A Long Holiday Read On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?: Episode Eleven Of The Ideablawg Podcast (And The Text Version!) On The Criminal Code of Canada

Codification can be a good thing: instead of searching multiple statutes to find the criminal offence for which your client is charged, as an English barrister must do, the Canadian lawyer just flips through the weighty but convenient Criminal Code. To be fair to England, they did try to codify their criminal law. In fact, our codified criminal law comes from that English attempt by Sir James Fitzjames Stephen. I say the English "attempt" as even though we Canadians embraced the codification concept, the English Parliament did not. For more information on the history of the Criminal Code and possible reform, I invite you to read my previous blog on the subject entitled The Criminal Code of Canada: Codification and Reform from February 12, 2012.

Codification can therefore provide much needed certainty of the law. There is no guess work with codification – we know it is a crime because the Code says so. Thus, the concept of ignorance of the law is no excuse from the Latin maxim of ignorantia juris non excusat, is crystallized in a compendium of sections of the Criminal Code and even is codified in it as we will see when we discuss s.19 of the Code.

Alas, however, this same reasoning can lead to the conclusion that codification can also be a bad thing. Firstly, codification leaves little room for interpretation. The Criminal Code, as a really, really, long statute, abides by the rules of statutory interpretation, which guides us on the application and meaning of this statute. According to another Latin maxim of statutory interpretation expressio unius est exclusio alterius or “expression of one is the exclusion of the other,” means that what is not written in the Criminal Code is not part of the Criminal Code. This principle is supported by other statutory interpretation rules such as the  plain meaning rule of statutory interpretation, which advises us that the words used in the Criminal Code mean what they ordinarily mean.

These rules have not gone unchallenged and there are interesting articles discussing those issues. For instance, the rule raises the question as to whether or not there truly is an “ordinary” meaning of a word when considering the differing cultures and perceptions of our multicultural nation.

Besides critics of these statutory interpretation concepts, there are other rules of interpretation, which seem contrary to these “closed book” rules, such as the ability of a court to “read-in” words or phrases to a statute to ensure its constitutional integrity. To be sure courts through the ages have read-in phrases and meanings in certain sections of the Code but they have not actually read-in a whole section. 

Thus, through the effect of codification, the Criminal Code captures and defines our criminal law, leaving very little room, if any, for change, unless Parliament so chooses. In this way the dynamic nature of society is not reflected through our laws. Certainly, however our Charter has added a fluid dimension to the Criminal Code by superimposing societal change, albeit incrementally, onto the written word. Instead of a closed book, the Code seems to be more akin to an e-reader, in which the internet can be accessed, on occasion, to elucidate the reader.

The second problem with codification is the isolation of the criminal law from the English common law tradition, which brings with it a rich and varied criminal law. Using another metaphor, codification is like a tree without its roots as common law is an important source of our criminal law. However, the whole purpose of codification would be defeated by the uncertainty caused by permitting the common law to exist outside of codification. How would an accused then know the charge for which he or she was facing without reference to a specific charge found in the Code if unwritten common law could still form the basis of a charge?

This last objection, to permitting the common law to stand as a system parallel to the Criminal Code, is also reflected in our Charter as a principle of fundamental justice under section 11(a) wherein a person charged with a criminal offence has a right to be informed of the specific offence without delay.

Thankfully, the framers of the Code did think of these issues and so we finally come to the sections which we will discuss in this podcast: sections 8 and 9 of the Criminal Code. But first we will look at section 9, which restricts the common law and ensures Canadian criminal law is consistent with the Charter. Section 9, under the heading Criminal Offences To Be Under Law Of Canada reads as follows:

Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730

(a) of an offence at common law,

(b) of an offence under an Act of Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or

(c) of an offence under an  Act or ordinance in force in any province, territory, or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction, or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

This section is actually an enabling section as it ensures that the Criminal Code has full force and effect in Canada and that no one can be convicted or discharged with an offence other than an offence under the Code. This was needed as prior to codification, the sources of law were varied and included laws of the United Kingdom, laws particular to pre-Confederation governments, and laws arising from common law.

It is interesting to note that the section bars punishment for these offences as opposed to prohibiting a person from being charged for these offences. I would suggest that the word “charged,” as under s. 11 of the Charter, refers to the laying of an Information against an accused person, an action which comes at the beginning of the criminal process as opposed to “conviction,” which comes at the end. Thus, the protection of this section is triggered at the end of the trial process when an accused is found guilty by the trial judge and a conviction is entered. The triggering words are similar to the ersatz (see my previous podcast/blog where I explain why I use this qualifying adjective) presumption of innocence found under section 6 of the Code. In effect then, someone may be arrested, charged, and tried for an offence under either 9(a) or (b) or (c), and even found guilty, but it is the judicial action after the finding of guilt and immediately before a conviction or a discharge is entered, which section 9 prohibits. As in section 6, the focus is on punishment and is unlike the Charter sections on legal rights, which so assiduously protect the accused throughout the criminal process; from detention to arrest to charges to pre-trial custody to trial and then to acquittal or punishment.

Of note, is section 11(g) of the Charter that gives a person charged with a criminal offence the right

not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.

This section seems to parallel section 9 but it may be interpreted as giving a broader protection by using the phrase “not found guilty,” and therefore protects an individual before a finding of guilt is made. After the trial judge makes a finding of guilt, the accused is not convicted as he or she may be discharged under section 730 of the Code. Although a discharge is not a conviction, and therefore the accused does not have a criminal record, it is a “sentence” or punishment under the Code. This does seem to be a question of semantics, yet an interesting one to ponder.

There is, however, an exclusion to this decree as the section permits a court to “impose punishment for contempt of court.” Thus, section 9 preserves the court’s “inherent and essential jurisdiction” to cite and punish someone appearing before it for the common law offence of contempt of court. The purpose of preserving this power, according to Justice McIntyre speaking for the Supreme Court of Canada in the Vermette case, was “necessary, and remains so, to enable the orderly conduct of the court's business and to prevent interference with the court's proceedings.”

However, the jurisdiction of the inferior court or provincial court differed from the inherent powers of the superior courts. While the provincial court could only cite someone for common law contempt where the actus reus or contemptuous conduct occurred in the face of or in the presence of the court, the superior court could also use their contempt power in circumstances where the conduct was outside of court or ex facie. This was due to the inherent jurisdiction of the superior courts to maintain discipline within their courts independent of statute as opposed to the provincial or inferior courts whose jurisdiction was purely statutory.

This common law power is still used in courts today, albeit sparingly, and is available even though there are perfectly appropriate charging sections in the Criminal Code, such as s. 139 obstruct justice and s. 131 perjury. I have represented an individual for common law contempt and the unique aspect of the offence is the ability of the accused to proffer an explanation or an apology for the contemptuous behaviour that may be accepted as “purging” the contempt charge. I say “may” as the apology may negate the mens rea required for conviction but a judge is certainly not required to accept an apology as vacating the contempt finding.

Let’s now return to the second section to be discussed today, section 8. We saw how Parliament ensured that the Criminal Code would safeguard an accused’s rights by limiting common law offences and now, section 8, extends this protection by permitting some common law principles, which inure to the benefit of the accused, such as common law defences. In particular, I will read section 8(3):

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

Therefore, all common law defences, unless they are “altered by or are inconsistent with” the Code are available to an accused. The defences specified by the section are “justifications and excuses,” which are complete defences to a criminal charge but apply even though both the actus reus and mens rea of an offence are proven. Although both of these defences are restricted to a reasonable response by the accused to external pressures, they do differ.

An excuse acknowledges the wrongfulness of the action but holds that the accused should not be punished for his or her actions as Justice Dickson stated in the Perka case,

a liberal and humane criminal law cannot hold people to the strict obedience of the laws in an emergency situation.

Examples of an excuse would be the defence of duress, as in the Paquette case, and the defence of necessity as in the Perka case.

Conversely, a justification is where the accused challenges the wrongfulness of the act  as in the circumstances where “the values of society, indeed of the criminal law itself, are promoted by disobeying the law rather than observing it.”

For a fuller discussion on the present law on excuses see my previous blog on duress and the SCC Ryan case entitled Not To Make Excuses, But The Unresponsiveness of the Supreme Court of Canada To The Defence of Duress.

Returning to the exception in the section, which suggests that if the common law defences alter or are inconsistent with codified defences, then the codified versions prevail, we must consider the defence of duress as codified under s.17. As we will discuss when we arrive at s.17, both the common law defence of duress and the section 17 duress are available to certain accused in certain circumstances. We will see that far from the caution that the common law defence where altered or inconsistent cannot stand in the face of the codified defence, the common law defence of duress has actually altered the codified version as a result of the application of the Charter. But we will come to this in due course.

Of course, there is a world of common law defences outside of the Code and outside of the rubric of justifications and excuses such as the common law defence of mistake of fact and the common law defence of mistake of law. Certainly, the common law defence of mistake of fact has been altered for sexual assault offences pursuant to s. 273.2. There are other common law defences, which sadly are sorely underused such as the de minimus defence, or the defence that the law does not consider trifling breaches of the law. These common law defences receive short shrift unfortunately due to the advent of the Charter and the subsequent Charter-weaned lawyers who believe Charter rights are the only kind of defence worth pursuing.

Finally, a note on the legislative histories of these two sections. Section 8 actually was our present section 9 and our present section 9 was the then section 7 until section 6 was re-enacted as the present section 7. Section 7, as you may recall in the previous podcast, involves offences on aircraft and offences occurring outside of Canada. Our present section 9 was enacted as section 8 in the 1953-54 Code amendments. The reversal occurred in the revisions under the 1985 Code when section 8 became section 9. To make matters even more confusing section 8 was present in our original Criminal Code of 1892 under the then sections 7 and 983. In 1906, the sections were combined and re-enacted as sections 9 to 12. The following revisions made a dizzying number of changes until the 1985 revisions re-enacted the then section 7 to the present section 8.

Confusing? As I have complained before in these podcasts, often the government has placed content over form by changing and adding sections to the Code without consideration for placement or sense.

On that historically obfuscating note, I wish one and all a very happy holidays and a happy new year. This podcast will return in January 2014 as we discuss the next section of the Criminal Code of Canada – section 10 when we revisit the common law offence of contempt of court and the availability of appellate remedies.

Episode 11Of The Ideablawg Podcast On The Criminal Code of Canada: On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?

Sections 4(4) to (7) – The Three “S” Words: Episode Seven of the Ideablawg Podcasts on the Criminal Code of Canada

Welcome to the Ideablawg Podcasts on the Criminal Code of Canada. This is Episode 7 and today we will finish discussing section 4 and the three “S” words: subjects, sexual intercourse, and service. The actual podcast can be found at the bottom of this text.

First, let’s turn to s. 4(4) and the word “subjects.” Remember that this section is truly a housekeeping section, whereby a variety of topics are covered, such as stamps as chattels, which we discussed in episode 5 or the meaning of possession in s. 4(3) from episode 6. Up to now, although the subject matters have differed, the subsections have had a definitional theme, meaning the subsections are clarifying the meaning or interpretation of each particular subject matter – stamps and possession being the examples already given.

Section 4(4) is also an interpretation section but is broad in aspect and does not refer to any particular subject matter but instead speaks to generalities. This section does seem out of place with the others and I do wonder why this subsection is not placed under the interpretation sections 1 to 3.

Let’s read section 4(4), which is entitled “Expressions Taken From Other Acts:”

(4) Where an offence that is dealt with in this Act relates to a subject that is dealt with in another Act, the words and expressions used in this Act with respect to that offence have, subject to this Act, the meaning assigned to them in that other Act.

It appears then that section is looking for consistency between Acts: if the Code refers to a subject which appears in another Act, then the meaning of that subject from the other Act is also the meaning of the subject under the Code.

Again, this section is a presumption – a presumption of consistency – the same subject referred to in different Acts are presumed to be the same. However, this presumption can be negated for if the Code defines the subject differently, then the differing meaning of that subject, as found in the Code, prevails.

A good example would be the offences in the Criminal Code relating to the subject of air travel, such as hijacking an aircraft under s. 76. The term “aircraft” is not defined anywhere in the Code but is defined in the Aeronautics Act, another piece of federal government legislation. According to section 4(4), the meaning of “aircraft” under the Code is the meaning of “aircraft” under the Aeronautics Act. So too, the meaning of “pilot in command” under the Code would be the meaning of “pilot in command” under the Aeronautics Act. But here is the twist: the term “pilot in command” only appears in the Criminal Code under the interpretation section 2 under the definition of “peace officer.” Section 2 defines “peace officer” under subsection (f) as:

 the pilot in command of an aircraft

(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft registered in Canada under those regulations,

while the aircraft is in flight.

Thus, the Criminal Code has broadened the definition of pilot in command in certain circumstances to include the power and authorities of a peace officer in dealing with an offender, such as giving the pilot in command arrest powers under s. 495, which are given only to peace officers.

Section 4(5) is also a definitional section, which specifies when sexual intercourse, our second “s” word, has occurred. It reads as follows:

(5) For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.

This is important for a fairly limited purpose: for a present offence in the Code and for a previous offence no longer found in the Code.

To explain this, we need some context so let’s first look at the historical context of sexual assault.

Originally, when the Criminal Code was finalized in 1892, the crime of “rape” was committed by a “male person” who had “sexual intercourse with a female, not his wife” as found in section 266 as follows:

Rape is the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent, which has been extorted by threats or fear of bodily harm, or obtained by personating the woman’s husband, or by false and fraudulent representations as to the nature and quality of the act. 

S. 266(3) of the 1892 Code defined “carnal knowledge” as “complete upon penetration to any, even the slightest degree, and even without the emission of seed,” which is pretty much the same definition we now have for sexual intercourse under s. 4(5). Just a year later in the 1893 Code, the definition of carnal knowledge was moved from s.266 and placed under s. 4, but as the Code was amended, the definition moved from s. 4 to s. 7 to s. 3(6) in the 1953 Criminal Code when “carnal knowledge” was changed to “sexual intercourse.”

The crime of rape was finally abandoned in 1982-83 amendments to be replaced by the more general offence of “sexual assault,” being an intentional application of force, of a sexual nature, without consent. Thus the concept of rape, committed by a man on a woman who is not his wife and requiring sexual intercourse, is simply one example of a sexual assault.

This historical context does not however explain why the definition of “sexual intercourse” still remains on the books. As I said the definition remains for a past and present reason. It remains for the past as past convictions for rape and other specific sexual offences requiring the commission of sexual intercourse, such as sexual intercourse with a female under 14 years of age, are “primary designated offences” and relevant in a long term or dangerous offender application under Part XXIV of the Code. The term is also used in the procedure for gathering DNA samples under 487.05 of the Code and in the procedure for gathering sex offender information under s. 490.011.

There is also a clear connection to the present as there are still offences in the Code, which require proof of sexual intercourse as part of the prohibited act or actus reus of the crime. The offences are under the procuring section of the Code and require the offender to either procure or solicit a person to have “illicit sexual intercourse” under s. 212(1)(a) or to entice a person to a bawdy house to perform “illicit sexual intercourse” under 212(1)(b) or as in s. 212(1)(i), apply and administer a “drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual intercourse with that person.”

Sections 4(6), 4(6.01), and 4(7) are all related to the third “s” word, service, and the proof of when documents have been served on an offender. Sections 4(6.1) and (7) were added to the Criminal Code in 2008. Section 4(6.1) reads as follows:

Despite subsection (6), the service of documents may be proved in accordance with the laws of a province relating to offences created by the laws of that province.

This section was added to the Code to provide criminal law consistency with s. 40 of Canada Evidence Act, which provides for a similar rule in civil cases. Section 4(7) permits the court, hearing the matter, to require the attendance of the person who served the documents for examination or cross-examination on the issue of service.

Section 4(6) is not a new section and is important for the prosecution of driving over 80 offences as section 258 permits the admission of a certificate of a qualified breathalyzer technician as proof of the blood alcohol concentration of the accused. However, the document is only admissible if, according to s. 258(7), the accused receives reasonable notice of the intention to produce the document. As the server of this document is a police officer, section 4(6) permits the proof of notice by documentary evidence, which is certified in writing by the police officer. Section 4(6) reads as follows:

For the purposes of this Act, the service of any document and the giving or sending of any notice may be proved

(a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sent it; or

(b) in the case of a peace officer, by a statement in writing certifying that the document was served or the notice was given or sent by the peace officer, and such a statement is deemed to be a statement made under oath.

This section, which essentially relieves the Crown from calling the officer who served the documents, has not gone without some controversy in case law. Some cases suggest the written statement as contemplated by s. 4(6)(b) is not enough to show proof of service of the notice of intention to produce a breathalyzer certificate, particularly where the serving officer is called to testify and he has no independent recollection of serving the notice. For further reading on this issue read R v Graham.

That is the end of my discussion of section 4 of the Criminal Code found under Part I, the General Part. In the next podcast, I will onto section 5 where we will consider military matters.

 

 

Ideablawg Podcast Episode 7 on sections 4(4) to (7) on The Three "S" Words

Section 4(3) Possession – An Example of Judge-Made Law: Episode Six of the Ideablawg Podcasts on the Criminal Code of Canada

I ended last episode with a bit of a teaser: I said in this episode we would explore the old adage: possession is nine-tenths of the law. Well, sorry to say, this is not the law, particularly in the criminal law meaning of “possession.” What we will explore in this podcast is what section 4(3) tells us about the meaning of “possession” and what it does not.

Once again, we will encounter the difficulty of using the Criminal Code as an inclusive repository of criminal offences. According to section 9 of the Code, which we will be discussing on these podcasts very soon, all crimes in Canada are in the Code, except for the common law crime of contempt of court. However, although all crimes are found under a particular section of the Code, on the plain reading of a particular section one cannot be certain of the requisite elements. Sometimes, we need to look elsewhere in the Code for further illumination, such as s. 2 definitions or the definitions found under the relevant Part.

More often, we need to look at case law for the answer. This reality suggests the concept in s.19 of the Code, that ignorance of the law is no excuse, is a bit of a joke, as certainly the average reasonable person, who has no legal training, could not access with certainty the requirements for each crime. This is even more evident when case law does not just define certain words used in a section but actually reads into the section additional words.

This is the case with the s.4 (3) meaning of “possession.” This section is a perfect example of how the Courts have restricted or narrowed the prohibited act of a crime, as originally conceived by Parliament, through legal interpretation. Of course the courts do not do this whimsically. There is a method to their madness and the modifications ensure the integrity of the criminal law as a whole. In the case of possession the added requirements ensure the law is not overly broad and does not capture those whom we would consider legally and perhaps, although not necessarily, even morally innocent. The big puzzle is why Parliament doesn’t take the hint and, in the next round of omnibus Criminal Code changes, amend the section accordingly. To not do this smacks of “ostrich-in-the-sand” kind of mentality. Or better yet, is to liken the attitude to the Ravenous Bugblatter Beast of Traal from the Hitchhiker’s Guide To The Galaxy– what you can’t see isn’t there.

In any event, with this lengthy introductory rant, let’s look at section 4 (3), which reads as follows:

For the purposes of this Act,(a) a person has anything in possession when he has it in his personal possession or knowingly(i) has it in the actual possession or custody of another person, or(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

What we really want to focus on is the concept of joint or constructive possession under s. 4 (3)(b), which requires “knowledge and consent.” The difficulty with this definition started with the Alberta case, from the sixties, Marshall.  The teenager, Daniel Marshall hitched a ride with some friends from B.C. intending to make his way home to Alberta. During the ride, the other teens smoked a hookah pipe filled with marijuana, which Marshall passed along but did not partake. When the Alberta police stopped the car for a broken headlamp, billows of marijuana smoke drifted out of the open windows. Everyone was charged with joint possession of marijuana on the basis of s. 4(3). Marshall was convicted at trial on the basis there was knowledge and consent per the wording of the section. The Alberta Supreme Court, Appellate Division, as it then was, disagreed, finding that consent required more than the mere presence of Marshall in the car and that although he consented to be in the car, that did not mean he consented to the presence of the drugs. Furthermore, the court, in discussing whether or not Marshall was a party to the possession, noted that Marshall had no power to control the people with the drugs nor was he the driver of the car.

This control aspect was applied directly to the meaning of possession in the 1983 Supreme Court of Canada Terrence case. In this case, the issue was possession of a stolen vehicle and Terrence’s presence in the vehicle as a mere passenger. In referring to and approving of the lower Court of Appeal for Ontario decision in the case, the SCC agreed that an element of control was required for proof of possession. In their view, if control was required for proof of being a party to an offence, then, similarly, control was required for joint possession, which was also a mechanism for deeming multiple parties legally responsible for a crime.

This case law restricting the meaning of joint or constructive possession under s. 4(3) does make sense and does ensure that responsibility is properly meted out. However, the concept can be a bit of a stretch. Take for example the 2001 Mraz case from the Saskatchewan Provincial Court wherein the accused was acquitted of possession of marijuana. There the judge found there was no control, even though the accused shared a “joint,” one of the many euphemisms for a rolled marijuana cigarette and apropos here as we are talking about joint possession, with his co-accused. There was no control because the co-accused had full control of the bagful of marijuana from which the previously smoked “joint” came. There was some dispute as to where the bag was found, as the accused believed his co-accused kept it on his person, while the bag was actually found in the car under the seat.

As a quick aside, this leads me to consider the origin of the slang “joint” used to describe a rolled marijuana cigarette. Although I am loath to use Wikipedia, the webpage on the etymology of the slang “joint” seems credible. “Joint,” which is derived from the French word “joined” was used in the 1800s to refer to an annex to a main room. The term picked up an unsavoury flavour when in the late 1800s it was then used in reference to a run-down bar or even an opium den. In the thirties the slang was used in reference to a heroin hypodermic needle because the needle was often shared. The same reasoning is applied to the use of the word “joint” for a marijuana cigarette, as it too, as seen in the cases of Marshall and Mraz, is usually shared.

Thank you for joining me. In the next podcast we will complete our discussion of section 4 when we look at the three “esses;” subjects, sexual intercourse, and service.

Episode Six Ideablawg Podcasts on the Criminal Code of Canada Section 4(3) Possession as an Example of Judge-Made Law

Section 4 Of Cabbages and Kings and Stamps!: Episode Five of the Ideablawg Podcast on the Criminal Code of Canada

The following is the text of episode 5 of the Ideablawg Podcasts on the Criminal Code  of Canada. The podcast is found at the end of the text. Enjoy!

"The time has come," the Walrus said,
 "To talk of many things:
 Of shoes--and ships--and sealing-wax--
Of cabbages--and kings--
And why the sea is boiling hot--
And whether pigs have wings."

- Lewis Carroll from The Walrus and The Carpenter

Welcome to Episode Five of the Ideablawg Podcasts on the Criminal Code of Canada. Today’s episode is a kickoff as we begin to tackle the potpourri we call section 4 – a housekeeping section, which tidies up the various loose ends of criminal law. It brings to mind Lewis Carroll’s poem The Walrus and the Carpenter and particularly the excerpt I quoted at the start of the podcast. But instead of cabbages and kings, we will chat about postcards, stamps, valuable securities, chattels, possession and joint possession, expressions, sexual intercourse, service and notification, and attendance.

But no oysters – theft of oyster beds will come much later down the road – probably next year - when we discuss section 323.

The task today will involve a discussion of section 4 in subsection (1) and (2), and remember we are in Part I of the Code called the General Part. These subsections, as I said, tidy up some of the definitions we encountered in s. 2. Section 4 (1) reads as follows:

For the purposes of this Act, a postal card or stamp referred to in paragraph (c) of the definition “property” in section 2 shall be deemed to be a chattel and to be equal in value to the amount of the postage, rate or duty expressed on its face.

We see a few words in this paragraph that call out for definition. We are told the section is referring to the definition of “property” under that section 2 definition, but the paragraph really begs the question because now of course we also want to know the definition of “postal card” and “stamp” and “chattel.”

First let’s take a look at s. 2(c) “property.” It says:

any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person;

That is of course important to know because the term “property” is used throughout the Code. Indeed a simple word search reveals that the word “property” appears in 161 sections of the Code. Take note that the word “property” is not found under s.322, which is the offence of theft, as the crime involves the taking of “anything, whether animate or inanimate.” Property, as defined under s. 2 is much more restrictive, as the definition in (a) and (b) actually refers to itself - “property.” It is only (c) which gives a concrete example of what property may be – postal cards, postage stamp or other stamp issued by the federal or provincial governments.

However, a word of caution: case law has considered the seemingly broad actus reus or prohibited act in the theft section and has overlaid a concept of property. Thus, in the 1988 Supreme Court of Canada Stewart case, confidential information was not considered “anything” in accordance with the theft section. Even so, as explained in the SCC 1992 Milne case, the criminal law concept of property does differ from the civil law, just as the purpose of criminal law differs from the purpose of civil law. More on this when we get to that section.

So s. 4(1) is adding onto that (c) definition – clarifying it for us – by advising us that “postal cards, postage stamp or other stamp” is a chattel with a value equal to the amount expressed on its face. So if you have a stamp for 5 cents its value is 5 cents. Now, that may be a problem as I now purchase stamps with no number value but with a “p” embossed on a nice red maple leaf placed in the stamp’s corner, which, so the post office assures me, means the stamp is “permanent” and can be used anytime as it is worth the going rate no matter when it is used or when it was bought. The other problem is that a 5 cent stamp may actually be a rare stamp and worth much more than the face value. The offender may be charged with theft but which punishment section applies under s. 334? Is it theft of property valued over $5000, which is an indictable offence and punishable by a maximum of ten years? Or is the stamp valued under $5000, which is a summary conviction offence with a maximum of eighteen months imprisonment?

To answer that question, we need to look at the definition of “stamp.” “Stamp” is only defined under the counterfeit stamp section 376 as “an impressed or adhesive stamp used for the purpose of revenue by the government of Canada or a province or by the government of a state other than Canada.” Not a very helpful definition for the police who want to charge the thief with the theft of the priceless 5 cent stamp, which is worth over $5000 dollars.

The next question is: what is a chattel and why does this section 4(1) insist on deeming the post card and/or stamp as one?  A chattel is an item of personal property, either animate or inanimate, which is moveable as opposed to real property, which includes land and improvements, which is not moveable. For example, when you purchase a house, which is real property, the items inside the house tend to be chattels, like the furniture, unless it is affixed to the house like the glass fireplace doors. Those items affixed to the real property stay and those, which are moveable, the chattels, usually go with the seller unless the item is specifically referred to in the purchase agreement. What does this mean for our postal card and stamp? It means these items are personal property even though they are government issued. Also they are moveable and thus chattels.

Onto s. 4(2) for which the marginal note explains is on “value of valuable security.” This subsection helps us determine the value of a valuable security, where value is material, in the context of the Criminal Code by expanding on the definition as found under section 2. So the purpose of this subsection is similar to subsection (1). Before I read this subsection, let’s go to the section 2 definition that reads as follows:

“valuable security” includes

            (a) an order, exchequer acquittance or other security that entitles or evidences the title of any perso

(i) to a share or interest in a public stock or fund or in any fund of a body corporate, company or society, or

(ii) to a deposit in a financial institution,

(b) any debenture, deed, bond, bill, note, warrant, order or other security for money or for payment of money,

(c) a document of title to lands or goods wherever situated,

(d) a stamp or writing that secures or evidences title to or an interest in a chattel personal, or that evidences delivery of a chattel personal, and

(e) a release, receipt, discharge or other instrument evidencing payment of money;

 Section 4 (2) further defines “valuable security” as:

  (a) where the valuable security is one mentioned in paragraph (a) or (b) of the definition “valuable security” in section 2, the value is the value of the share, interest, deposit or unpaid money, as the case may be, that is secured by the valuable security; 

(b) where the valuable security is one mentioned in paragraph (c) or (d) of the definition “valuable security” in section 2, the value is the value of the lands, goods, chattel personal or interest in the chattel personal, as the case may be; and 

(c) where the valuable security is one mentioned in paragraph (e) of the definition “valuable security” in section 2, the value is the amount of money that has been paid.

How ironic that the purpose of this subsection is to clarify the intrinsic value of the security as opposed to subsection 1, which speaks only of face value. Of course this kind of clarity is required as the valuable security may be a deed to property, which is a document showing land ownership, and is therefore merely a representation of the actual property. Thus, the deed itself is a piece of paper with very little value but it represents much greater value in accordance with the value of the actual land.

For those of you wondering what “exchequer acquittance” means, the term comes to us from English law, in fact I found a similar definition of “valuable security” in the Irish Larceny Act 1861. The “Exchequer” is the Royal Treasury. Originally, the Exchequer was also a Court of Law concerned with revenue, like our Tax Court, but later merged with the then King’s Bench. As a government department, the Exchequer was in charge of the national revenue of the United Kingdom. An “acquittance” is a document, which acquits or discharges an obligation and acts as a “receipt in full.” So an “exchequer acquittance” is a receipt for payment of revenue to the government. Clearly, the relevancy of this term today is questionable. Just another example of how our Criminal Code needs to be streamlined and updated.

On that note, I will end this podcast with Shakespeare’s Henry the IV, Part I Act 3 Scene 3 and an exchange between Sir John Falstaff and the future Henry V or as he was known then, Prince Hal, wherein they discuss Falstaff’s bumbled robbery and the positive resolution of it at court. By the way, as an aside, that is a Shakespeare aside, the PBS Hollow Crown series presenting the history plays of Richard II, Henry IV Part 1 and Part 2, and Henry V is outstanding and very worthwhile to watch. In any event, Hal then boasts “I am good friends with my father and may do any thing.” Without skipping a beat, Falstaff urges the Prince to “Rob me the exchequer the first thing thou doest, and do it with unwashed hands too.”

Thank you and come back next time when we continue our discussion of section 4 of the Criminal Code and whether or not possession is really nine-tenths of the law.

 

 

 

 

 

Episode 5 Section 4 Of cabbages and Kings and Stamps!

Section 3.1 and the Effect of Judicial Acts: Episode Four Ideablawg Podcast on the Criminal Code of Canada

The following is the text version of Episode Four of the Ideablawg Podcasts on the Criminal Code of Canada. At the bottom of the text is the actual podcast. However, I do encourage you to read the text as well and follow the hyperlinks to the cases and other websites to which I refer. Enjoy!

Welcome to Episode Four of the Ideablawg Podcasts on the Criminal Code of Canada. My name is Lisa Silver and today we are discussing section 3.1 of the Code, which is entitled “Effect of Judicial Acts.” When I started researching this seemingly innocuous procedure section I uncovered some extremely interesting connections that I am really excited to share with you. So let’s dig deep into section 3.1!

First, I want to set the stage, so to speak, on this section and there are many ways to do this. As I already said, this section is a procedure section. What does that mean? A procedure section involves the process in criminal law as opposed to a substantive law section, which sets out the essential elements of criminal offences or the substance of criminal law.  Criminal procedure is just a set of rules on how that substantive law is enforced and implemented through the criminal justice system. I will reserve a fuller explanation for my blog “basics of Canadian criminal law” series – coming soon.  So, section 3.1 involves the rules of criminal process.

The placement of s. 3.1 is also of importance. Last podcast, when I introduced s. 3.1 as my next podcast, I did so by identifying the section with its place in the Code. I said that s. 3.1 was the first section to come under Part I of the Code, known as the “General” Part. Oddly enough, when I looked at my annotated Criminal Code, being Martin’s Annual Criminal Code, section 3.1 is not placed under Part 1 General Part but is found under the previous interpretation segment discussed in the last three previous podcasts! To make sure I was not mistaken in my podcast placement, I checked the actual statute as found on both the Department of Justice website and canlii (Canadian Legal Information Institute) website and found that s. 3.1 is found under the General Part as I indicated.

So is s. 3.1 an interpretation section or is it a General Part section? With all due respect to my favourite annotated Code, I submit section 3.1 properly comes under the General Part as a matter of process as opposed to a matter of interpretation. Also, Martin’s rival, Tremeer’s Criminal Code, which my husband favours, places section 3.1 as the statute does, under the General Part I. Now that would make a good future blog discussion on the various Criminal Codes, both annotated and not, and their history. Now back to this podcast.

You may wonder how there can be such a discrepancy. I can only speculate but as this section is a fairly recent amendment to the Code, from 2002, the publishers of Martin’s, Canada Law Book, simply placed it after section 3 as opposed to separating the two sections by placing them under different segments. Logically s. 3.1 should come after section 3 but really when the government amends the Code there is often no rhyme or reason to the numbering, as we will see. I mean, where else could they have put this section? I’ll have to think about that.

So we have physically placed the section and now I will read it to you:

Unless otherwise provided or ordered, anything done by a court, justice or judge is effective from the moment it is done, whether or not it is reduced to writing.

What exactly is this section doing? It is in essence creating a presumption. A presumption, which I will later argue is contrary to the common law. This section is telling us that when a court or a specific judicial officer does something – any action such as an order – that act is effective immediately, no matter how it is communicated. So, the presumption is for immediacy. The presumption is however rebuttable, meaning that the court or judge when he does the act can say the act does not take effect immediately. However, if the court or judge says nothing about the time of effectiveness, the presumption is for immediacy.

Okay. That makes sense. When someone does something they mean it to be done asap unless they indicate otherwise – brings to mind Yul Brynner as Ramses II in the Ten Commandments when he says “so let it be written, so let it be done.” Of course, this is as opposed to Yul as the King of Siam in the King and I where he adds onto all of his orders “etc., etc., etc.”

It makes sense to be sure but why did the government add this and why did they only add this in 2002?  In order to find out why they added this section, we turn to the Parliamentary records. This section was part of an omnibus Bill C-15 also known as the Criminal Law Amendment Act of 2001, brought in by the then Liberal Government and sponsored by the then Minister of Justice and Attorney-General, the Honourable Anne McLellan. It is amusing and ironic to read the debate on this bill as the opposition, namely the then Canadian Alliance through Vic Toews as the Justice critic, bash the bill because of its omnibus nature. Agreed the bill is an odd mix of Criminal Code amendments, everything from procedural changes such as 3.1 to “animal cruelty, child pornography, and firearms,” but this practice of kitchen-sink amending appears to be pro forma today.

In McLellan’s speech to kick-start the debate on the second reading of the Bill, she stated:

Let me turn briefly to the area of criminal procedure reform. The Department of Justice has been working closely with the provinces and territories on criminal procedure reform for some years. This work is now in its third phase. The objectives of phase three are to simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system. As I said at the outset, the provinces and territories support these reforms. As they are responsible for the administration of justice, I believe that we should do our best to give them the tools they need to ensure the efficient and effective operation of the criminal justice system.

It appears then the amendment was for efficiency and modernization, particularly as a result of the increased use of technology. This is consistent with the legislative history of the amendments, which gives the “key thrust” of the bill is to provide for the use of electronic documents. In terms of section 3.1, the document states:

As a general matter, clause 2 of the bill ensures the legality and immediate effectiveness of judicial acts from the moment they are done, whether or not they are reduced to writing.  This provision ensures the validity of judicial acts made in a number of circumstances where hard-copy documentary proof of the act is not immediately generated.   Such situations could include judicial decisions in the form of orders or warrants which may be issued electronically or orally by telephone or some other form of audio or audio-visual communications link.

There may be another reason for this change as well. Such a rule, albeit worded differently, is found in some provincial rules of court. Each court level has rules to assist them in the nuts and bolts of the organization and maintenance of the courts as well as procedure. Criminal procedure, as a result of s. 91(27) the Constitution Act, 1867, is within the power of Parliament, while s. 92(14) gives the provinces the power to administer justice in the province through rules on civil procedure and the “constitution, maintenance, and organization” of the civil and criminal courts. In terms of civil procedure each provinces rules of court apply. There are also criminal rules, which tend to the organizational side, leaving the procedure, as required by the Constitution Act, with the feds.

Just looking at the Alberta Rules of Court, which were completely overhauled in 2010, rule 9.6 states that the effective date of “every judgment and every order” is on the “date of pronouncement” unless the court orders otherwise. It is similar to section 3.1 yet different. The civil rule is restricted to judgments and orders and to “pronouncements.” According to various dictionaries, “pronouncement” means a formal declaration, usually a judgment. Of course, the Criminal Code section applies to any act of the court and is therefore much broader.

Now we understand why the government decided to put this section into the Code but what is the effect of this effect of judicial acts? For that we are going to look at some case law and the concept of functus. The word functus is from the Latin word fungor, which means to execute or administer or to discharge. When used in its legal sense, it refers to the phrase functus officio, when a judge has exhausted his or her authority over the matter and can no longer alter his or her decision. It typically applies to final decisions of the court. A judge would be functus officio when he or she acquits an accused of a criminal offence. That finding is final, in the sense, that judge no longer has any power over the accused and the case. In other words, the judge cannot re-open the case or amend a final decision unless there has been an administrative “slip” in the decision or “error in expressing the manifest intention of the court.” Instead, there are appellate remedies but the trial judge is now functus and out of the game.

The concept or doctrine of functus officio originally comes from English common law on the premise that we need some finality in court in order for parties to an action to have finality as well. However, this common law rule applied to the final formal judgment and did not apply to any and all acts done by the judge. In fact the common law rule made allowances for informal reasons that may be changed. That is still the law in England, where there is “within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected.” Section 3.1 has now changed the common law. This was recognized in 2004 in the Alberta Queen’s Bench decision in R. v. Harris.

Next podcast, we will be dealing with section 4, which can be viewed as an omnibus section of unrelated statements regarding interpretation of the application of criminal law. It does sound as if this section should be in that interpretation segment but we will see that this section goes further than interpretation to position all users of the Criminal Code on common ground. In this way, this section truly deals with generalities and thus properly in the General Part of the Code.

 

Episode Four Ideablawg Podcast on Section 3.1 and the effect of Judicial Acts

Part One of the Supreme Court of Canada’s Decisions In The Sniffer Dog Cases: Don’t Throw Out The Principle With The Bath Water!

Question: When is a legal principle clarified by unanimous court but when the principle must subsequently be applied, unanimity goes out the window? Answer: When the Supreme Court of Canada delivers a much anticipated and needed decision on an issue, which, depending on the outcome, may change the face of police investigatory practice. That is the case, of course, in the two sniffer dog decisions in Chehil and MacKenzie, which were supposed to clarify the standard of “reasonable suspicion.” However, instead of the much-needed direction from the Court, the Supreme Court of Canada leaves us with a ruling that fails to clarify. As we all know, legal principles do not live in a vacuum and if they cannot be applied consistently and with some prediction, then the principle becomes a tool of the law and not the rule of law.

Still, the cases do tell us something, about which I have consistently written: that a seemingly objective standard is a fallacy as it is applied through the subjective sensibilities of the assessor, the judge, and in the context of facts, which themselves are founded on a subjective view of the receiver. Chehil and MacKenzie are cases in point: Chehil sets out the principle, to which everyone on the Court agrees, while MacKenzie applies it through the judicial lens. Unfortunately, the judicial lens is of varying strengths and degrees: not everyone on the Court sees matters the same way. The decision is therefore a fractious one. If our Supreme Court of Canada cannot agree then how can the majority, written by Justice Moldaver as I predicted, find the trial judge, who heard the evidence, is wrong. Can one even be wrong when applying an objective reasonable person standard? Are there two reasonable people? Do we even know how a reasonable person thinks? Ah, there’s the rub and there is the tautology: objective standards are only as good as the facts behind them.

If the above seems like a rant, well I suppose it is: the decisions, when read together are puzzling. Moldaver’s MacKenzie decision is even more so when read against the trial judge’s reasons. Unfortunately, one cannot get beyond the admonition of the trial judge when he found it possible “that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.” This kind of after the fact decision-making seems to permeate the SCC decision too but understandably so as in fact there were drugs found and the accused was a drug courier. But what we must all keep in mind is the purpose of the Charter is not to exonerate criminals but to provide oversight when the awesome powers of the state are used,  in whatever circumstances. Just as innocent people may come under scrutiny in a criminal investigation, as pointed out by Madame Justice Karakatsanis in Chehil, so too seemingly guilty people will benefit from inappropriate state intrusion. This is what safeguards our fundamental principles in a free and democratic society.

It is in this context that we must review and analyze these cases. In part two of my case comment, I will do just that.

 

 

Let’s Talk About the Canadian Criminal Code: Episode Two Section 2 (and s. 2.1) - Definitions

Welcome to episode two of the Ideablawg Podcast entitled: Let’s Talk About the Canadian Criminal Code.

Last week we discussed the short but complete section 1 “naming section.” This week we will talk about its polar opposite: the hefty yet incomplete section 2.

As discussed in the last podcast, there is a method to the madness of writing legislation. Indeed the framework or structure of a statute is not whimsical but follows certain prescribed formats. These formats may differ slightly from statute to statute and from levels of government as we learned when we talked about preambles to an act as opposed to a purpose section found within a statute. But in essentials, statutes tend to look very similar.

One of these similarities is found in section 2 of the Criminal Code – found under the interpretation segment of the Code, entitled “definitions.” These words and phrases are definitions of key terms used within the Criminal Code.

Now I called this section hefty yet incomplete. Hefty, because this section 2, which is not broken down into subsections as other sections of the Code are, provides us with a long alphabetical list of words in which some terms are defined quite lengthily. In fact, there are 73 words listed under section 2 from “Act” to “Writing.” Of the 73, 2 are repealed: the term “feeble-minded person” was repealed in 1991 and “magistrate” in 1985 as these terms are no longer used in the Criminal Code. Of course, Canada no longer has any “magistrates” as they are now known as “provincial court judges.”

The term “feeble-minded person,” however, comes from the old rape provisions in the Criminal Code, namely s.148, and came into force through the 1922 Code amendments.   It is difficult to read this old section without cringing:

s. 148. Every male person who, under circumstances that do not amount to rape, has sexual intercourse with a female person

(a) who is not his wife, and

(b) who is and who he knows or has good reason to believe is feeble-minded, insane, or is an idiot or imbecile,

is guilty of an indictable offence and is liable to imprisonment for five years.

The term also applied when considering the old insanity defence under the now amended (as of 1991 there is no insanity defence but an offender may be found NCR or “not criminally responsible” as a result of a mental disorder) s.16 of the Criminal Code. Unlike the rape provisions, this term when used in the context of insanity, applied equally to men and women. Interestingly, in the 1984 Supreme Court of Canada decision, rendered a year before the term was repealed, Justice Dickson, as he then was, in the Ogg-Moss case, agreed that the term was “somewhat disturbing to modern sensibilities” but was really equivalent to saying “mentally retarded” or “developmentally handicapped.” Of course, both of those terms today are deemed completely inappropriate as well. The term “mental disability” is now the preferred adjective. There is still a sexual offence related to this: sexual exploitation of person with mental or physical disability under s.153.1 and it applies to both men and women, married or not.

Amazing that the term, “feeble-minded person,” was only repealed in 1985.

I also call out this so-called definition section as being incomplete. Incomplete, because not all words used in the Code are defined. This has a twofold significance: as not every word which we would like to be defined is defined and not every word which is defined is found under this section.

Let's tackle the first thought: not every word we would like to be defined is defined in the Criminal Code. As we ramble through the Code, we will be faced with some crimes for which some essential elements of the prohibited act are not defined for us. At this point our only recourse is to go to the case law. Case law produced, by judges, interpret statutes together with principles found in the common law and come up with legal interpretations or definitions of the words used.   If there is no case law on the word or phrase then a lawyer is forced to be creative and come up with a definition, which they hope the trial judge will accept. To be frank, the best starting point to do this is the dictionary. How is this word defined in Webster or Oxford? Then, how is it defined in case law? In other jurisdictions? And so on. To me this is the fun part of being a lawyer – when you can be part of the creation of the law.

An example would be the phrase “planned and deliberate” under s.231(2) of the Code, which is the section outlining when murder is deemed first-degree. The term is only important for sentencing classification and comes into play only after the Crown has proved beyond a reasonable doubt the intention required for murder as found under s.229. This phrase is not defined in the Code but is neatly defined in case law to mean the follows: planned - a scheme or design previously formed, and deliberate - considered and not impulsive.

Now the second thought: not every defined word is found under this section, tells us that there are other places in the Code where words are defined. For instance, there are definitions, as referred earlier, at the beginning of some Parts of the Code such as Part VI Invasion of Privacy.

There are also definitions found within sections of the Code such as the term “crime comic” under s.163(7).

Then there are the hidden gems such as the term “negligence,” an extremely important term as it signifies the level of intention required to commit an offence and is used for one of the most serious offences in the Code s.222(5)(b) manslaughter. Yet, “negligence” is defined only by reference to a title of a section. In section 436, entitled Arson By Negligence, a fairly recent offence in the Code from 1990, the actual section setting out the crime does not use the word “negligence” but instead defines it as follows:

“Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.”

“As a result of a marked departure from the standard of care that a reasonably prudent person would use” is the definition, found in case law, of criminal negligence. I leave it to you to decide if this is indeed a “hidden gem” or merely another example of the complexities of our Criminal Code.

So, in the end, section 2 is not only a list of some definitions but is also a list of what is not defined in the Criminal Code.

 But of course it is not that simple.

For example, let’s look at a recent definition added to section 2 – “justice system participant.” The definition is a list of very specific categories of people who come under this term, such as under

(a) “a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council.”

Caution is required, however, as the definition is also very broad: under (b) it is also

“a person who plays a role in the administration of criminal justice.”

The definition does go on to list examples, but clearly this definition is not exhaustive. Imagine if we went to the dictionary for a definition of a word and it said etc, etc, etc.. Not overly helpful is it – so again we are down to case law and a possible argument in court in order to define the definitions and give them boundaries.

Before I close, I would like to discuss s. 2.1, which is a new section added in 2009. This section also provides us with definitions; in fact it is entitled “further definitions – firearms.” Okay, so instead of amending section 2, the government simply added a section 2.1 with firearm specific definitions.

Well, no not really.

Section 2.1 merely points us to the place where the listed terms are actually defined. The section lists words such as “ammunition” and “replica firearm” and tells us that those listed words have the same meaning as in s. 84(1). If we go to s. 84(1), we see a section defining a number of terms, including the ones listed under s. 2.1. This s. 84(1) is in fact the definition section for Part III of the Code on Firearms and Other Weapons. As mentioned earlier a Part may start with definitions of words found within the particular Part. Certainly, there are no definitions in the Code, which contradict, meaning there are no definitions of a term for one Part of the Code and then a different definition for the exact same term in another Part. So why did the government add this s. 2.1? For clarification? For extra emphasis? Why?

Well, in my view, Section 2.1 instead of clarifying actually does the reverse as it leaves the impression that if the word is only defined under a particular Part, that does not necessarily mean that word, if found elsewhere, has the same meaning.

And to make us even more confused, there is a federal statute with definitions, which apply to all federal legislation, as long as it is consistent with that legislation, called the Interpretation Act.

Now that’s confusion for you, that’s the Criminal Code for you, and that is the podcast for this week.

Next week we will discuss this Interpretation Act a bit more when we look at the last of the interpretation sections in the Code: section 3

Please note: This is the text of the Episode Two of my podcast. I do not have the audio file attached but will be sending out the actual podcast in a separate file.

Let’s Talk About The Canadian Criminal Code PodCast: Episode One, Section One

 

The following is the text of my first podcast including the actual downloadable podcast found at the end of the text. I am working on adding the podcast to iTunes and will announce this next step when it is completed!

Welcome to the “Let’s Talk About The Canadian Criminal Code” podcast. This podcast is a companion to my blog found at www.ideablawg.ca where ideas and law connect. In this podcast I hope to go through the Criminal Code section by section and discuss some interesting issues arising from each one. Be warned, although the Code ends at s.849, there are so many sections between sections that this podcast will continue for quite some time. Indeed the length of the Code will form part of one of my podcasts. After a few sections, I will do a “brain break” podcast where we will discuss a fact or issue related to the Criminal Code or criminal law in general but not arising directly out of a particular section.

Today we are going to do the obvious and start at the beginning – section 1. On the face of it, Section 1, as with many statutes does not seem to be very important or overly interesting. Typically, the first section of a Federal statute is called the “short title.” The “short title” names the statute in a user-friendly manner. Often when the government brings forward a statute as a Bill, the working title is lengthy and cumbersome. Thus, the short title is a welcome first section.

Note, however, I said this is typical of the first section of a Federal statute. Provinces, who also produce legislation, do not have the same typical format for their legislation. For example, in Alberta many statutes start with a “preamble.”  This preamble sets out the government’s purpose for enacting the legislation as a kind of mission statement indicating why the government desires this legislation and what the legislation aims to do. It also acts as a “forshpeis” or “bouche teaser” and gives us, the reader, a taste of what’s to come in the Act. It fills in the statute with emotive content as it speaks to the societal values ultimately expressed by the legislation. Some cynics might say the preamble is the political posturing or propaganda piece of the law. A good example is the preamble to the Alberta Human Rights Act, which reads as follows:

Preamble

WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice and peace in the world;

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation;

WHEREAS multiculturalism describes the diverse racial and cultural composition of Alberta society and its importance is recognized in Alberta as a fundamental principle and a matter of public policy;

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all Albertans should share in an awareness and appreciation of the diverse racial and cultural composition of society and that the richness of life in Alberta is enhanced by sharing that diversity; and

WHEREAS it is fitting that these principles be affirmed by the Legislature of Alberta in an enactment whereby those equality rights and that diversity may be protected:

 

You get the idea.

 

So the question is: why doesn’t the federal government do this? First, the federal government through Parliament does present their reasons for bringing forward legislation. They write background papers and other such reports posted to their website to bring home to the nation why they consider their laws to be important and essential for living the “good life” in Canada. So they don’t usually need to express it in a preamble. What they will do is have a section in the Act, often near the beginning, where they state the purpose of the legislation such as in The Competition Act and The Contraventions Act. Usually this kind of statement is terser than the preamble I just read to you and form part of the actual legislation. Of course, there is an important

exception: the Constitution Act, 1867 founding our Dominion of Canada comes with a preamble and so does Part 1 of that Act being the Canadian Charter of Rights and Freedoms. The Charter’s “preamble” is short and to the point and reads: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:” I will pause here as I am sure many of you are a little surprised to hear that God has been invoked as a preamble to our Charter. Hmm. I wonder if the Charter breaches s.2(a) of the Charter – the fundamental freedom conscience and religion – in which we protect a person’s right to not believe in a supreme being.

Well, on that note, I leave you to consider the short title section of the Criminal Code. Next week we will consider section 2 – the unwieldy interpretation section.

Thank you for listening to the Ideablawg Podcast – where ideas and law connect!

 

EpisodeOneLetsTalkAboutSectionOneoftheCriminalCode

A Balancing Act: The Supreme Court of Canada and Testifying Behind The Veil

In two concurring reasons and one dissenting reason, the Supreme Court of Canada, in the N.S. decision, has continued the Charter discourse surrounding conflicting rights. Unsurprisingly, the majority message, written by Chief Justice McLachlin, is one of balance and accommodation on a case-by-case determination. The Trial judge must weigh the conflicting rights in the context of the case with due deference to Charter values. The values, however, are flexible, adaptable, and tolerant of each other. In the Charter arena, there is no room for immoveable values, which are fixed and unbending.

This approach does, on the face, appear to be consistent with the Charter itself, which guarantees rights and freedoms but not absolutely: they are subject to the reasonable limits of a free and democratic society. This, however, is a liberal concept, a concept born in the revolutionary times of the 18th century when religion was given a tempered view in favour of scientific and provable reasoning. As a result, the question remains whether the balancing act proposed by the SCC will provide enough protection to freedom of religion/belief in an age where having a belief system is not required in a free and democratic society.

On the other hand, the traditional concept of criminal law based on the presumption of innocence and fair trial, as values to be balanced, may very well be eroded by this balancing act as well. Critics of the SCC approach might properly ask: how can the very essential core concepts of criminal law ever be subject to accommodation? Some values, those critics would argue, should never give way or they will fail to stand on their own. Interestingly, these concerns form the basis of the concurring judgment of Justices Lebel and Rothstein.

Justice Abella’s dissent is not based on religious rights as a concept to be jealously guarded, but is based on Charter values flowing from earlier Charter cases on protecting the vulnerable members of our society such as children and women. Her dissent focuses on the very real issues of access to justice and the marginalization of those less powerful sectors of our society. This viewpoint becomes even more important in light of the recent release of Wally Oppal’s Report on missing women and the trend toward dismissing the rights, or even the existence of, prostitutes, the homeless, and Aboriginal women.

In the N.S. decision, we see a microcosm of Canadian society: differing viewpoints arising out of the same context, which reflect strongly held values, but which also reflect the true legacy of the Charter as a document that encompasses, and tolerates, all. 

In Remembrance: The Legacy of Mr. Justice Henry Nolan

Today, we remember the wars fought, the men and women lost, and the personal sacrifices, which formed Canada. Today we send our appreciation to those presently in service for our country and we are thankful to live in a country that values democracy and liberty. Last Remembrance Day, my posting was entitled “Lest We Forget,” which offered some profound words from poet/soldiers of WWI and WWII, including a moving passage from F.R. Scott, a Canadian lawyer who was an important civil liberties advocate and past Dean of McGill Law School.

This Remembrance Day, I recall Justice Henry Grattan Nolan, a Justice of the Supreme Court of Canada from March 1956 to July 1957, was born in Calgary, Alberta in 1895. His father, Patrick or Paddy Nolan, was one of the greatest criminal trial lawyers of his time. Paddy Nolan was a flamboyant character. A man of the new west, he was involved in all aspects of Calgary society, even appearing in the Gilbert and Sullivan comic opera “Trial By Jury.”

His son, Henry Nolan, was more serious by nature. A Rhodes Scholar, Henry served in the 49th Canadian Battalion (from Edmonton, Alberta) in France. There he was wounded fighting in the Battle of Cambrai in November 1917. He received the Military Cross in 1918. After completing his studies at Oxford, England, Henry joined R.B. Bennett’s law firm. Bennett had often been opposing counsel to his father, Paddy. It has been said when Bennett was opposing Nolan in the Supreme Court of Canada in 1908, Bennett entered into the courtroom with his junior, issuing orders: “Boy, give me Phipson on Evidence,” “Boy, give me Kenny on Crimes.” To this, Paddy replied “Boy, get me Bennett on Bologney.”  

Henry Nolan re-enlisted at the outbreak of World War II and served with the Canadian Army. Rising through the ranks, Nolan became a Brigadier as the Vice-Judge Advocate General. From the end of the war to 1948, Nolan served in Tokyo as a Prosecutor for Canada before the International Military Tribunal for the Far East (IMTFE). Since then, Canada has taken a strong role in the prosecution of war criminals, most notably with Louise Arbour, who acted as Chief Prosecutor before the Rwanda and Yugoslavia War Crime Tribunals.

Although, Justice Nolan died prematurely, at the age of 64 and only spent one year on the Supreme Court of Canada, he authored a number of the cases. Most notably however was his commitment to his country as a soldier in World War I and II and as a protector of civil liberties and human rights as a military lawyer and war crimes prosecutor. We remember Justice Nolan as we remember all who contributed to our country in this way.

 

“Reid” This: Is It Time To Change Police Interrogation Techniques?

Recently, a news story made its way across the Calgary news landscape: Alberta Provincial Court Judge Dinkel ruled an inclupatory statement made by the accused, Christa Lynn Chapple, inadmissible as evidence at the trial. The ruling found the statement was not given freely and voluntary as a result of the police interrogation. The actual ruling was made earlier this summer, but received media attention as journalists connected the decision to a recent field study on police questioning practices.

This study is one of a series of studies on Canadian police practices researched by the psychology department at the Memorial University of Newfoundland. The primary researcher, Brent Snook, associate professor of psychology at the university, also co-authored another published study from 2012 on the training of Canadian police in the “technique” of interviewing witnesses. The same Memorial team, of Snook, MacDonald, and Eastwood, also published an earlier study in 2010 on how Canadian police administer the right to silence and the right to retain and instruct counsel – both are required cautions to be given to an accused in police detention as a result of the Charter and Charter case law interpretation. Eastwood and Snook both published a paper in 2009 on how understandable to the accused the right to silence caution was when actually given by the arresting police officer.

Clearly, this group of researchers has looked long and hard at Canadian police investigatory practices and techniques and are well equipped to comment on police practices generally. Comment, they did - in the opening statement of the police training study paper, the authors find that “Two recent field studies on how Canadian police officers interview witnesses suggest that most interviewers are not employing best practices.”

This deficiency in practice was further identified in the most recent study on police questioning. Specifically, the researchers were concerned with the practice of the police to ask “close-end” or leading questions, which did not permit a free flow of information from the witness. Often, the interrogators “violated the recommended 80–20 talking rule and interrupted witnesses … in almost 90% of the interviews.” Such line of interrogation, which requires the investigator to control the interview and the information flowing from the questioning, does not, in the researchers opinion, allow for accurate and complete statements. A lack of training, supervision, and feedback was identified as the main reasons why the interview practices were so inadequate.

It is this kind of interview technique which was at the core of the Chapple case. Christa Lynn Chapple was an operator of a day home for children and had in her care a young child who subsequently suffered an unexplained head injury. At the time of the incident, Chapple was interviewed twice with no charges laid. A year later, after the police received forensic information from Dr. Matshes, a forensic pathologist, Chapple was arrested for aggravated assault and brought in for questioning. It must be noted, as Judge Dinkel also noted, that Dr. Matshes was under investigation for coming to “making unreasonable conclusions” in his forensic findings. In any event, Dr. Matshes opinion that the injury was done by non-accidental blunt force trauma caused the investigators to believe that Chapple was involved despite the lack of evidence to tie her to the injury and despite her previous denials.

The interview spanned over eight hours. It was an arduous interview in which Chapple tried to exercise her right to remain silent at least 24 times. Each time she attempted to exercise her right, the police interviewer ignored Chapple and immediately took over the interview by talking over her. In this interview the 80-20 rule, also known as the Pareto Analysis, requiring the suspect to speak 80% of the time, while the interviewer spoke 20% of the time, was practically reversed. The interview was peppered with long monologues from the police questioner, leading questions, and a repeated disbelief in the statements of Chapple, when she was actually given the opportunity to say something.

This form of questioning is known as the Reid Technique, a line of questioning formulated by Joseph Buckley in the 1950’s, where the investigator uses control of the witness and lengthy monologues to extract a confession. The technique, as Judge Dinkel described in Chapple, “a guilt presumptive interrogation disguised as truth-seeking interview” where “innocence is not an option.” The interview, according to Judge Dinkel’s findings, “was bent on extracting a confession at any cost.” The cost was, in fact, too high as the statement, taken in utterly oppressive circumstances, was deemed involuntary.

There are fortunately lessons to be learned from the courts when evidence is not admitted. The administration of justice, when faced with such findings of a judge, must rethink the practice or the implementation of a technique to ensure the system does not come into disrepute. Fortunately, Calgary Police Services is doing a review of their practices and training. Hopefully, they will be reviewing the studies of Snook and his team as well.

The Reid Technique is still being used across North America. This is in stark contrast to the studies from Memorial University and in defiance of a global trend to ensure miscarriages of justice, through false confessions, do not occur. The only way we can ensure this will not happen is by preserving and protecting the rights of an accused person, which goes to the very core values of our criminal justice system such as the presumption of innocence.

In previous postings, I have discussed the importance of the presumption of innocence to our criminal justice system. Those postings can be found here and here. In the next posting I will expand on the reason why a statement made by an accused to a person in authority, such as a police officer, must be freely and voluntarily given to be admissible in court. The reasoning, as I will discuss, ties into one of the major “themes” of criminal law: choice.

Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada

Last posting, I gave some elementary definitions underpinning the controversy surrounding the right to die issue. I started and ended the posting with a reminder: that these issues might be political, philosophical, religious, and socio-economic, but they are also very personal issues as well. Sue Rodriguez is a reminder of this important factor in our discussions. She is also the moniker for the seminal right to die case heard in 1993 by the Supreme Court of Canada: Rodriguez v. British Columbia (Attorney General).

As most of us well know, the Supreme Court of Canada denied Sue the right to doctor-assisted suicide. Returning to the definitions given in my last posting, Sue’s case was not one of euthanasia, whereby a third party takes another’s life in order to ostensibly relieve the ill person’s suffering, but rather the right to legally take her own life, suicide, with the help of a physician. Recall that under section 241 of the Criminal Code of Canada, anyone who assists another person to commit suicide is guilty of an offence. Thus, Sue was seeking protection for the person, the doctor, who would be assisting her in ending her life at the time she appointed. She explained very poignantly why she so desperately wanted her case to be successful: She wanted her son, who was then nine years of age, to “respect the law and did not want her last act on earth to be illegal.” In her book, Uncommon Will, she explained further, "But if I can't obey the law in the end, I'll know at least I did all I could to change it. So will he [her son]." To Sue Rodriguez, her physicality was an integral part of her identity: "If I cannot move my own body I have no life."

As soon as Sue launched her legal battle, lines were drawn. Many right to life groups opposed her claim, likening her position to state approved euthanasia as practiced by the Nazi Germany regime. She also had her supporters, some who were with her until the very end and others who she could no longer trust. John Hofsess, an initial supporter, who was the organizer of the Right To Die Society, quickly became an insider and was heavily involved in Rodriguez’s bid until she learned he had, without her permission, penned a letter to the editor of the Vancouver Sun, under her signature, criticizing the ALS Society. In the end, it was Sue’s lawyer, Vancouver based human rights lawyer Chris Considine, and then NDP MP, Sven Robinson, who stayed the course. Indeed, Sven and an unnamed doctor were with Sue Rodriguez on February 12, 1994 when she passed away after she self-administered a fatal concoction through a straw.

Legally, the Rodriguez decision not permitting assisted suicides and finding section 241 constitutional, split the nine-member court with five justices upholding the section and four justices finding the section constitutionally flawed. The argument was primarily based on section 7 of the Charter of Rights and Freedoms, what is known as the right to life section, although the cruel and unusual punishment section pursuant to s. 12 of the Charter and equality section 15 were also invoked. In the end, the majority judgment, preferred the sanctity of life over the right to die and collective societal rights over an individual’s right to control his or her own life.

The four dissenting justices who sided with Rodriguez, which included then Chief Justice Antonio Lamer and present Chief Justice Beverley McLachlin, wrote in the minority judgment that "the right to die with dignity should be well protected as is any other aspect of the right to life." In their view the Criminal Code prevents people like Rodriguez from exercising autonomy over their bodies available to other people.

What does this case bode for the future? Presently, as I will discuss more thoroughly in a future posting, the British Columbia Supreme Court has recently once again considered the right to die issue through three very different plaintiffs: Lee Carter, Hollis Johnson, and Gloria Taylor. Lee Carter, together with her husband Hollis Johnson, raised the issue on behalf of Lee’s mother, who was forced to end her life overseas instead in her home in Vancouver due to the ban on assisted suicide. Gloria Taylor, like Sue Rodriguez, suffers from ALS and wishes, like Sue, to end her life legally. On June 15, 2012, Madam Justice Lynn Smith found for the plaintiffs and struck down section 241, giving the Federal government a year to amend the Criminal Code accordingly. In the meantime, Justice Smith allowed Gloria Taylor, through a constitutional exemption, the conditional right to commit suicide with a physician’s assistance. A constitutional exemption is a rare power under s. 24(1) of the Charter, used by the court to exempt individuals from the effects of legislation on the basis that the legislation, for this particular individual, is constitutionally oppressive.

Considering the justices who compose the majority are no longer sitting on the Court and Chief Justice McLachlan, a member of the minority in favour of striking down the legislation, is still sitting with a much different court composition, I might add, the arguments raised and accepted in the Carter case may survive Supreme Court of Canada scrutiny. There have also been many more cases of assisted suicide since the Rodriguez case; cases in which the courts have been extremely reluctant to find guilt under s. 241.

In the next posting on this issue, I will discuss some of those cases and the impact they might have on a future Supreme Court of Canada decision. Whether or not there will be such a future SCC decision is dependent on the federal government, particularly Rob Nicholson, the Minister of Justice, who must decide whether or not to appeal the Carter case to the BC Court of Appeal. Such decision must be made within thirty days of the decision, making the deadline the end of next week. In anticipation of this decision, there are a number of websites with petitions asking the Minister to appeal such as the Council of Canadians with Disabilities. Yet, some opinion polls suggest Canadians are in favour of some form of doctor-assisted suicide. The issue therefore remains unresolved.

Whose Life Is This Anyway? The Canadian “Right To Die” Debate Part One – Definitions and A Story

Sue Rodriguez was an active and intelligent woman when she was diagnosed with the debilitating and ultimately fatal, Lou Gehrig’s disease or amyotrophic lateral sclerosis (ALS) in 1991. Indeed, it is her wit and poise many of us remember when we recall the headlines she generated. Her quote, “whose life is it anyway,” spoken in a slow drawl, her ability to speak being slowly taken away by disease, still resonates with Canadians today as once again our courts grapple with the most basic issues of life and death.

As with all controversial issues, the right to die has taken a “life” of its own as it extends over all areas of deeply held beliefs such as philosophy, science, law, religion, politics, and socio-economic concerns. The issue has been considered in all forms of media and in all manners of legal cases. It has been touted in Kevorkian-like advertisement and debated in the highest offices of the land and yet, it is a profoundly personal issue, which transcends nationality and ethnicity.

Throughout this vastness of ideas and beliefs, it is essential to keep in mind that at the very core of the issue, there is always an individual, a person who is suffering, a person who wants a choice where a choice is not legally given. Sue Rodriguez was such an individual those many years ago when she took her right to choose to the Senate and to the Supreme Court of Canada. In the end, it was Sue Rodriguez who choose to die “on her own terms” outside of the law, even though her last wish was to remain one who respected it.

Euthanasia and assisted suicide are actually two different concepts. Euthanasia is the deliberate act undertaken by one person with the intention of ending the life of another person in order to relieve that person’s suffering. There are three forms of euthanasia: voluntary, non-voluntary, and involuntary. Voluntary euthanasia occurs when the act is done in accordance with the wishes of a legally competent individual or on the basis of a valid medical directive prepared when the patient is competent to authorize the procedure. A competent individual is capable of understanding the nature and consequences of the decision to be made and capable of communicating this decision. Non-voluntary euthanasia occurs when the act is done without knowledge of the wishes of a competent individual or, with respect to an incompetent individual. This form of euthanasia may attract criminal sanctioning. The third and last form is involuntary euthanasia occurs when the act is done against the wishes of the individual. This act is indistinguishable from murder or manslaughter and should attract the full force of our criminal law.

The Criminal Code of Canada, pursuant to s.14, essentially prohibits euthanasia by stating: “No person is entitled to consent to have death inflicted on him.” It is a core traditional principle of our criminal law that an individual cannot consent to his or her death. Indeed, one cannot even consent to grievous injury, which explains why even in a consensual violent sport like hockey, Todd Bertuzzi was charged with assault causing bodily harm. Whether or not the sentence imposed, a conditional discharge, was appropriate is another matter for a later blog. In any event, even in the medical sense, a doctor who gives the patient a lethal injection would be criminally liable. Also in the Criminal Code are legal duties placed upon medical personnel, which require them to perform their duties with all due care, requirements contrary to taking a patient’s life.

Therefore, euthanasia is clearly contrary to Canadian criminal law, and should be prosecuted as first-degree murder, because there is an intent to cause death, which is the definition of murder, and the act is most often planned and deliberate, which is the definition of first-degree murder. However, the Canadian reaction to euthanasia scenarios have fallen short of first-degree murder charges and have tended toward lesser charges such as charges of second-degree murder, manslaughter, and administrating a noxious substance. The charge decisions have definitely been influenced by the circumstances surrounding the euthanasia as a response to human suffering and the desire to relieve the suffering, such as in the Robert Latimer case.

Another factor is the unpredictable nature of juries, who are required to make decisions according to the rule of law but can be swayed by emotional factors as well. Finally, it can be legally difficult to prove murder in euthanasia cases. The Crown prosecutor must prove a legal and factual casual connection between the accused’s actions and the death. Typically, medical evidence is required to make this required connection. In euthanasia cases, it may be medically difficult to prove the exact cause of death when a person is in any case close to death and taking considerable pain medication. 

Assisted suicide, on the other hand, is the act of intentionally killing oneself with the assistance of another who provides either the knowledge to do it or the means to do it, or both. Assisted suicide is specifically prohibited in our Criminal Code under s.241, in which counseling someone to commit suicide or aiding or abetting someone to commit suicide is contrary to the law. Even if the person in question does not die from the aid, the person so assisting may be guilty under the section.

The difference between euthanasia and assisted suicide is therefore dependent on the type of involvement of the third party: euthanasia is when the action of a third party intentionally causes the death of a patient such as through the administration of a lethal injection and assisted suicide is when a third party provides the means and/or information necessary but the actual act causing death is carried out by the patient herself.

My next posting will continue outlining the legal background to this debate with a survey of the legal decisions made on the issue. However, to start and end this posting with Sue Rodriguez is essential: she was a real person suffering from the effects of a debilitating disease and her choice, to end her life when she saw fit, not when it was beyond her control, was her truest wish.

 

Extraditing Magnotta: Explaining the Extradition Treaty

Not unexpectedly, Luka Rocco Magnotta, aka the alleged “body-parts” killer, was arrested, without incident, in Berlin, Germany. As he was arrested outside of Canadian jurisdiction, Magnotta may only be transferred to Canada pursuant to treaty agreements between the two countries. The Treaty now in force dates from 1979 and governs both the extradition of fugitives facing charges (or having been convicted facing sentence) in Canada when found in Germany as well as those fugitives from German justice found on Canadian soil.

In 2004, a supplementary Treaty was implemented between Canada and Germany.  For the most part, this supplement merely clarifies or simplifies the language of the original, but there are a few substantial changes to the document, which I will note. One significant change is a broadening of offences subject to extradition: in the original Treaty, an extraditable offence needed to be listed on a Treaty, while in the amended version, the schedule or list requirement is deleted. Thus, any criminal offence, which is a criminal offence in both Germany and Canada, is subject to the Treaty. In extradition, it is the substance of the crime, which is relevant, and therefore it is of no matter that the crimes may be described differently in each country. As long as the essential elements of the crime are similar, the crime is subject to the extradition process.

There are, of course, some exceptions. For instance, extradition will not be granted for “purely military” offences. Extradition may also be refused if the charge is purely politically motivated or if the charge merely persecutes the fugitive on the basis of race, religion, nationality or political opinion. Some offences are excluded from these exceptions, such as murder and kidnapping.  Also, if the fugitive is a national or a citizen of the country in which he or she is found, and is not therefore a national of the requesting country, the fugitive will not be produced to the requesting country, but prosecuted in the found country.

Additionally, extradition shall not be granted if the alleged fugitive has already been tried and acquitted for the crime or the fugitive has already completely served his or her sentence for the offence. A significant change from the 1979 Treaty is the treatment of situations of amnesty: now extradition may be refused if the fugitive was pardoned or received amnesty for the crime. In the 1979 Treaty, a fugitive was still subject to extradition in cases of amnesty.

Consistent with Charter decisions, the treaty suggests extradition “may be refused” should the crime be one for which the death penalty may be imposed where the other country does not impose the death penalty. However, a fugitive may be extradited, in those circumstances, where the requesting country agrees not to impose the death penalty.

A further possible ground for refusing extradition is on the basis of a conviction of an offence of “contumacy.” The term refers to a disobedience of a court order or a refusal to obey an order, such as a summons. An example would be where the accused failed to appear in court for his trial on a criminal matter and he was convicted in absentia or in the person’s absence. In this instance, extradition may be refused unless the requesting state agrees to permit the fugitive to test the underlying conviction as well. This safeguard ensures that the fugitive’s conviction will be proven properly, based on the facts and evidence and not on the basis of a mere failure to appear. 

There are also various procedures to be followed in requesting extradition under the Treaty. Previously, the request must come through diplomatic channels, but the 2004 amendments now requires the request to come from the respective departments of justice from each country, yet still permitting the use of diplomatic channels where appropriate.

Procedurally, documentation must be sent to support the request. Such information is required to establish the identity of the fugitive, a description of the crime alleged, and proof a warrant for arrest is outstanding. In certain circumstances, if required, information justifying the charges may be sent and presented as well. If the information provided is insufficient, instead of discharging the fugitive for want of prosecution, the state must now request the needed information from the requesting state.

When extradition is finally granted, the fugitive is surrendered to the requesting state’s authorities with the requesting state bearing all expenses of transport. This surrendering may be postponed if the fugitive faces charges in the surrendering state or the state may, as provided by the 2004 amendments, “temporarily” surrender the fugitive to be returned at a later date.

There is a further caveat to the extradition process, which is known as the “rule of specialty.” This rule requires that the fugitive be only tried in the requesting state for those crimes for which he was surrendered. He may face trial on no other charges. This requires particular attention by the requesting state to ensure that all appropriate charges are before the extradition court.

What does this all mean for the Magnotta case? Press reports have suggested Magnotta will be consenting to his surrender to Canada. Considering the provisions of the Treaty, the charges for which he faces, the fact he is a Canadian national, and the documentary evidence, which is readily available to be sent to Germany, Magnotta’s consent makes sense.  On extradition for this charge there appear to be no valid arguments, which could be raised, to stop his surrender to Canadian authorities. Even with consent, it will take some time before Magnotta will be sent back. Formal requests do still need to be made and certain documents are required to be sent and signed. Additionally, in light of the Treaty provisions, the Department of Justice will need to first complete the Canadian investigation to ensure Magnotta will be surrendered for all offences he might possibly face in Canada. Only then, will Magnotta return to face the real issues of guilt or innocence.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Incivility of Civil Disobedience: Part One

Civil disobedience is a familiar phrase these days what with the Occupy movement occupying public space and now University students protesting higher tuition rates. The term “Civil Disobedience” was coined by American author, writer, poet, naturalist and all around polymath Henry David Thoreau as the title of an essay originally published in 1849 as "Resistance to Civil Government." At the time, Thoreau was the voice of a country struggling with itself, both politically and morally. His was a voice of reason but also one of deep moral principle. In 1846, Thoreau was arrested and imprisoned for a failure to pay his poll taxes. Poll taxes were levied on all eligible voters as a prerequisite of voting and were the main means of raising funds for local governments. The poll tax, which anti-slavery abolitionists like Thoreau refused to pay, was levied to fund the Mexican War in a bid to extend American slave territories. The amount of the tax, even at that time a paltry $1.50, was viewed by Thoreau as too high a moral price to pay. Although his Aunt, against his wishes, paid the fee and Thoreau was released after only one night in jail, his essay on the experience remains today the first in a line of many personal actions of civil disobedience. I say “personal” as there was already an American example of group disobedience in the form of the famous Boston Tea Party, an act of disobedience heard across the ocean by King George III and the British Parliament.

Martin Luther King Jr., in another example of personal disobedience to the law, would also pen a famous piece of prose in the Letter from the Birmingham Jail. In this acerbic response to his critics, King tackles head on the moral and ethical issue of obeying “just” and “unjust” laws. To support his actions, King refers to St. Augustine’s position that an “unjust law is no law at all.” He also uses as a stark analogy the ultimate “unjust” laws of Nazi Germany. The letter became a touchstone for the civil rights movement and the idea that morally “unjust” laws should not and could not be followed became a permanent fixture in the American psyche.

Unsurprisingly, in Canada, acts of civil disobedience have been most pronounced in Aboriginal rights issues such as in the Burnt Church conflict involving the traditional fishing rights of the Mikmaq nation of Atlantic Canada. Another high profile case of civil disobedience was the Ipperwash Crisis and the police shooting death of Native activist, Dudley George.  Of course, more recently, the Occupy Movement is another example of collective disobedience. Canadians even have a “how-to” book for such practices with the Protestors’ Guide to the Law of Civil Disobedience in British Columbia. This document is easily accessible on-line and is written by Leo McGrady Q.C., a well-known BC lawyer specializing, on the union/employee side, in labour relations. No surprise, as BC has seen more than its share of civil unrest relating to teacher labour issues. Read my previous blog on the Legal Politics of Seussville for more on the issue.

With this little history lesson, my next posting will deal with the legal aspects of civil disobedience. How have the Courts reacted to this issue? Is the Charter engaged when acts of civil disobedience are stopped? And finally, what kind of legal defences are available when such acts become subject to the criminal courts?

 

The Cabbie and the Glider: A Tale of Two Bail Hearings

Two stories surfaced in Canadian legal news this week: the Montreal cab driver, charged after running down a man after he attacked his cab and the British Columbia hang glider operator charged after a woman he was flying with fell to her death.

The Montreal story went viral after a video was posted showing part of the altercation. It is shocking to see the cab driver bombarded by the mob but equally shocking to see his cab turn into the crowd and run down the victim. As heated as the incident was, the bail hearing appearance on May 2 was more so as an outraged group of cab drivers descended on the Montreal courthouse to lend support for the driver. The media picked up story after story from the crowd of cabbies, many of whom were immigrants, of humiliating and violent incidences of passenger misconduct involving racially motivated comments.

According to media reports, the 47 year-old cab driver of Haitian origins, Guercy Edmond, was released on a “promissory note”, with conditions, in the amount of $3,000.00. He was released on bail after a tongue lashing by Quebec Judge Jean-Pierre Boyer over the length of time the cabbie sat in custody (four days) and the crown attorney’s failure to review the video-tape, posted on YouTube of the altercation. He faces charges of aggravated assault under section 266 of the Criminal Code, assault with a weapon (presumably the cab) under s. 267, failing to stop at the scene of an accident under section 252, and dangerous driving causing bodily harm pursuant to s. 249(3).

By way of explanation, our criminal law system, based upon the English common law tradition, presumes an accused will be released from custody without conditions. This bail presumption is very much connected to our cherished presumption of innocence: upon arrest, the accused is presumed innocent until proven otherwise by the crown prosecutor in a court of law before an impartial and independent judiciary. The bail presumption is also consistent with our Charter rights: section 11(d), which constitutionally protects the presumption of innocence, section 11(e), which gives the accused the right not to be denied reasonable bail without just cause, and particularly the s. 7 right to liberty, which cannot be deprived except in accordance with our principles of fundamental justice. On this basis, the bail procedures in the Criminal Code require unconditional release. For example, section 515(1) of the Criminal Code states that:

Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions

Any decision contrary to this fundamental principle of release can only be done in very restrictive circumstances. However, there are exceptions to the general rule, where the presumption is not for release (also known as a “reverse onus” situation where the accused must “show cause” why detention in not required), for more serious offences such as murder (section 469 offences) or for those accused already on a prior form of release.

Consistent with our desire to protect the innocent, section 503 of the Criminal Code requires an accused, who is not released upon arrest, to be brought before a justice of the peace or provincial court judge for a bail hearing within 24 hours of arrest without unreasonable delay or as soon as practicable. In Alberta, due to a “promise” made by Ralph Klein when he was Premier, there are 24-hour bail hearings available. In any event, once brought before a judge, the Code does permit a bail hearing to be adjourned for a maximum of three days without the consent of the accused. Thus, Mr. Edmond, who was arrested on Sunday, April 29, appeared before a judge, within twenty-four hours of his arrest, on Monday, April 30. At that time, the hearing was adjourned within the three-day time limit, without requiring consent of the accused, to Wednesday, May 2.

In Mr. Edmond’s case, the crown was objecting to his release from custody. Our criminal law requires an accused to be released from custody unless there are cogent reasons not to release the accused. If, as in the case of Mr. Edmond, the Crown objects to release, the Crown must “show cause” or justify why the accused should not be released. In fact, even if the accused is released, the crown must also “show cause” why conditions to that release would be required.

There are three grounds for detention under s. 515 (10) of the Criminal Code. Section 515(10)(a) requires the justice to order detention where it is necessary in order to ensure the accused’s attendance in court. Section 5151(10)(b) requires a detention order where it is necessary for the “protection or safety of the public” including a substantial likelihood the accused would commit further offences or interfere with the administration of justice. The last ground deems detention is necessary to “maintain confidence in the administration of justice.” This last ground requires the justice to consider evidence relating to the strength of the crown’s case, the seriousness of the offence, the circumstances surrounding the offence, and the potential sentence to be imposed upon conviction.

On this basis, clearly, Mr. Edmond, who had no prior criminal record, enjoyed the support of his family and peers, was the financial support for his wife and two teenagers, and who allegedly committed the offences in extreme circumstances, would be an excellent candidate for release. In other words, the crown would be hard pressed to justify his detention. This is the reason why the judge was less than impressed with the prosecutor at the time of the bail hearing: there was no justifiable legal reason why the crown should not have consented to the release of Mr. Edmond. Although the police, in certain circumstances, also have the authority to release an accused from the police station, the charges laid against Mr. Edmond were serious enough to require his attendance before a judge. Mr. Edmond is to appear in court, to set a date for trial, on June 20.

Just a note here on the form of Mr. Edmond’s release. According to the media reports, Mr. Edmond was released on a “promissory note,” which is not one of the authorized forms of release under the Criminal Code. Again, due to the presumption in favour of release without conditions, the forms of release available run from the least restrictive to the most restrictive. The least restrictive form of release is known as an “undertaking,” with or without conditions. This release, also known as a Form 12 release, is a document signed by the accused wherein the accused “undertakes” to attend court on a particular date and time. If there are conditions, such as reporting to a police officer or remaining in a particular jurisdiction, they are listed on the signed form as well. The next form of release, more restrictive than an undertaking, is a recognizance. A recognizance requires the accused to acknowledge a debt to the Crown, which is forfeited if the accused fails to appear in court. The amount is specified in the document and may or may not require the amount to actually be deposited with the court. A recognizance may also require a surety, who is a third party willing to ensure the accused appears in court and follows any release conditions. A surety may also be required to acknowledge a debt to the crown, which may be forfeited if the accused breaches bail. Considering Mr. Edmond was released with a monetary amount ($3000) attached, most likely the form of release was a recognizance with no sureties and no deposit.

One of the conditions of Mr. Edmond’s release requires him to not pick up fares on St. Laurent Blvd. between Sherbrooke and St. Joseph Sts. between 9 p.m. and 6 a.m., which is within the same area in which the incident occurred. According to the evidence read into court, before the events before the video recorded the altercation, started in the cab after Edmond picked up “very drunk” passengers, one of who was the victim, Benoit Kapelli. While in the cab, Edmond was subjected to racially motivated comments and was assaulted by Kapelli, who ultimately left the cab while kicking at the vehicle. Edmond confronted Kapelli, but the other passengers joined in the attack of the cab. Edmond was able to drive away but was still tracking the passengers as they walked. At this point, the explanation for the events become vague as Edmond’s cab either deliberately or accidently swerved into a lamppost close to Kapelli, resulting in the cab’s front fender falling off. Later, as seen in the video, a pedestrian throws the bumper at the cab. Again, watch the video here to see the final moments of the incident.

The hang glider’s fate was not so certain as the Judge adjourned his bail hearing to Friday, May 4 in anticipation of gathering more evidence. The evidence, of course, is actually inside the accused, William Jonathon Orders, who swallowed the crucial memory card capturing a video of the fatal flight. As they say “this too will pass” and with the passing it is likely Mr. Orders will then be released on bail. Mr. Orders is charged with willfully attempting to obstruct the course of justice pursuant to s. 139 of the Code for his attempt to hide the evidence from police investigation. No doubt further charges, such as criminal negligence or even manslaughter, will ultimately be laid, when the physical swallowed evidence is finally retrieved.

 

 

Let’s Talk About: Property Rights & The Canadian Charter of Rights and Freedoms

The Alberta election is heating up and is soon to be decided as Albertans go to the polls on Monday, April 23, 2012. One of the many controversial issues raised by the Wildrose leader, Danielle Smith, is on property rights and the absence of such rights guaranteed in the Charter. Smith, on her Wildrose website, suggests the “fundamental role” of government is the “protection and preservation of property rights.” As part of her platform on this “fundamental” issue is the promise her government would “entrench property rights.” She would do this by implementing an Alberta Property Rights Preservation Act, entrenching “basic property rights in the Alberta Bill of Rights” and spearheading “a national initiative to add property rights to the Canadian Charter of Rights and Freedoms.” 

Really? Are we really to believe that this “pressing” issue of property rights should be shoulder to shoulder in our Charter along with our fundamental freedoms such as freedom of expression, freedom of conscious, and equality rights. Should our preoccupation with individual, political, and democratic rights take a back seat to issues of ownership and possession? What will this mean for our criminal law and the ability of the government to reasonably search and seize property for a criminal investigation? Does the corporeal trump the spirit? Is property, which not everyone has the ability to own, require the special attention and protection of our most Supreme laws? Why should property rights, which were specifically and deliberately left out of the Charter, now be placed back in?

Not that we would ever see the unanimous agreement to do so that is required before the Charter could be amended. Do we need the kind of property rights litigation, which occurs in the United States, where property rights were specifically enshrined in their Constitution and viewed as sacred as life itself? And if we feel we do want this protection, are we prepared for the result. For a good discussion on the history of American Constitution property rights, read the SCC decision in Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.).

Danielle Smith may have taken a page from her namesake, Adam Smith’s, Wealth of Nations, with a call to protect life, liberty and property but fails to recognize the positive obligation protecting property would place on the government. Thus, we would need a robust and interventionist government, willing to step into the property rights fray. Entrenching property rights would mean not less government but more government, as the Courts would be busy reviewing the government’s ability to regulate and protect the national interest in the name of the economy. Take for instance the issue of natural resources and the role ownership of such resources would play under a property Charter rights scenario.

Canada does in fact have some experience with protection of property rights as section 1(a) of the Canadian Bill of Rights, 1960, the statutory, quasi-constitutional precursor to the Charter, protects “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.” While this still enacted statute can still be used to “protect” property rights, the legal interpretation of this right has not provided the protection the Wildrose maintains they can provide if elected. 

But would such entrenchment of property rights really “protect and preserve” an individual’s right to their property as touted by the Wildrose? It is instructive perhaps to look at the case law on property rights in the Bill of Rights. This passage of the Bill of Rights was considered by the Supreme Court of Canada rather recently in the 2003 Authorson case, in which disabled veterans attempted to require the federal government to pay past interest on pension funds despite legislation minimizing Crown liability. The end result of the decision, dismissing the veterans’ claim, was to uphold Parliament’s right to expropriate property without compensation.

Legally, an “entrenchment” of property rights does not in and of itself suggest an individual’s right to property would be absolutely guaranteed. Indeed, considering all of our rights under the Charter are not absolutely protected, any “new” Charter rights would be treated similarly. According to s. 1, all of the Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  In addition, both Parliament and each provincial legislature, including Alberta, have the authority to enact legislation contrary to the rights guaranteed in the Charter through the Charter notwithstanding provision contained in s. 33.

Therefore, the Wildrose is promising, in a very heated election, something they cannot themselves guarantee. Undoubtedly these are the best promises to make: no one can take them to task for merely promising to try. Interestingly, the Authorson case was written by the then Alberta appointment to the SCC, Justice Major, who is now trying to sort out the MLA compensation debacle. Of course, the proponents of property rights would suggest it is the poor wording of the Bill of Rights, offering property protection in accordance with due process, which is the problem and which can be easily fixed.

But even if the Charter was amended and property rights were absolutely protected as desired by the Wildrose, the question still remains whether or not protecting property rights is in the best interests of Canadians. If we say “yes” to property rights, then we must be prepared for all kinds of litigation overrunning our justice system such as: litigation on the right of the government to tax individuals; litigation on the government’s right to make decisions on natural resources; litigation on intellectual property rights including copyright and access to information; and litigation regarding criminal law and search warrants as discussed in the SCC case of Quebec (Attorney General) v. Laroche. We could even see spill-over litigation in the area of economic rights, which traditionally has been unprotected by the Charter as discussed in the SCC Gosselin case, which could put Canada’s economic health at risk by promoting the financial sovereignty of the individual at the expense of a strong economy and healthy society.

Thus, in the end, we must decide if property rights are worth protecting in our country knowing the possible legal pitfalls, which may ensue. Let’s ensure the next thirty years of Charter litigation promotes our fundamental freedoms as individuals of choice and free will, entitled to respect and dignity, instead of a document weighed down by possessory rights and self-interest.

Are You Listening to This? The Constitutionality of Interceptions of Private Communications In Exceptional Circumstances

Justice Moldaver and Justice Karakatsanis, writing for an unanimous court in the Tse case and their first decision as Justices of the Supreme Court of Canada, found s.184.4 of the Criminal Code, which governs investigatory interceptions of private communications in “exceptional” circumstances, lacking in the constitutionally required safeguards required for such interceptions. According to the Code, “exceptional” circumstances refers to the situation where a peace officer is facing an “urgent” situation whereby he or she is reasonably unable to follow the normal procedures outlined in the Code for such interceptions.

What would these normal procedures require? First, we must step back from the section and pause to consider the context. Section 184.4 is in Part VI (6) of the Criminal Code relating to “invasion of privacy,” or when a peace officer wants to investigate a criminal matter by using an investigative technique involving the surreptitious interception of private communications. In other, more colloquial terms, the police want to “spy” or “eavesdrop” on a targeted individual, whom the police believe on reasonable grounds to be committing or planning to commit a crime. As we know from television and movies, spying is a very high tech activity requiring the most cutting edge devices such as wiretaps accessed by loads of smart looking mechanical equipment found in plain white cube vans with cool looking techies wearing enormous noise-cancelling headphones. Also present is the ubiquitous computer laptop, as today’s savvy cop needs to use the best in order to combat the even technologically savvier criminal.

As great as these techniques look on the big screen, they do not translate well in the constitutional setting; a context, which takes individual rights seriously, and violations of such rights even more seriously. In our Charter, through sections 7 and 8, the state is required to respect the dignity, autonomy, and integrity of the individual as a defining element of individual freedom. However, with this state obligation, as Pierre Trudeau so eloquently stated “there's no place for the state in the bedrooms of the nation,” comes the competing need to protect society from harm through state-sponsored police investigation and protection. It is the judiciary’s role to determine the appropriate balance between these competing rights through a generous and flexible interpretation of the Charter.

As a result, the starting point in the Criminal Code for invasion of privacy is to create an offence where private communication is intercepted by any means. Private communications are any oral, telephone, or radio-based communication made in the context of a reasonable expectation of privacy. Thus, the originator of the communication intended the communication to be made to another person, with an expectation no one else other than the intended receiver would hear it. Any non-consensual interceptions to such private communication are therefore unlawful and contrary to section 184 of the Criminal Code.

There are two exceptions to the rule, wherein the interception is unlawful. One scenario involves the consent to intercept by either the originator or the receiver of the communication. The other scenario, which is of interest in the Tse case, contemplates a lawful interception where the investigators obtained prior judicial authorization to intercept the communications in accordance with the procedure as set out in the Criminal Code. The application to a Judge for such an authorization is described in section 185 of the Criminal Code.

The application procedure is rigorous: it must be made in writing, it must be made before a superior court judge or a designated judge, it must be signed by the provincial Attorney General or the Minister of Public Safety and Emergency Preparedness or a duly authorized agent specially designated in writing, and must be accompanied by a sworn document (affidavit) of the investigating officer. 

In turn, this affidavit, based on the information and belief of the investigator, must include the following information: the facts justifying the authorization should be given; the particulars of the alleged crime; the type of communication to be intercepted; the names, addresses, and occupations, if known, of all the persons intended to be intercepted together with the reasonable grounds to believe such interception may assist the investigation; a description of the place, if known, where the communication is to be intercepted; general description of how the communication will be intercepted; the number of times, if any, such an application for interception has previously been made under the section and the specific details of that prior application; the length of time for which the interception is required; and why other investigative techniques would not likely succeed or why it would be impractical to use other techniques due to the urgency of the situation or if other techniques were tried and failed, what those other investigative techniques were and why they failed to work.

Even if the above procedure is followed to the letter and even if the peace officer has fulfilled all of these pre-requisites, the application Judge, under section 186, must not issue an authorization unless her or she is satisfied that it is in the best interests of the administration of justice to issue the authorization to intercept and that other investigative techniques have been tried and failed, or are unlikely to succeed, or urgency requires this technique.

The steps needed and the information required before an authorization is issued emphasizes the status quo of non-interception and provides a constitutionally permissible exception to the general rule.

Now that we have stepped back from the section at issue in the Tse decision to look at the broader context, we can appreciate the constitutional deficiencies found in s.184.4. First, as earlier discussed, s. 184.4 is an exception to the exception found in s. 185. Section 184.4 permits a peace officer to intercept a private communication in prescribed exigent circumstances where: the peace officer believes on reasonable grounds that an authorization cannot reasonably be obtained and the peace officer believes on reasonable grounds the interception is “immediately necessary” to prevent an “unlawful act” that would cause “serious harm” to person or property and where either the originator of the communication or the receiver of the communication will cause the harm or is the intended victim of the harm. That’s it. There is no requirement for prior judicial authorization. It is the investigator, not an unbiased judicial officer, who makes the determination of the urgency of the situation.

All the safeguards found in sections 185 and 186 seem to disappear as “urgency” trumps “privacy” in s. 184.4.  Not so according to Justices Moldaver and Karakatsanis. In their view, certain aspects of the section pass “constitutional muster” as it provides an appropriately flexible authorization approach in dire or emergency circumstances. However, this appropriate response can only be found by stepping back once again from the section and looking to s.188.  This section contemplates a “stop-gap” authorization, which is issued in urgent situations where an interception is required before there is an opportunity to apply for an authorization under s.185. This “follow-up” authorization must be sought for the s.184.4 situation as soon as is practicable to minimize the time in which a non-authorized interception is at play, thereby maintaining the rigours of the interception exception.

But wait, did the SCC not find s.184.4 invalid and contrary to the Charter? Yes, but in a very limited way, which protects the integrity of the section and signals to the legal community that crime fighting is back on the Agenda with the Charter’s full approval. The constitutional concern with the section is not the lack of judicial approval for an interception, as that judicial-less state would last only for a short time, but it is the lack of notice, which comes after the interception is used, to the intended targets that causes constitutional concern. No notice to those involved means a lack of oversight of the use of police powers. No notice means a lack of disclosure, which in turn means no ability to take the matter before a Judge to determine the appropriateness of the extreme police actions. It is this failure, which the Harper Government has twelve months to rectify. This is an easy fix with the SCC giving explicit instructions on how to comply.

This telling decision, written by new appointments, gives us some insight into the future. The Charter has recently celebrated its 30th anniversary without much fanfare. This similarly low-key decision reiterates the now familiar Charter values of privacy and oversight but at the same time reinforces the State’s interest to combat crime. The Tse decision appears to provide an interpretation that presumes constitutionality instead of requiring proof of it. It seems to prefer self-referential statutory interpretation as opposed to the trail-blazing early Charter years when Chief Justice Dickson and Madame Justice Wilson wrote sometimes blistering commentaries on the role of the State in protecting Charter rights. Whether or not this is a trend will be seen in the next SCC Charter decision.

 

 

 

 

The Result In Canada (Attorney General) v. Bedford

The much awaited decision from the Court of Appeal for Ontario in the Bedford case on the constitutionality of various prostitution related sections of the Criminal Code has finally been released.

The majority of the court agreed with Justice Himel's lower court decision that s. 210 common bawdy house and s. 212(1)(j) living off the avails of prostitution are unconstitutional as being contrary to the principles of fundamental justice under s. 7 of the Charter.

In the matter of keeping a common bawdy house, the Court struck down the section but suspended the invalidity of the section for 12 months to give Parliament an opportunity to redraft the section in a Charter friendly manner.

The offence of living off the avails of prostitution under s. 212(1)(j) is unconstitutional in the limited circumstances of where the relationship between the prostitute and those living off the avails is not exploitive. For example, where a prostitute supports his or her family with the earnings of prostitution, the family would not be exploiting the prostitute and should not be charged under this section. This exemption would not preclude "pimps," who put prostitutes on the streets for their own economic benefit would still be subject to this subsection. 

Where the court did not agree with Justice Himel was on the issue of the constitutionality of s.213 communication for the purpose of prostitution. The court upheld this section on the basis of a previous decision from the Supreme Court of Canada (SCC) on the same issue. In that previous 1990 case, Reference re ss. 193 and 195.1(1) (c) of the Criminal Code, the Government of Manitoba referred the then new and untested communication sections to the SCC to determine if the sections would withstand a possible Charter challenge. For further discussion of references to the SCC, please read my previous posting here. The SCC found section 195.1(1)(c), the same section at issue in Bedford but numbered as s. 213(1)(c), to be contrary to fundamental freedom of expression under s. 2(b) of the Charter but saved under s. 1 of the Charter as a reasonable limit in a free and democratic society. I have discussed s.1 in relation to freedom of expression in some previous postings and most particularly here and here.

The decision is of interest in terms of the findings of the Court on the s.7 issue. However, the decision also makes some important comments on the principle of precedent and the restrictions on a Court when revisiting a decision, which has already been a subject of consideration by a higher level Court. This fascinating discussion, which I suggest impacted the decision in Bedford and provides guidelines for future cases, will be the subject of my next post.