A BRIEF BOOK REVIEW ON WHAT A BOOK CAN DO: JONATHAN RUDIN’S INDIGENOUS PEOPLE AND THE CRIMINAL JUSTICE SYSTEM: A PRACTITIONER’S HANDBOOK  

When I read a superb book, I want to share it. Although I do read e-books, the delight in owning a paper book is its quality of collectiveness. I can share it with family and friends with the hope a critical dialogue can ensue. As a law professor, I can enthusiastically recommend it to my students. When I read a well-written, insightful and impactful book, I don’t want to keep it to myself. The book I am about to discuss, Jonathan Rudin’s Practitioner’s Handbook on Indigenous Peoples and the Criminal Justice Systempublished by Emond Publishers, is one such book. It is a carefully written book for a broad audience of legal practitioners on complex legal issues. Yet it is also a compassionate book, profoundly articulating the failures of our profession and legal system to address historic and continuing wrongs against the Indigenous people of Canada. 

First a note about Jonathan Rudinwho has dedicated his life’s journey to the recognition of our legal failures in our relationship with Indigenous people. His pathway through this book has been straight and true as he himself created legal institutions and legal principles, through his professional work at Aboriginal Legal Services, to ensure no Canadian forgets these failures. He has worked hard to turn these failures into positive developments. This book is indicative of his work and a testament to it. 

The book opens as any legal treatise might by offering a literature review highlighting the systemic issues. But this is no ordinary literature review as page after page, Rudin summarizes each of the 13 Inquiries and Reports tabled since 1989, which have ruminated on Indigenous people in the criminal justice system. Starting with Donald Marshall Jrand ending in the 2015 Truth and Reconciliation Report, it becomes evident that for almost 30 years our system has expounded on these legal failures. It is equally clear, that for an equal number of years we have done little to nothing to change the gross inequalities inherent in our society which have caused those failures. There are an inordinate number of recommendations and a paucity of resulting change. This singular truth haunts the reader and compels us forward as we read page after page of case law steering us through those failures which have come to us through excruciatingly slow and deliberate steps. 

And yet for all of our legal slowness, the impact of Gladue, as discussed in this book, is not so much celebrated as it is waved as a flag of defiance in support of a future that will move faster and with purpose. The purpose being to eradicate the discriminatory practices which have given the statisticaltruths of Indigenous overrepresentation in our legal systems their quality of hardness and bitter remorse. In the last part of the book, we revel in the promise of the extension of Gladueprinciples into every nook and cranny of our legal systems. From sentencing to bail and beyond into military and civil justice, we see a glimmer of what our law can be should we take up the task offered by this book. Indeed, no lawyer even on the margins of practicing law, should put this book aside without thought to what they can do to bring about meaningful change.

Meaningful change can be found in this book. Woven between the pages are suggestive kernels of knowledge that each of us can take back to our law practices, court rooms, and law schools. There is, for example, a telling passage on Aboriginal English (and French), taken from the ground breaking work of Australian Socio-linguist Diana Eades, which can leave one with the kind of “aha” moment needed to create innovative approaches to intractable problems. There are many such veil lifting moments in this book.

Another change moment appears in the chapter dedicated to Indigenous courts as organic entities, holding the promise of a more responsive and proportionate Canadian legal system. This chapter holds real meaning for me, as on June 21, 2018, The Donald Marshall Junior Centre for Justice and Reconciliationwas opened on the Nova Scotian Wagmatcook Reserve. The Centre holds provincial and superior courts incorporating Indigenous justice traditions and healing. It is the embodiment of the kind of change willed by Rudin’s book.

Often we say that truth is stranger than fiction, in the case of this practitioner’s handbook, we can say that truth, like good fiction, can move us to do great deeds. Although the book can be considered a legal treatise, it shows that the law does not need to speak in code to be understood. It is a book which I will keep on my shelves and unreservedly recommend to any future or present legal practitioner. It is a book for sharing and for shared dialogue on what we can do in our profession to right the wrongs of the past. Most of all, however, it is a book offering the promise of a better future for Indigenous justice to be read and fulfilled by us all.

 

SPEAKING NOTES TO THE STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS: Concerning C-75 and the Amendments to the Preliminary Inquiry

Mr. Chair and honourable members of the Standing Committee, thank you for giving me this opportunity to comment on the proposed amendments to the preliminary inquiry sections of the Criminal Code. It is a privilege to be here to speak on an issue which carries the weight of historical discourse and has engaged far greater minds than myself. The question of abolishing the preliminary inquiry has echoed through these halls and the courts of our nation and has engaged the public’s interest as well.

How do I come to speak to this matter? I am by trade a criminal defence lawyer and have been so from my early days of law school in the mid1980s. I have conducted preliminary inquiries, I have argued about them as appellate counsel, and I have written about them as a now law professor. Indeed, I have been rather vocal about the preliminary inquiry and these proposed changes. I hope my Brief and this opening statement will shed some light on why I believe the preliminary inquiry, albeit in a different structural format, is worth saving. 

But first, I will open with a personal story. A story I often repeat to my students when asked which case most significantly impacted me in my early career. The day after being called to the Bar in 1989, I received a case from one of the lawyers sharing space with the law firm for which I was employed. 

The preliminary inquiry was only 2 days away. The client, who was detained in custody, was charged with an attempt break and enter with the intent to commit an indictable offence. The maximum punishment for the full offence, as it involved a dwelling house, would have been life imprisonment but as an attempt it was punishable by fourteen years. Still a significant term. As an aside under the new proposed amendments such a preliminary inquiry would not be possible. 

 It was rather a pathetic and all too familiar story. The client was found loitering in front of a home on the sidewalks of Rosedale holding a pointy and frayed stick. He appeared to be intoxicated. The police were called. Upon investigation of the nearby home, it appeared that the front door lock was freshly scratched with bits of paint that appeared to be derived from the client’s pointed stick. Appearances, however, may be deceiving, Upon review of the file, I recommended to the client we argue against committal at the preliminary inquiry. Needless to say, Judge George Carter agreed. The client was discharged and immediately released. This preliminary inquiry changed his life. He had a lengthy record and was an alcoholic, but this change in his fortunes gave him hope. He straightened out, went back to school and became a youth worker in a young offender facility. Ultimately, he attached himself to the UN peacekeeping tour of Bosnia and he never looked back. 

 I know I was asked here based on my academic credentials and writing in the area but to me there is no clearer evidence of the importance of the preliminary inquiry as a tool for good than this story and I did want to share it with you.

So on to the less emotional side of the equation.

I am certain you have already heard last week many good reasons for why the preliminary inquiry in its present format must be retained. My Brief also outlines the historical significance of the preliminary inquiry as an essential protective shield against the power of the state. It is more than procedural. It lies at the heart of the criminal justice system as it is linked with the presumption of innocence and fair trial concepts. The preliminary inquiry calibrates the scales of justice in accordance with those fundamental principles of justice and provides meaningful judicial oversight. 

The power of the preliminary inquiry, as I have already alluded to, cannot be taken for granted, nor underestimated. But preliminary inquiries take time, precious court resources that are finite. We are, in many ways, facing a crisis in our court system as evidenced by the Jordan andCody decisions on trial delay. In fact, one of the suggestions arising from the Senate Committee Report on that crisis recommended the termination or limitation of the preliminary inquiry. The recommendation before us today in Bill C-75 is the more tempered vision of this Senate recommendation but, in my submission, it still goes too far. The amendments do not provide the protection promised by the full operation of preliminary inquiries and, as outlined in my Brief, does not account for the many other ways the preliminary inquiry assists the proper functioning of the criminal justice system.

Keeping in mind all of these competing concerns, we must create a solution to the problem that still remains consistent with our desire to provide a fair trial in accordance with our long-held principles. Such a solution will require another recalibration, yet one which will maintain the scales of justice as writ large in our common law and Charter. In my respectful submission the solution recommended in the amendments do not do this. Instead, this honourable committee should consider a more practical solution. A solution that lies within easy reach can be found in our civil system of justice in its procedures for civil questioning or discovery. This discovery system, for the most part, lies outside of the courts. It provides useful evidence for trial and can encourage resolution. It is also predicated on full disclosure.

By using that civil system, judicial resources, and therefore court resources, can be used in a focussed manner that stays true to the primary committal function of the preliminary inquiry, yet would permit the advancement of those vital ancillary purposes, be it preservation of evidence, building an evidential threshold case for a defence, or engaging in resolution discussions. Where there is a realistic committal issue, a preliminary will be heard by a judge. Where the matter involves one of the other viable purposes for a pre-trial questioning, the matter can be heard in a less costly forum, outside of court, in a conference room where the matter can be recorded for future use at trial. This solution provides a viable alternative to the amendments, it balances competing rights, it is mindful of court resources and it is already in use.

I thank the Chair and the other members of this honourable committee for inviting me to make submissions on an integral part of our criminal justice system.

Looking For Some Light-Hearted Law School Advice? Here’s The Ultimate Answer Courtesy of Douglas Adams

For many, the first day of law school can be overwhelming as it presents a new and unknown pathway through, what first appears to be, a maze of information. Over time, notably by even the second semester, the maze looks more manageable and no longer intimidates. By second year, the 2L student becomes adept at navigating the corners and anticipating the blind spots.  In third year, the maze is organized and colour-coded and may even shine as the 3L starts storing knowledge and skills, almost squirrel-like, to be taken out, burnished and applied in the articling year. 

This all sounds fine and even slightly poetic but when starting law school, you don’t want to wait for the happy ending, you want answers. Now. Sadly, unlike Douglas Adams and his massively metallic supercomputing thinker, Deep Thought, in the Hitchhiker’s Guide to the Galaxy, the answer is not simply 42. However, maybe we can learn something from that flight of fancy and slightly zany book. Law school, indeed the practice of law, is an adventure and like Arthur Dent, who turns out to be the ultimate hitch-hiker, what you take with you on this wild ride is what matters. 

First, what you take with you is minimal. it is important to come as you are. Indeed, like Arthur Dent, a bathrobe, metaphorically, will do. There is no law school persona to put on. Law school can change you. It can develop a sense of self by challenging your preconceived notions and view of the world. To make the best of it, keep your mind open to new experiences and new ideas. Look at things differently. Remember law school is a safe place to try on theories and discover possibilities. You can and should be creative. Remember those pan-dimensional creatures, looking like white lab mice, in Hitchhikers’ Guide – the ones who created worlds? Yup, that can be you too. 

At the same time, you need to be prepared. Ford Prefect, can offer a role model for the new law student in that regard. A towel is not just “an absorbent cloth or paper for wiping or drying.” It is a multi-purpose catch-all kind of item or your “go to” when you need just a little extra support. It is not to be thrown away as in “throw in the towel.” Success may be a state of mind but it can be tangible too, even the Bugblatter Beast of Traal knows that! Whether your “towel” is person, place or thing, don’t leave home without it.

Speaking of not leaving home without it, as this is my blog, I am going to make a pitch for the course I teach and as such is at the centre of the law school universe, and that is Criminal Law. What notto leave home without in criminal law is the Criminal Code. Yes, the Criminal Codeis my Hitchhiker’s Guide to the Galaxy and rightly so. It is chock full of important information that no criminal lawyer can do without. In perusing its enumerable sections (there are 849, which does notadd up to 42, particularly when your realize there are 45 micro-sections between ss. 487 and 488), you will discover it is also in badly need of an update. Not just the Ford Prefect kind but substantive change. This is another important law school lesson that lawyers can and should be agents of change.

Another key to law school is collaboration but without forgoing individualization. That can sum up law school and even the practice of law. We are all in it together and we need to support and nurture each other. There is a collectiveness about law. However, we do not want group think like those waiting for the Great Prophet Zarquon at Milliways, the Restaurant At The End of the Universe. We want to interact with people and learn from others but in a manner that permits us to stay in our own space and our own thoughts where we critically analyze and reformulate our own ideas.

However, each one of us could use a confidante like Ford Prefect, who can be relied upon to occasionally say “Don’t Panic” when we mean to do just that. Or a Zaphod Beeblebrox, of the “two-heads are better than one” school of thought, who may have a huge ego but is all heart. Specifically, however, everyone needs a Trillian Astra; the brilliant colleague, who can figure things out even when you are still in Deep Space 9. It may be best to stay away from the Marvins, with their constant negativity and conspiracy theories, but then again, Marvin is loyal, waiting millions of years for his friends to pop up. 

Finally, remember to have fun. It may be that you don’t realize it at the time, but enjoyment can be had by reading a really good case. Similarily, a really good argument can be entertaining. But most importantly, helping others, which essentially is what the law is all about, can be joyful. Yes, law school is about your development as a lawyer and finding your voice or unique personal identity. But it is also about taking the time to look outside of yourself and look to others who will benefit from your future knowledge and expertise. And here perhaps is the answer to Life, the Universe and Everything: paying it forward by using your new found knowledge for good by helping those who are unable to help themselves by volunteering for probono activities, student legal services or a clinical project.  Law school may be a journey through the universe and beyond, but it is also a magnificent self-discovery. So long and see you in the classroom!

Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada ​​​​​​​

The hot off the presses decision in Groia v The Law Society of Upper Canada confirms my belief that criminal law matters in all areas of law. Criminal law principles are foundational and have a reach beyond criminal case law. This is most evident in the rules of evidence where those principles do not distinguish between areas of law. Evidence is evidence no matter the context. It is the courtroom that gives the rules of evidence its perspective, not any particular area of law. There is a caveat to that proposition: some evidential rules blossom and find deeper meaning in the criminal law context where Charter rights provide a signpost to evidential rulings. In many ways, Groia borrows from the texture of criminal law, not only in the specific areas I will touch upon in this blog posting. The concept of fearless and resolute advocacy, peppered throughout the Groia decision, defines the criminal defence lawyer’s duty to her client. A client who faces the ultimate sanction of our justice system, a potential loss of liberty and societal condemnation. In some ways, the fact that Justice Moldaver, who authored the majority decision in Groia and began his litigation career as a criminal lawyer, references criminal law principles in the Groia judgment should not surprise anyone. Yet, to see not only outright usage of criminal principles but to also detect an almost metaphysical reliance on criminal law analysis brings a welcome richness to this decision. It also helps that the case is situated in a quasi-criminal law environment as a prosecution by the securities commission. A prosecution with a decidedly criminal law bent as Jay Naster started his career as a Crown prosecutor.

I need only concentrate on a few paragraphs of the decision to illustrate my premise. First, the outright usage of criminal law principles is palpable in Justice Moldaver’s finding that Groia’s conduct did not amount to incivility. In Moldaver J’s view, Groia made an honest mistake in his understanding of the rules of evidence, mistaking the Crown’s obligation to disclose relevant and material evidence with an obligation to consent to the admission of such producible evidence. Crucially, this honest mistake was sincerely held, an important factor in the analysis on whether there was a basis for Groia’s in court conduct. As Justice Moldaver suggests in paragraph 93, requiring an honest but mistaken belief as the foundational precept for the civility analysis is taken straight from the 1980 criminal law Pappajohn decision.  

Pappajohn is itself a seminal case, and a foundational one at that, taught in all first-year law school criminal law courses. It provides the foundational elements of mistake of fact in a sexual assault context - the defence of mistaken but honest belief in consent. It is the start of a long line of cases where the Supreme Court struggles with the parameters of such a defence and when such a defence should be left to the consideration of the trier of fact, known as the air of reality test. It is also an infamous case, which at the time of the trial in the late '70s caused a shock wave in Vancouver high society as wealthy business man, George Pappajohn was tried, convicted and incarcerated for the rape of a real estate agent. The case eventually led to the 1999 Ewanchuk decision where the Supreme Court made it clear that no means no and only yes means yes. On the pop culture side, the Pappajohn trial is also one of the cases dramatized in the radio series, and then later  television series, created by George Jonas(journalist) and Eddie Greenspan’s (legendary criminal defence lawyer) entitled the The Scales of Justice. When I teach Pappajohn, I bring in the script as published in the book series for the class to get a sense of the real-life drama surrounding the decision. Too often when we look at cases we forget the facts are not just a written narrative or story but are based in real life events. 

Although, Justice Dickson wrote for the dissent in Pappajohn, his framing of the defence of mistake of fact was adopted by the majority decision, authored by Justice McIntyre. It was Justice Dickson, who clarified the defence in Canada as an honest belief that need not be reasonably held as opposed to the English authority in Tolson (see pages 150 to 154 of Justice Dickson’s dissent in Pappajohn), which suggested the belief must be an honest and reasonable one. Later case law on the issue, particularly Chief Justice Lamer in Davis, emphasizes the need for the belief to be honestly or sincerely held, for the defence to cross the air of reality threshold. Reasonableness is not required but is a factor in determining the honesty of that belief. It is, in other words, part of the credibility assessment of the belief but not a controlling pre-requisite. In Groia, Justice Moldaver relies on this crucial distinction between an honest belief sincerely held and an honest and reasonable belief as a defining basis for finding Groia’s conduct as not deserving sanction (see para 92).

But that is not the only basis for this finding. The subtler reliance on criminal law principle comes as Justice Moldaver speaks of another aspect of Groia’s conduct; whether he was acting in good faith. Contrary to the dissent's interpretation of the majority’s position on this, Justice Moldaver suggests he is not conflating reasonableness with good faith. Indeed, he maintains these concepts act separate and apart. Here, Justice Moldaver relies on criminal law Charter language as he defines the concept of good faith in the same terms as the s.24(2)Grant analysis. Section 24(2) is a remedial section, triggered once the court finds a violation of a Charterright. It is a criminal law remedy as evidence can be excluded under this section on the basis of a breach that brings the administration of justice into disrepute.Grant is a sophisticated analysis that heavily relies upon societal norms and aspirations. It is a remedy that engages long-term goals of society and is firmly situated in the kind of society we want to live in as well as the kind of behaviours we will or will not tolerate as a society. It is firmly fixed in the public confidence in our justice system. Section 24(2) plays an educative role, a disciplinary role and an aspirational one. It is retrospective, in the sense it must revisit the past actions of the authorities in breaching the Charter, but it is prospective in its relief. Admittedly, after doing a couple of presentations on s. 24(2), I am attracted to the Grant analysis as I find the test to be an elegant and inspirational one. 

But back to Groia and Justice Moldaver’s pulling into the mix conceptual images from s. 24(2) in the shape of good faith. Part of the s. 24(2) analysis requires the court to assess the seriousness of the breach, in other words the seriousness of the Charter infringing conduct. In Groia-terms this can be equated to the seriousness of the alleged professional misconduct. Justice Moldaver in paragraph 93 enters into an ersatz s. 24(2) analysis as he describes good faith on a sliding scale “The more egregious the legal mistake, the less likely it will have been sincerely held, making it less likely the allegation will have been made in good faith.” This is exactly what is done in a s. 24(2) analysis. There, the court situates the police conduct on a “scale of culpability” with “inadvertent or minor violations” at one end and “wilful or reckless disregard of Charter  rights” at the other (see R v Paterson, 2017, SCCat para 43). All of this is, of course, reviewed in light of all of the circumstances of the case – in other words a contextual analysis.

Interestingly, this 24(2) like analysis intersects with the honest but mistaken legal mistake analysis undertaken by Justice Moldaver. As part of the s. 24(2) good faith assessment, the court considers whether the police were relying on an erroneous view of the law at the time of the events. This view of the law may be correct at the time but later changed through case law or it may be erroneously held through a mistaken understanding of the law (R v Vu2013, SCC para 69 & R v Duarte, 1990, SCC, para 60). However, there is an obligation on the police to be up to date on the law. They cannot rest on wilful blindness. A noted difference in the analysis is the requirement in Paterson at paragraph 44 of the majority reasons of Justice Brown that the good faith errors be reasonable. Negligence, in accordance with this standard, is not good faith and neither are unreasonable errors based on ignorance (see R v Buhay, 2003, SCC at para 59). As an aside, Justice Moldaver dissented in Paterson. In any event, this discussion must be kept in context – what Justice Moldaver is discussing is civility not competency. The line must be clearly drawn to ensure the integrity of our adversarial system and the buttressing concept of resolute advocacy.

It should finally be mentioned that at no point does Justice Moldaver reference s. 24(2) or the pertinent case law. In a contextual analysis such as this one, anything goes. Which leads me to the last point in this brief blog that obviously the Groia decision continues the Supreme Court’s predilection to contextualize. This modern approach to everything 'where context is everything' first appears in statutory interpretation principles (see Rizzo Shoes, 1990, SCC at paras 21 and 22) but has outgrown the written law to be a favoured solution to all problems. The contextual approach opens the rule of law door, which so often in the more rigid application of law is closed. Whether this open-door policy is a good one, I leave for another day but needless to say, the Supreme Court is certainly consistent. In the end, by using criminal law principles and Charter aspirations in areas not traditionally considered true criminal law, the idea of 'context is everything' is getting a large and liberal interpretation. In a very real sense, criminal law rules!

How To Navigate Through The Digital Era: A Review of Digital Evidence: A Practitioner’s Handbook

Advocacy is not simply a creature of the courtroom but is, in essence, a state of mind informed by legal principles and enhanced by strategic and tactical concerns. A skilful advocate will be able to approach each case with a tactful mindfulness, which will start from the moment the client calls to the moments after the case is decided. There are many such legendary advocates such as Clarence Darrow,G. Arthur Martin, and Eddie Greenspan. Natural talent does make a difference but truly what separates the great from the good is the desire to be continually curious about the craft. This continual renewal means being on the cutting-edge of the law. Today, such a skilful advocate melds old school advocacy with knowledge and appreciation of what’s next. What’s next, and actually already here, is technology as a legal platform. In criminal law, this means technology is not just a place people do business but a space in which people live. The key is to superimpose skilful advocacy onto the circuit board of the future. To help us successfully navigate through the digital era isDigital Evidence: A Practitioner’s Handbookby Gerald Chanand Susan Magotiaux,from the Emond’s Criminal Law Series, specially written with the technologically inclined skilful advocate in mind.

The lawyer by nature is a multi-tasker: trained to see the trial not as a linear exercise but as a multi-layered, multi-dimensional entity in which all of the moving parts of a case must be artfully molded into a workable case to be persuasively and successfully presented to the court. Throw into this delicate mix new age technology and you have, not a work of art, but a machine. Digital evidence in the courtroom re-constructs the traditional case – essentially taking a file from the Clarence Darrowinspired Inherit the Windbased on the Scopes “Monkey Trial” of 1925and plunking it down into the delightfully digital melange of Blade Runner 2049.  The Handbook appreciates the nuances of this task and is a helpful “all in one” guide for the practitioner faced with the challenge such digital cases bring. 

The practitioner bent is nicely explicit throughout the book as it continually and consistently metes out trial advice not as an afterthought to the law but as a practical outcome of it. For example, in the opening pages of the chapter on reasonable expectation of privacy, the authors remind the practitioner to focus on what was seized digitally as opposed to emphasizing the static location of the hardware. Of course, this focus on content over form just happens to be consistent with the focus of the Supreme Court in recent decisions on technology-based searches. In this way, these trial tips sharpen the law into a useable trial tool. But the Handbook does more than offer tools. Throughout the Handbook, the authors provide suggested factors to consider in dealing with the various in and out of court issues, which may arise in such cases. This attention to everyone means that the trial tools are “non-denominational” as they are useful for every player in the justice system defence, Crown, police and even judge. Essentially, the Handbook endeavours to create a virtual tool box that can be custom made for whomever has the need to create a case. Better yet, these tools are not saved into an outbox folder for view at the end of the book but reside within each discussion byte-point as the digital journey proceeds in the Handbook. 

Even if you are attracted to the Handbook purely for the tips, you will certainly read it, cover to cover, for the more traditional discussion of the various legal issues engaged by digital evidence. With a “bit to byte” approach, the Handbook is a smart guide on all of the technological dimensions of a criminal case from Part I on search and seizure, to Part II on disclosure, and finally ending in Part III on the use to be made of the evidence. These Parts divide the Handbook into three conceptual areas: the investigative stage, the pre-trial or case building stage, and concluding with the trial stage where digital technology is used both within the trial process as evidence and as part of the trial process as a tool for presenting that evidence. 

Each Part is further divided into discrete chapters. I am particularly impressed with the opening chapter on the Reasonable Expectation of Privacy in Digital Data. I agree with the authors that reasonable expectation of privacy (REP) “opens and ends the s. 8 analysis” (page 4). Actually, I would go further and suggest REP is theplace in which s. 8 resides (although that depiction may be too ‘territorial’ in aspect for some) and as such is the lens through which digital evidence must be viewed throughout any analysis, be it for legal commentary or trial use. Then there is the less esoteric but equally important chapter 7 in Part II Disclosure on Practical Constraints on Crown and Defence. This chapter is a tell all discussion of how to maneuver through disclosure undertakings, the real cost burden of giving and receiving digital disclosure and the myriad of access to justice issues resulting from the thousands of pieces of data disclosure connected to these files. This big-picture through a magnifying lens approach to digital evidence strikes the right balance between practice and principle – just what a skilful advocate needs and wants. 

Another highlight of the Handbook is the high-level discussions of technological terminology such as the “chipping” and “parsing” required to extract and copy data from a smart phone (page 168). Or the introduction to the “thumbnail” database (page 202) as an indicator someone has viewed a particular computer file. My favourite techie talk is the “Trojan Horse defence,” wherein the defence position goes “viral” by suggesting illegal computer data was parachuted onto the computer through the back door by a hacker or by the use of malicious software. 

If there is a weakness to the Handbook it comes by it honestly. Although Canadian case law does not have the high-speed energy of sci-fi movies, it does have a large and I mean a mega large pool of case law on the use and misuse of digital evidence. The downside to the book, which is not a failing of the authors, is the sheer number of cases which now engage digital evidence. In fact, the book just missed the release of the Supreme Court’s pronouncements in Marakahand Jonesand as such the book, although in sentiment is reflective of these seminal cases, cannot reference them directly. This is where perhaps the publisher might want to use some digital magic of their own by turning the book into a digitally interactive hyperlinked online e-zine that can be updateable by a click of a mouse. Perhaps it will become an App, accessible on your smart phone or iPad. 

Whatever the format, this book truly is a “how to” guide to the digital world, reminiscent of the Hitchhiker’s Guide to the Galaxy, the subtext is - read this book and “Don’t Panic.” More accurately, read this book and you will become more skilful at technological advocacy.

 

Seeing Justice Through the VR Lens

The first few 1L Criminal Law classes are dedicated to the “big picture” wherein we discuss the purpose of criminal law in the context of the criminal justice system. Unlike the other 1L doctrinal courses, criminal law is laden with context without which the doctrinal aspects would be meaningless. The context includes, but is not limited to the following: the roles and responsibilities of the Crown, defence and trial judge; respecting the trial narrative as real life situations impacting the lives of real people; trial strategy, professionalism and ethics; procedural “choices” and most importantly, the principles of fundamental justice, which permeates all of these concepts. I try to give them a sense of urgency – how vital all the pieces are to the healthy functioning of the system.

Although I like to use the puzzle piece metaphor to explain how each concept relates to one another and the incompleteness should one piece fail or be absent, in retrospect, that metaphor is too static. It fails to connect to the modern aspect, embedded as it is in technology and imagery. A conventional puzzle is too flat to express the multifarious dimensions of the justice system and the delicacy of the model we uphold. The more appropriate parallel is an interactive 3D environment that has presence, weight and texture. In such an environment, we can more fully appreciate the impact each micro-concept has on the macro-institution. This is the justice system as seen through virtual reality optics in which all the images meld together into a coherent and cohesive whole. This cohesiveness, I suggest, comes from those principles of fundamental justice as embodied in our Charter such as the presumption of innocence, fair trial, and the “specialness” of the criminal standard of proof. Of course, the Charter also supplies dissonance to the imagery as we struggle to overlay onto this reality other protected rights coming not just from the individual charged before the criminal law but also the individual who appears before it as witness. In this sense, the pursuit of justice in this VR lens takes on complex contours and new pathways.

Admittedly, this VR depiction seems a little too much for an explanation as to why the principles of fundamental justice matter in our criminal courts but visualization or depiction of the law is as important as articulation. In my working paper on “The W(D) Revolution”, I make a case for the case by showing why the essence of W(D) still matters and how it has revolutionized the way the courts view the presumption of innocence and burden of proof. I emphasize the need to strip down our trial discourse to the essentials - that assessment of the evidence must be done through the lens of those principles of fundamental justice which underline our core values as a society. We say we do this, however, the W(D) journey is also a cautionary tale, reminding us that espousing a formulaic mantra is meaningless without a true commitment to the content of W(D) and those principles the case enshrines. Without that commitment, we are not giving meaning to those values nor are we creating an image of the criminal justice system worth pursuing. We need to view the justice system through the lens of virtual reality and experience the texture of justice as we dispense it. This is why W(D) still matters and this is why teaching context is everything.

Episode 50 of the Ideablawg Podcasts on the Criminal Code of Canada: Criminal Code Reform and Section 55

Welcome to the fiftieth podcast on the Criminal Code of Canada. I started this project almost four years ago and although my output has slowed down, my commitment to providing you with some insight on every Code section has not changed. In this the fiftieth episode, I would like to generally reflect on the recent proposed changes to the Criminal Code and to specifically discuss the proposed revision to section 55 “Evidence of Overt Acts,” the subject of this podcast.

The new amendments contained in Bill C-51, which received first reading on June 6, 2017, will repeal some of the sections I have discussed in previous podcasts. These are sections which are archaic remnants of the initial 1892 Code and their deletion is welcome. In my opinion, however, repealing sections is not a substitute for badly needed reform of the Code into a readable, understandable and modern reflection of societal fundamental values. Piecemeal revision can lead to anomalous results. It can also lessen public confidence in the criminal justice system. Reform may take time but it is time well spent if the Code is one in which all citizens feel they have had an opportunity to create. I know what I am saying I have said before but, in my view, smart re-visioning of our criminal justice system is a position to be repeated.

Before we discuss section 55, I want to point out that Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, also proposes to repeal section 49, Alarming the Queen. I discussed this section in podcast episode 44, which the text of this episode can be accessed here. Fortuitously, we recently used section 49 in a 1L criminal law final exam. A nice send off to an obsolete section, in which the prohibited behaviour could easily form the basis of other charges such as causing a disturbance under s. 175.

Section 55 “Evidence of Overt Acts” rounds out our discussion of the offences falling under the heading “Prohibited Acts” pursuant to Part II Offences Against Public Order. It is not a substantive section, meaning it does not create a criminal offence. Rather the section is, as the headline promises, related to evidentiary proof but in the context of a procedural rule. The section sets out the parameters of the process required to establish an essential element of the prohibited act or actus reus of any of the enumerated offences.

Section 55 presently reads as follows:

In proceedings for an offence against any provision in section 47 or sections 49 to 53, no evidence is admissible of an overt act unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out therein.

This section will be slightly revised if Bill C-51 passes as presented. The changes are very minimal, deleting the reference to s. 49, as it is repealed, and making slight wording adjustments to make the section more readable. The import of the section remains the same and it will read as follows:

55 In proceedings for an offence against any provision in section 47 or sections 50 to 53, evidence of an overt act is not admissible unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out in the indictment.

Essentially, the section requires an “overt act” to be specified in an Indictment for any of the offences enumerated in section 55 before the court before will admit evidence of such acts at trial. This requirement to specify an overt act in the Indictment is mirrored by section 581(4) of the Criminal Code, a section relating to the form of the counts in the Indictment and the sufficiency of such counts. Subsection (4) requires that where an accused person is charged with the offences, as enumerated under s. 55, “every overt act that is to be relied upon shall be stated in the indictment.”

Although the above explains why we have this procedural/evidentiary section amongst these criminal offences, questions still remain: what exactly is an “overt act” and why is there such a special procedural concern placed on this type of act for these particular offences? These offences are sections we have already encountered in previous podcast episodes and relate to Part II offences against the public order. Section 55, however, does not refer to all offences under the Part but specifically the punishment for treason, the offence of assisting an alien enemy to leave Canada or failing to prevent treason, the offence of intimidating Parliament or the legislature, and the offence of sabotage. These are offences which directly impact our national security interests and are also offences where the modus operandi might include a conspiracy. It is the offence of conspiracy from which the concept of overt acts is most applicable. In order to examine this connection, let’s try to define an “overt act.”

The phrase “overt act” does not appear in any of the enumerated sections found in section 55 but it is found in section 46, which describes the offence of treason, as opposed to section 47, which merely sets out the punishment. The phrase is also found in section 48, another section relating to the charging limitations for treason, requiring that if the charge is based on “an overt act of treason expressed or declared by open and considered speech” the charging document or Information must set out the overt act and the words and the Information must be laid “under oath before a justice” within 6 days of the time the words were spoken. In terms of the rest of the Criminal Code, the phrase is only used in the previously mentioned section 561. See Episode 43 of these podcasts, where I discuss “overt act” as it relates to sections 46, 47 and 48. As I mentioned earlier, treason and overt acts seem to go hand in hand with conspiracy as a treasonable “overt act” for purposes of the section. The crime of conspiracy, under section 46, is therefore a “manifestation” of the intention to commit high treason or treason as required for section 46(2)(d). As I explained in that previous episode, this treatment or really clarification of an overt act as conspiracy is consistent with the original description of treason under English common law and the 1892 Criminal Code.

Before we discuss the phrase itself, now that we wandered through the Criminal Code looking for an overt act, let’s wander a little bit off the path to find where else the phrase “overt act” appears in legislation. Interestingly, and importantly if you are an agriculturalist in the Maritimes, “overt acts” are referenced in the 1990 Newfoundland Poultry and Poultry Products Act, RSNL 1990, the repealed Prince Edward Island Poultry and Poultry Products Act and the repealed and re-enacted Agricultural Development Act of New Brunswick. In the Newfoundland statute, “overt act” is part of the definition of “ship”, “shipping”, “transport” and “transporting” which are defined as the “overt act of a person leading to the movement” of poultry and poultry products by certain specified means or conveyances. Certainly, not the kind of “overt act” contemplated under s. 55.

Now to the definition. An “overt act” is outward behaviour, which consists of readily ascertainable actions. A good example would be the description of the overt act under section 48 as “expressed or declared by open and considered speech.” We can find other examples from three World War One treason cases. In the first case of R v Snyder (1915), 24 C.C.C. 101 (ONCA), the overt act of treason consisted of the acts of the accused in helping people leave Canada to fight with the “enemy” during World War One such as bringing the people to a farm for purposes of then sending them overseas. Rex v Bleiler, a 1917 decision from the then Alberta Supreme Court (Appellate Division), offers another example of overt acts consisting of attempting to sell a “certain device” to the German Emperor or his agents. The case, sadly, never explains exactly what this device is but the overt acts involved the accused writing letters, recommending the device and offering it for purchase, to the German Ambassador to the United States. In these letters, the accused professes his loyalty to Germany and requests the details of the purchase be done secretly. The final case in the trilogy, is from 1918 decision of the Quebec Court of Appeal in The King v Schaefer, a case I referred to previously in the episode 43 podcast on treason. Of interest is the dissenting decision. The facts of the case suggest the cruel effects of wartime prejudices and the use of treason as punishment for ethnic origin and community loyalties rather than for the protection of the public. The facts are best read as excerpted from the dissent of Mr. Justice Lavergne as follows:

1 Israel Schaefer is a Jew who came to reside in Canada some twenty years ago or more. In the first years of his residence here, he became a British subject being naturalized under the Canadian statutes. In October 1914, he had a family of numerous children brought up here. His principal business since many years was to sell transportation tickets, both steamship and railway tickets. He was known as an industrious and very respectable citizen.
2 In October 1914, he sold transportation tickets from Canada to a port in Bulgaria. Bulgaria, at that time, was not at war with any other part of the British Empire. The number of tickets sold is alleged to have been ten. In addition he is alleged to have provided these ten people with documents to further transportation to the boundary line between Roumania and Austria-Hungary. The ten tickets were not all sold on the same date, but at different dates, in October 1914. This was done by Schaefer in the course of his ordinary business...
4 These people or most of them had come from Bukovina, which country formed part of Roumania and part of Austria. Most of these people, if not all of them, spoke Roumanian Language.
5 Schaefer was only charged with assisting the public enemy, but was only charged with assisting ten persons to leave Canada by selling them steamship tickets to a country not at war with Great Britain.
6 He is also charged with counselling these people to speak the Roumanian language. Another charge of furnishing these people monies was not pressed, was virtually abandoned, no attempt whatever was made to establish that allegation. The persons to whom Schaefer sold tickets having been resident in Canada for a few years were in the position of alien amis, and presumed to have paid local allegiance to our Sovereign. The fact that they were not arrested shows that the authorities did not regard them as offenders.

It was the opinion of the dissenting justice in the case that as the overt acts alleged were not connected to “any hostile intention or action,” the charge of treason must fail. Further, the dissent noted that the Indictment set out the acts of the people who left the country as assisting the enemy, not Schaefer, and there was no allegation of conspiracy. Additionally, there was no evidence these people in any way assisted the enemy other than they spoke the language and wanted to go home. Thus, there could be no inference that the overt act outlined in the Indictment manifested an intention for assisting the enemy or any other such treasonable acts. The majority disagreed and upheld the conviction for treason. In their view the Indictment sufficiently described the overt acts of treason being a treasonable design to assist the enemy and the overt acts in furtherance of it. This case presents quite a differing view of the overt acts and highlights the impact of contextual societal events can have on decision-making.

There are several cases, more recent ones, on the sufficiency of counts in an Indictment and specifically, in the case of a conspiracy charge. Certainly, section 55 could engage a sufficiency argument in the appropriate case and therefore this section, although only related to a few offences against the public order, has a relationship to other procedural sections in the Code. We will get to those sections as we continue our journey through the Criminal Code.

 

 

 

 

On First Looking At the New Code Amendments (with thanks to Keats for the title)

In March of 2017, the federal government renewed its commitment to modernize the Criminal Code by tabling legislation to repeal the so-called “Zombie” laws – a term coined by Professor Peter Sankoff to denote those criminal laws that are the “walking dead” of the Criminal Code – still on the books but deemed unconstitutional. Although a step in the right direction, this announcement seemed like a “no brainer.” It also just happens to be consistent with the mandate letter, sent by the Prime Minister to the Minster of Justice, admonishing the Minister to uphold the Constitution and respect the Charter.

Besides repealing the unconstitutional sections, the list of problems with the Criminal Code remains. This list is, well, longer than the Code should you desire to place each page side by side. With well over 849 sections (considering the “accordion” sections whereby the government folded in between sections, other sections, such as the 33 sections residing between s. 487 and s. 488: for further information read my blog entitled The Infinite Lists of The Law), the Code is a statutory behemoth, a virtual cornucopia of delights including archaic laws such as the rarely used forcible detainer at s. 72(2)) jumbled with brand new crimes, once considered regulatory offences, such as the new offence (circa 2014) of selling unpackaged stamp-less tobacco products under s. 121.1.

Recently, however, the government appears to be taking another step toward the modern by unveiling their revisionist vision through some new amendments to Code sections. This came about serendipitously as the government needed to fulfill an election promise of decriminalizing the use of marijuana. To do this, the government realized they needed to not only remove laws but to fix them. So as part of the modernization of our drug laws, the government revised the Criminal Code sections on impaired driving (sections 253 to 259), and while they were in the area anyway, to freshen up the other driving offences, namely dangerous driving under s. 249, with a “new look.”

As soon as these legislative changes were tabled in Parliament, everyone brought out the magnifying glasses. Each word of the proposed legislation, newly delivered, has been scrutinized. Mainly, the focus is on the impaired driving amendments, which, quite frankly, look a little Charter unfriendly, despite the stern warning of that mandate letter to be respectful. But leaving the Charter aside, which it appears the government may be doing with these sections, let us not consider the minutiae of this Bill, rather let us consider the general efficacy of the government’s approach.

Putting away our magnifiers then, we should consider the “big picture,” and ask whether the federal government is truly modernizing the criminal law and bringing it kicking and screaming into the 21st Century. It would appear, in fact, at least with the impaired driving amendments, that this is not what is happening. It would appear the government is instead merely back filling; reacting to weaknesses in the old legislation by plugging up the holes, like the little Dutch boy, to ensure the dike doesn’t leak. The changes are therefore reactive, not proactive. They are backward looking, not forward facing. The drafting of these new sections does not assist us in walking toward the future. The sections are prolix and dense. Furthermore, the amendments do not send the message of a new Canada which is tolerant, diverse and progressive. The sections download onto the citizen the burden of ensuring that their conduct, even after they are no longer driving, wherever they may be, whatever their emotional or physical state may be, is reasonable. Whatever that means. At the same time, the new sections relieve the state of the burden of justifying the use of its authority to investigate. Even without glasses, it seems the revisions are not very 21st century.

Turning to the other changes, quietly placed in the Bill is the new Part VIII.1 (which by the way is still perpetuating the archaic use of Roman Numerals) entitled “Offences Relating To Conveyances”. At first blush, one has visions of property offences relating to land titles. On a closer look, the “recognition and declaration” (the only other legislation this kind of section is found is in the Alberta Bill of Rights, RSA, 2000) in section 320.12 advises us what we already were told by Justice Cory in Hundal that licensing, as in operating a “conveyance,” is a privilege and the rules of the road, so to speak, must be observed. Section 320.11 defines “conveyance” as a motor vehicle, vessel, aircraft or railway equipment. These conveyances were also subject of the now to be replaced dangerous operation section 249. Section 320.13, as the new dangerous operation section, creates an offence where a conveyance is operated, having regard to all of the circumstances, dangerous to the public. The soon-to-be-replaced s. 249 is similarly worded, although it gives a clearer description of what those circumstances could be, such as “the nature, condition and use of the place” of operation.

After this closer look, it becomes clear that this “new” Part is not really new at all but merely a short hand version of the old.  The new changes are not a change but a touch up, a change in nomenclature, maybe even a nod to the past case law. Again, what is the impetus of this change? The decriminalization of marijuana, which requires a change to the impaired driving laws, which requires the government to react to previous case law by filling in legislative gaps, which requires the government to change all of the driving offences, which causes the government to show they are modernizing the Code by simplifying the sections.

What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

 

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

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

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

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

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

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

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

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

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

Also posted on the Ablawg.ca website.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Praise of the Passionate Lawyer

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

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

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

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

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

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

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

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

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

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

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

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

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

                      (a) the nature of the force or threat;

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal fault by reason of intoxication

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

  Application

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

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

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

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

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

 

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

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

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

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

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

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

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

Preventing breach of peace

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

Arrest for breach of peace

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

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

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

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

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

 

 

 

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

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

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

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

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

 (a) to prevent the commission of an offence

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

 

My #clawbies2014 Nomination 2014: CanLII Connects

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

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

 Bravo to CanLII and to the dedicated CanLII Connects Community!

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

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

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

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

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

The Assisted Suicide Debate: A Legal Primer

Sometime ago, I wrote three blogs on the assisted suicide debate in light of the Rodriguez case and the soon to be argued before the Supreme Court of Canada, Carter case. In light of the hearing scheduled for Wednesday of this week, I am gathering these prior postings below as a primer to the issue and including a fourth blog relating to the Criminal Code prohibition of consenting to one's own death:

Whose Life Is This Anyway? Part One of the Right To Die Debate in Canada

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

Assisted Suicide Appeal - the Carter case

Section 14 of the Criminal Code - Consenting To Death

Section 24 - Attempting the Impossible: Episode 29 of the Ideablawg Podcasts on the Criminal Code of Canada

In the previous podcast we tackled the possibilities but in this podcast we will discuss the impossibilities. Section 24 of the Criminal Code pertains to attempts to commit an offence in an “attempt” to clarify what it means under our criminal law to commit an attempt of a crime. The difficulty with an attempt crime can be traced back to the essential elements of a crime and to the reluctance of the criminal law to attach liability to “evil thoughts.” Thus, in criminal law is the requirement that for a crime to be committed there must be both a prohibited act or actus reus and a criminal intent or mens rea as highlighted by the Latin maxim actus non facit reum, nisi mens sit rea, which translates to “there is no guilty act, without a guilty mind.” Not only must these two elements be present for a crime but they must also coincide.

A good example is the entertaining 1968 UK case of Fagan v Metropolitan Police Force in which Fagan accidentally rolled onto a police officer’s foot but once he realized he had done so, he swore at the police officer and turned off his car. After a few agonizing moments, Fagan turned on his car and rolled off of the officer’s foot. Fagan was charged and convicted of assault police. On appeal, Fagan tried to argue that there was no assault in law as his criminal intent or mens rea did not manifest itself until after the prohibited act or actus reus of rolling onto the officer’s foot. The House of Lords found this argument too narrow and explained that the prohibited act can be a continuing action and indeed in Fagan’s case they found that from the time Fagan rolled onto the foot to the time he subsequently rolled off was one continuing transaction, during which  Fagan formed the criminal intent.

So what does this great case narrative have to do with attempts? In the case of attempts it becomes very difficult to know when the actus reus and the mens rea coincide as the prohibited act is a subtle one and falls short of the actual criminal act. Indeed, attempts are known as incomplete or inchoate (not fully formed) crimes. There are other crimes, which fall under this incomplete or unfulfilled category such as counseling to commit a crime not committed under s. 464 and conspiracy under s. 465. The issue then is identifying when an act of attempt occurs as it is not the completed act and yet it is also not the mere thinking of the act as that would criminalize mere evil intentions. Thus, an attempt takes place before the completion of the intended crime but the Courts must decide at what point the attempt is complete and criminal liability will attach. Something more is required and section 24 instructs us on how that “something more” is determined in a criminal case.

Section 24 has two subsections and reads as follows:

24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

Other than s. 463, which we will get to much much later and deals with the punishment for an attempt, s. 24 is the only section in the Code dealing with attempts. The difficulty is that this section doesn’t exactly tell us what it means to commit an attempt of an offence. The section does however give some legal clues, which the courts have then used together with common law interpretations of attempts to fill in the doctrinal meaning of “attempt.” From subsection (2), and from case law, we can say that an attempt is complete when the accused person’s actions go beyond “mere preparation.” This usually means the next step done with the intent to commit the crime, after preparation is complete. There also must be proximity in time between the act and the intention.

Who decides when preparation is complete? Subsection 2 tells us that it is the trial judge, who determines this issue as a question of law. Therefore, if a jury tries the matter, the trial judge will instruct the jury on this issue. The jury, as triers of fact, will then apply the legal principles to the facts to determine if the accused is guilty or not guilty of the attempt.

Not only does the prohibited act for an attempt require specific findings based in law but the intention required for an attempt is specific as well. The mens rea required for an attempt is the mens rea required for the completed offence. But in the case of attempt murder, the intention required is the highest level of subjective mens rea under s.229(a)(i), intention to kill, and not the slightly relaxed intention under s. 229(a)(ii).

I am now going to add my own narrative to this issue by relating the circumstances of the first case I did as a lawyer. I was called to the Bar in March and within the week, I was representing a client charged with an attempt break and enter. Certainly, one can envision an attempt break and enter – for example here are the facts from the 1986 Alberta Court of Appeal Gochanour case wherein a homeowner was awakened by noises at her living room window and when she looked out the window she saw the exterior screen was ripped open and someone was running from her residence. In my client’s case, the allegation was that the client, who was under the influence of alcohol at the time, was found in a fairly upscale neighbourhood with a stick in his hand. The police found scratches around the lock of a front door of a nearby house. The client was discharged at the preliminary hearing but as we can see from s.24(1), not on the basis of impossibility – as it is impossible to open a locked door with a stick – but because a properly instructed jury acting reasonably could find no evidence that the client used the stick for the purpose of committing a break and enter of a residence.

Impossibility is therefore not a defence to an attempt and therefore one cannot argue that because the completed offence was not possible, the accused must be acquitted of the attempt to commit the impossible offence. This proposition holds true whether or not the offence was legally or factually possible. But, as we will discover this does not necessarily hold true, for practical purposes, for every charge.

Let me wrap up the discussion of section 24 by offering some thought-provoking examples. A pickpocket who attempts to steal from an empty pocket is still liable to be charged for an attempt theft. Although this is legally fair, the question may be is it morally right? Should someone in that position face a possible criminal record and/or jail?

Here are some offences in which one may not be able to be charged with an attempt – even though according to s. 24 charges are possible. It is difficult to conceive of an attempt to commit a criminal negligence under s.219 – although this may be a too simplistic conundrum - it is hard to imagine how someone can attempt to be negligent. It is also difficult to conceive an attempt to be found in a common bawdy house according to s. 201(2)(a). How can someone attempt to be found in a place as required by the section? We can also apply this concept outside of the Criminal Code and to the quasi-criminal regulatory field. Can someone attempt to speed? Can someone attempt to commit an absolute liability offence, which requires no intention at all? Or in the regulatory field, can the defence argue that attempt charges are indeed not possible as they would be inconsistent with the spirit and purpose of those regulatory acts or that pursuant to, the enabling provincial statutes such a concept is inconsistent with the Act. For example, the defence could rely on s. 3 of the Provincial Offences Procedure Act or for federal acts s. 5 of the Contraventions Act, which provide for the application of the Criminal Code to regulatory offences as long as such sections are not inconsistent with the regulatory Acts. Of course, the contrary argument might be that those regulatory statutes are procedural while the concept of an attempt is a substantive issue. What has been made clear by case law is that someone cannot be charged with an attempt to commit an incomplete crime such as mentioned earlier in this podcast – counseling to commit a crime not completed and a conspiracy. So in the end, perhaps there is a defence to the impossible!

 

 

Episode 29 of the Ideablawg Podcast on the Criminal Code of Canada - Section 24 - Attempting the Impossible