and the Zhao was not, both cases, relying on Jobidon, found bodily harm in the course of a consensual sexual relationship vitiated consent. However, in discussing the Welch case at paragraph 79 of the Zhao case, Justice Tulloch stated:

“Ultimately, much of the analysis in Welch is focused on the sado-masochistic nature of the circumstances of that case. I am neither persuaded that the authorities cited by the appellant nor the conclusions reached in Welch are particularly helpful to establish a generally applicable standard or threshold by which consent is vitiated in sexual assault causing bodily harm cases. Furthermore, the social utility of intimate sexual relationships is significantly different from that of consensual bar fights, as such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sexual context as suggested by the ruling in Welch.”

Justice Tulloch identifies what is wrong with Jobidon: how can the Jobidon fistfight scenario adequately provide authority in situations of consensual sexual activity that does, one would argue, produce self-satisfaction. The 2011 JA case from the Supreme Court of Canada has not clarified the law in this matter and in fact has left the door wide open. There are aspects of sexual activity resulting in bodily harm in the case but the case did not turn on this aspect but on whether an unconscious person can consent to sexual activity. Chief Justice McLachlin, relying on the two strands of authority found in Jobidon and Ewanchuk said no – consent must be of an operating mind and advance consent is not recognized in law.  As for the “sleeping beauty” problem, when a spouse kisses a sleeping spouse, the law according to the chief Justice is not perfect and may result in unsatisfactory situations but there are more problems occasioned by relaxing the general rule, that there is no implied consent for sexual offences, than in permitting exceptions. Although legally we may understand the Chief Justice’s justification in reality her failure to provide a solution leaves an unsatisfactory atmosphere to the case. In many ways, Justice Fish’s dissent, which echoes Justice Sopinka in Jobidon, is attractive: it is the scope of the conduct which matters. This issue will clearly be at the forefront of a future Supreme Court of Canada decision.

Returning to Jian Ghomeshi, leaving aside the media tumult and without judging the various versions of the actual events, we should not be focusing on the conduct but on the scope of the conduct – was it beyond the scope of the consent given, not implied or assumed, but given in the context? This, I would suggest, would take us beyond the archives of the common law and into the realities of the modern age that in many respects is beyond myths and stereotypes and is a society where women, who are not in vulnerable situations, can make choices – consensual choices – to live their life on their own terms.