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!

Brief Submitted to the House of Commons Standing Committee on Justice and Human Rights Concerning Bill C-75

On September 24, I will be appearing before the Standing Committee on Justice and Human Rights to present my recommendations on revision of the amendments to the Criminal Code in Bill C-75 relating to preliminary inquiries. Here is an excerpt of that Brief:

Introduction

Bill C-75 introduces a number of proposed changes to the Criminal Code. There are 300 pages of amendments covering a broad range of procedural, evidential, and substantive issues. Some of the amendments will significantly change the criminal justice system. None more than the proposed changes to the preliminary inquiry. This Brief will outline the weaknesses inherent in such change and a recommendation for a better, more robust and balanced approach. 

The Proposed Amendment

Bill C-75, in accordance with the summary attached to the Bill, proposes to “restrict the availability of a preliminary inquiry to offences punishable by imprisonment for life and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry.” The amendments will abolish the preliminary inquiry for all but those offences attracting a maximum punishment of life imprisonment. Those offences range from murder to criminal negligence causing death. 

For example, a preliminary inquiry may be heard on a break and enter into a dwelling house[1]but not for a break and enter into commercial premises.[2]A preliminary inquiry will also not be permitted for an attempt break and enter into a dwelling house as the maximum punishment is 14 years imprisonment.[3]

Although prior to the proposed amendments, a preliminary inquiry was upon request of the accused or prosecutor, with the new amendments, the judge hearing the inquiry will have broad discretion to regulate the inquiry. Under the proposed changes to s. 537(1)(i), the hearing judge may do so “in any way that appears to the justice to be desirable, including to promote a fair and expeditious inquiry.” Specifically, under s. 537(1.01), the inquiry judge may “limit the scope of the preliminary inquiry to specific issues and limit the witnesses to be heard on these issues.” Through application of the new amendment to s. 540(1)(a), the inquiry judge may also restrict the defence’s cross examination of a witness called to testify by the prosecution. 

Background to the Role of the Preliminary Inquiry in Our Criminal Justice System

For years the efficacy of the preliminary inquiry has been questioned, studied and discussed by lawyers, government officials, and the courts. Despite debate and amendments, the preliminary inquiry, at its core, exists as the legislative “shield” between the accused and the Crown, protecting, as Justice Estey explains in the 1984 majority decision of Skogman v The Queen,[4]“the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” Despite this sentiment, both levels of government and the courts have questioned the efficacy of the preliminary inquiry seeing little value in the procedure and only costs to the efficient and effective administration of justice. 

The preliminary inquiry discussion started benignly with the call for the abolition of the grand jury system; an English common law procedure requiring a panel of 24 jurors to evaluate the charges to determine if the case should proceed to an Indictment.[5]Eventually, the grand jury system was abolished by attrition as individual provinces simply stopped using the practice. Ironically, the principle argument advanced in favour of eliminating the grand jury inquiry was the existence of the preliminary inquiry as the true procedural safeguard against the power of the state. 

The main purpose of the preliminary inquiry is the committal function. To determine this, a preliminary inquiry justice considers whether or not there is sufficient evidence to commit the accused to trial pursuant to s. 548 of the Criminal Code.If the evidence is insufficient for committal, the accused will be discharged. 

Although the test requires a fairly low evidential threshold, there are cogent illustrations of the impact of this discharge power. An example is found in the case of Susan Nelles, who was the pediatric nurse on duty when a number of babies died in the cardiac ward of the Hospital for Sick Kids in the early 1980s. She was ultimately charged with first-degree murder of four children by allegedly injecting them with lethal doses of the drug digoxin. The subsequent preliminary inquiry revealed a complete lack of evidence for the charge, resulting not only in her discharge but also in an inquiry into the deaths.[6]In this way, a preliminary inquiry protects an accused from the pernicious power of the state and can also provide a forum safe from the vagaries of public opinion.

Nevertheless, according to Mr. Justice Estey in Skogman, the preliminary inquiry serves an additional purpose, derived through usage, of “a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present.”[7]It is this ancillary purpose, grounded in the right of an accused to make full answer and defence, which garners the most criticism and provides support for abolition. This argument suggests that with the advent of the Charterand the stringent disclosure requirements of Stinchcombe,[8]the preliminary inquiry is no longer a necessary discovery tool.[9]This reassessment did indeed happen. In October of 2001, the then Liberal government proposed, as part of a miscellany of criminal law amendments, significant changes to the preliminary inquiry process in the omnibus Bill C-15. The then Justice Minister Anne McLellan, in her presentation to the House upon second reading of the Bill, described the revisions as criminal procedure reform, spearheaded by the provinces, in an effort to:

simplify trial procedure, modernize the criminal justice system and enhance its efficiency through the increased use of technology, better protect victims and witnesses in criminal trials, and provide speedy trials in accordance with charter requirements. We are trying to bring criminal procedure into the 21st century. This phase reflects our efforts to modernize our procedure without in any way reducing the measure of justice provided by the system.[10]

Madame Justice Deschamps, in her majority decision in Regina vS.J.L.,[11]considered these amendments. According to Justice Deschamps, the ancillary function of the preliminary as a discovery tool “has lost much of its relevance”[12]due to enhanced disclosure requirements. Justice Deschamps pointed to the new procedures as clearly illustrating the trend “toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures.”[13]

At the same time as this movement away from the preliminary inquiry as a disclosure mechanism, we see a rise of legal rules requiring the accused person to provide an evidential foundation for certain applications and defences before they can advance these issues at trial.[14]

Why the Amendment Needs Revision

It is this last phrase - “better adapted to the needs of the parties, not the imposition of more inflexible procedures” – that requires further attention. Added to this sentiment is the need to ensure procedures do not impede full answer and defence to the detriment of the presumption of innocence, fair trial concerns, and the overall integrity of the justice system. Without fair and just procedures in place, the potential for miscarriages of justice increase. 

The proposed amendments go further than the previous changes to create an inflexible process, which fails to account for the original reason for the preliminary inquiry as a protective mechanism and fails to respond to the new realities of courtroom evidentiary requirements. This double concern results in amendments that detract from the integrity of the justice system instead of promoting it. 

For instance, the preliminary inquiry can be an indispensable tool to establish the required evidential foundation for threshold issues, such as admissibility of evidence, providing the basis for a legal defence or setting the stage for a Charterapplication.[15]Thus, the notion that the preliminary inquiry lacks utility and interferes with the administration of justice fails to recognize the access to justice issues resulting from the inquiry’s demise. In order for the counsel to “appreciate the case made against” the accused, counsel has to have an opportunity to see it.[16]

The concept that the preliminary inquiry weighs down the system and interferes with trial court efficiency is a misnomer. In fact, statistically, the preliminary inquiry works. In a timely 2013 article entitled Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations,[17]University of Ottawa criminologist Cheryl Webster, who has done extensive researchon court reform for the federal government, and retired Department of Justice counsel Howard Bebbington, found value in the preliminary inquiry process as, based on an empirical study, it did positively impact scarce court resources. As referenced in the article, a preliminary inquiry can identify weakness in a case, which may assist in resolution of the file or identify and delineate trial issues thereby shortening the process. In the same way, a preliminary inquiry can also assist in the release of an in custody accused as a weaker case can result in a successful bail application. Additionally, the preliminary hearing can assist either the prosecution or the defence in preserving evidence for admission at trial. 

Further, theview that the preliminary inquiry, as a committal and disclosure forum, can be adequately substituted by prosecutorial discretion and full disclosure fails to appreciate the importance of the inquiry as a forum providing the oversight of a fair and impartial member of the judiciary. Such judicial oversight is a cornerstone of our justice system. Moreover, in Regina v Nur,[18]the then Chief Justice McLachlin cautions against substituting prosecutorial discretion for judicial decision making, particularly in the adversarial context. This would, in the words of the Chief Justice in Nur, “create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review.”[19]Additionally, although Stinchcombehas set high disclosure expectations, disclosure is not a static concept but continues throughout the case. Disclosure requests are often informed by the preliminary inquiry process, which can actually result in trial efficiencies. 

Finally, to delineate between offences based on punishment fails to acknowledge the deeply personal impact an indictable charge can have on the dignity and self-worth of an individual, particularly where there may be insufficient evidence for that matter to go to trial. The prosecution office does not have the resources to comb through the many files to determine whether evidential sufficiency nor do they have the appropriate oversight function to do so. 

A more meaningful approach would include a real assessment of the advantages and disadvantages of the inquiry process. We must be open to looking at other ways to retain the safeguards presently built into the preliminary inquiry process. For instance, where committal is not in issue, we may find a useful court alternative in the civil discovery procedures, which permits a less formal and less costly forum for the questioning of parties after full disclosure of documents. With an informed and thoughtful discourse on the issue, a more flexible approach could, and should, be found to save the preliminary inquiry from this premature legislative demise. 

Recommendations

 That the proposed amendments be revised to consider the following:

 1. To retain the preliminary inquiry process for those offences where committal is in issue;

 2. For those cases where committal is not in issue, to utilize a modified civil form of discovery procedures, which would permit questioning to occur outside of the court process in a less costly and more efficient atmosphere.[20]

This proposal will take less judicial resources, less time and relieve courts yet still provide the protection envisioned by the original committal process.

Conclusion

Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. 

Specifically, change within the criminal justice system cannot be done in the name of efficiency only. Efficiency is not what we want from our justice system. That is not what the Jordan[21]and Cody[22]decisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about. The goal should be to enhance the criminal justice system while preserving the protections of those whose liberty is at risk.

[1]See section 348(1)(d) of the Criminal Code.

[2]See section 348(1)(e) of the Criminal Code.

[3]See section 463(a) of the Criminal Code.

[4][1984] 2 SCR 93 at 105 [Skogman].

[5]See Parliament of the Dominion of Canada, Sessional Papers, No 66 (1891)Volume17at 7-69.

[6]See Ontario, Ministry of the Attorney General, Royal Commission of Inquiry into Certain Deaths at the Hospital for Sick Children and Related Matters, Report of the Royal Commission of Inquiry Into Certain Deaths at the Hospital for Sick Children and Related Matters, by the Honourable Mr. Justice Grange, (Toronto, 1983. 

[7]Supranote 4 at105.

[8][1991] 3 SCR 326.

[9]See Re Regina and Arviv(1985), 19 CCC (3d) 395 (ONCA), G A Martin JA at para 31; R v O’Connor, [1995] 4 SCR 411,L'Heureux-Dubé J at paras 170 – 171.

[10]“Criminal Law Amendment Act, 2001”, 2ndreading, House of Commons Debates, 37-1, No 54 (May 3, 2001) at 1620 (Hon Anne McLellan).

[11][2009] 1 SCR 426.

[12]Ibid at para 23.

[13]Ibidat para 24.

[14]See e.g. R v Downey, [1992] 2 SCR 10 as it relates to the evidential burden on the accused to rebut presumptions; R v O’Connor, [1995] 4 SCR 411 as it relates to s. 276 applications; R v Davis, [1999] 3 SCR 759 as it relates to the air of reality test in raising honest but mistaken belief in consent; R v Ruzic, [2001] 1 SCR 68 as it relates to duress; Rv Cinous, [2002] 2 SCR 3 as it relates to self-defence; R v Pappas, [2013] 3 SCR 452 as it relates to provocation; R v Fontaine, [2004] 1 SCR 702 as it relates to mental disorder.

[15]Ibid

[16]Supraat note 4.

[17]Cheryl Marie Webster & Howard H. Bebbington, "Why Re-open the Debate on the Preliminary Inquiry? Some Preliminary Empirical Observations" (2013) 4:55 Can J Corrat 513-532.

[18]2015 SCC 15.

[19]Ibidat para 94.

[20]See e.g. Rule 31 of the Ontario Rules of Civil ProcedureRRO, 1990, Reg 194 and Part 5 of the Alberta Rules of Court, AR 124/2010.

[21]2016 SCC 27.

[22]2017 SCC 31.

A Fine Balance: Sentencing Suter in the Supreme Court of Canada (Cross posted from ABlawg @ https://ablawg.ca/2018/07/19/a-fine-balance-sentencing-suter-in-the-supreme-court-of-canada/)

Sentencing, Chief Justice Lamer tells us in R v M (CA), 1996 CanLII 230,[1996] 1 SCR 500, atparagraph 91, is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” This sentiment neatly encapsulates all that is sentencing: an ephemeral yet earthy task in which the sentencing judge envelopes themself in a venture engaging both heart and mind. It is a “delicate” process, not heavy-handed, which requires a deft understanding of the human condition within the clarity of legal rules and principles. It is an art, not a science, meaning it is not a base computation or a tallying up of factors given pre-determined weight. Art also suggests artistic freedom and the discretionary nature we nurture in the sentencing process. But it is a determination statutorily mandated with well-defined rules and principles. There is wriggle room but just as we must stay within our lanes while driving, the sentencing judge must not over-correct or act erratically in imposing sentence. There are parameters. Some are, as indicated, statutory, as the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1of the Criminal Code). Other parameters arise from the profound sense of community that envelopes us when a fellow member breaks our laws – the laws that reflect our fundamental values. We feel the impact of rule-breakers, but we also feel their angst. We all know, to some degree, we too could be similarly situated, both as victim or offender. It is at this tipping point where the sentencing judge’s task becomes even more delicate as it searches for the fair and just balancing of all which is required to impose a fit and appropriate sentence tailored to the circumstances of the offence and the background of the offender. It is this delicate or fine balancing which is at the core of the myriad of issues arising in the newest Supreme Court sentencing decision in R v Suter2018 SCC 34

True to Justice Moldaver’s view, writing on behalf of the majority in Suter, that sentencing is a “highly individualized process” (para 4), the facts in Suterare highly unusual and particularly tragic. Mr. Suter entered a plea of guilty to a charge of failing or refusing to comply with a demand to provide a breath sample pursuant to s. 254(5) of the Criminal Code. A young child was killed when the vehicle Mr. Suter was operating crashed into a restaurant’s outdoor patio where the child and his family were enjoying a family meal. As a death occurred, the maximum punishment for the refusal to provide a breath sample was increased to life imprisonment under s. 255(3.2). However, the sentencing judge accepted Mr. Suter was not impaired by alcohol at the time of the incident. Indeed, the events leading to the incident involved a highly charged emotional event in which Mr. Suter and his spouse were arguing in the vehicle. Moreover, Mr. Suter’s refusal to provide a breath sample occurred after he received, incorrectly, legal advice to refuse. The fatality was widely publicized and Mr. Suter was a victim of a disturbing and brutal form of vigilante justice (paras 1-3). 

With this unique and troubling fact situation, the sentencing judge crafted a sentence seemingly far below the norm for the offence by imposing a term of four months incarceration with a 30-month driving prohibition. The Crown appealed the sentence to the Alberta Court of Appeal resulting in a substantial increase to the sentence to 26 months incarceration. Leave to appeal to the Supreme Court was granted. Unusually, the majority of the Supreme Court found both the sentencing judge and the court of appeal were in error (paras 5-6), resulting in the Supreme Court re-sentencing Suter (para 5). In the majority’s view, a term of 15 to 18 months incarceration was appropriate (para 103). However, as re-incarceration would cause undue hardship, it was “in the interests of justice” to impose a sentence of time served, amounting to 10 and a half months incarceration (para 103). The sole dissent of Mr. Justice Gascon found the sentencing judge imposed a fit and appropriate sentence and committed no error in law (para 109). He too allowed the appeal in part but restored the original sentence. Both the majority and the dissent upheld the sentencing judge’s imposition of a 30-month driving prohibition (paras 24, 104 & 202). 

With these facts firmly in mind, the issues arising in the case are as unique as the facts and the ultimate outcome. The issues do not arise from the facts but flow from them. There is a difference. In appellate advocacy, the appellate lawyer combs through the reasons, issue spotting and identifying arguable points based on knowledge of the types of appellate issues, which regularly arise in an appeal. For instance, are there grounds for an unreasonable verdict? Did the trial judge reverse the burden of proof in convicting the offender? These are just a couple examples of the specific appellate issues arising from a case. This is not to say that there may not be identifiable non-appellate type issues, such as errors involving substantive elements of an offence, but again those too would be easily spotted and seen to be arising from the facts. In a parallel manner, the appellate decisions based on these grounds swing from one issue to the next. Uniquely, in Suter, the issues flow and are not uniquely identifiable. There is no issue spotting as the legal issues move steadily and continuously resulting in the sensation that the Supreme Court’s treatment of this appeal flow. 

On this basis, setting out the myriad swirling of issues flowing from this decision is no easy task. Identification is also encumbered by the presence of a vocal dissent. In any event, on a meta-view of the decision, the first bundle of issues directly flow from the sentencing of Mr. Suter. One such point of discussion is on the use of vigilante justice, also characterized as a collateral consequence, as a mitigating factor in the sentencing balancing exercise. In Suter, the sentencing judge relied upon the incident in mitigation of sentence while the Court of Appeal found the judge erred in doing so. Both the majority and dissent in Suter agree that vigilante justice, as a non-state collateral consequence, was a mitigating factor to be balanced with all other considerations in arriving at a fit sentence. Justice Moldaver, however, restricted the use of such a collateral consequence to prevent “legitimizing” such illegal behaviour by accepting it as part of a legitimate legal process (para 58). Justice Gascon found the sentencing judge properly balanced the incident in arriving at a fit and appropriate sentence (paras 105, 109, 113-114 & 150).

The issue of the effect of Suter’s quasi-mistake of law can also be identified in this first sequence. I use the descriptor ‘quasi,’ meaning in this context, “apparently but not really” not for pejorative reasons but to emphasize what is at the root of the different world views between the majority and the dissent on this point of law. Neither Justice Moldaver nor Justice Gascon clearly and cogently describe what mistake of law truly is in legal terms. To be sure they discuss around the concept and drop hints, some large hints, of what their working definitions are but the reader is never entirely certain from where each position is starting. Without knowing the legal principles around this legal construct, it is the justification for the ultimate conclusion that becomes the legal construction of mistake of law. This serves to reinforce the feeling that this decision flows in a non-traditional legal judgment manner. Instead of starting with what mistake of law is in legal terms, involving academic scholarship (Glanville Williams comes to mind) and case law (mistake of law versus mistake of fact, colour of right and officially induced error have a large body of case law discussing the substantive issues) including a statutory analysis (s. 19, albeit there is a sparse discussion of this in the dissent), the Court presumes the principles and relies on the justification or their interpretation of whatever legal status they have given the term. Justice Gascon does come closer by challenging Justice Moldaver for this lack of a principled approach (para 125) but does nothing concrete to reverse the time machine and go back to the essentials of what mistake of law is in light of legal principles (paras 125 to 128). Instead, Justice Gascon fashions a template of his own in paragraph 128, in which he creates a sliding scale of blameworthiness based on a range of knowledge that could be attributed to Suter. Thus, the case authority discussion is derailed by the Court not focussing on the issues and instead allowing their decision to be pulled by the current of reasoning, justification, and the issue-spotting of errors found in one another’s reasons. 

Context is one reason why neither the majority nor the dissent gives clear direction on the mistake of law. This mistake of law, based in Suter’s reliance on bad legal advice to not provide a breath sample, is only notionally acting as a defence in order to provide mitigation of sentence. It is not acting as a defence per se. The slurring of the legal meaning of mistake of law is understandable considering the focus is not on the mistake, as operating as a defence impacting guilt or innocence, but as a mitigating factor on sentence to be balanced with all of the other sentencing considerations. Unfortunately, by not approaching the issue in a principled fashion, by allowing the reasoning to be the de facto substitute for those principles, we are never clear as to when and how mistake of law can be used on sentencing generally. The Supreme Court, as the final arbiter of all that is law in Canada, has not given us rules to live by or even rules to apply. 

The analysis of the mistake of law issue is an important one as it provides the dominant mitigating factor on sentence. Without a clear indication of the basis of this mitigation, the balancing is tainted, and the sentence imposed is rendered unfit. Using incomplete defences, which would not amount to a full defence to the charge, in mitigation of sentence is appropriate. This was not disputed in Suter (para 64 of majority judgment and para 125 of dissent and see dissent of Justice Gonthier in R v Pontes1995 CanLII 61 (SCC), [1995] 3 S.C.R. 44 at paras 75 and 87 and the Court in R v Stone,1999 CanLII 688, [1999] 2 SCR 290). The twist in Suteris the general unavailability of mistake of law as a defence unless it falls, as discussed below, within an exception such as mistake of mixed law and fact, colour of right and officially induced error. Again, without knowing the premise of the mistake, in law, we are unsure if the mistake is being used at sentencing as a defence that could not be proven at trial or as a defence unavailable at trial.

There is glancing discussion by Justice Gascon on s.19 of the Code which sets out the admonition that ignorance of the law is no excuse (para 127). There is, however, no discussion of when a mistake of law can be a defence such as when it is a matter of mixed fact and law (see R v Manuel2008 BCCA 143 at paras 16 and 17), a colour of right (see Justice Moldaver’s decision in R v Simpson2015 SCC 40, [2015] 2 SCR 827), or officially induced error such as in Lévis (City) v. Tétreault2006 SCC 12 , [2006] 1 SCR 420. Not referencing the Lévis decision is a surprise as it is that decision in which the Supreme Court outlines the very strict requirements for the defence of officially induced error, a defence traditionally only applicable in regulatory matters. A reliance on another person for knowledge of the law seems to fit squarely within the Suter form of mistake of law. Yet, there is no discussion in Suter of this point. We do not know under what form of mistake of law the Court is considering. Is it officially induced error as Justice Gascon seems to be suggesting or is it an honest but mistaken belief in law? Is the issue a mixed law and fact, permitting a defence? Or is it a question of scope and interpretation of the law, which is a feature of mistake of law? Does it even matter if the defence is available in law or not or what it may consist of if we are in the sentencing hearing stage where the procedural and evidential standards are relaxed? These and many questions are simply left out of this decision to be filled in by speculation.  Again, there are hints to their approach as the issue of the lawyer’s incorrect advice and the reliance on it is a point of discussion and disagreement. 

To be sure, duty counsel or Brydges lawyer (referring to R v Brydges1990 CanLII 123,[1990] 1 SCR 190, in which the Supreme Court found the state must provide an accused access to a lawyer upon arrest to comply with s.10(b) right to counsel under the Charter) does not, according to case law, fulfil the Lévisrequirement that the official who gives the legal advice be a government official authorized to speak on the issue. In R v Pea, 2008 CanLII 89824(ON CA) and R v Beierl2010 ONCA 697duty counsel was not considered an official for purposes of the defence. This point, seemingly at issue in an officially induced error scenario, was not discussed in Suter just as the defence itself was not directly raised.

Also, not fully discussed is the Pontesdecision, referenced earlier in this post, in which Justice Gonthier, for the dissent, enters into a principled discussion of the operation of s. 19 of the Codeand thoroughly discusses instances where a mistake of law may be a defence to a strict liability offence (paras 71 to 80). Although Pontesis decided in the context of regulatory offences, Justice Gonthier considers an earlier Supreme Court decision in R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, on the required elements of the then Criminal Code offence of wilfully failing or refusing to comply with a probation order. In his analysis in paragraph 75 of Pontes, Justice Gonthier relies on Docherty for the contention that ignorance of the law may provide an excuse where knowledge of the law is part of the mens reaof the offence. The evidence of an accused’s lack of knowledge of the legality of the breach would negate a “wilful” failure or refusal to comply. There is no discussion in Suter on the mens rea required for the offence for which Suter entered a plea and subsequently this aspect was not raised.

There is another telling dimension to the mistake of law approach. Throughout the dissent, Justice Gascon calls the offence “administrative” (paras 107, 172, 181, 183, and 201) signalling his belief the offence is more akin to a regulatory matter. This characterization renders the mistake of law defence even more applicable based on its broader usage in the prosecution of regulatory matters where knowledge of a large body of regulation is difficult. Yet, the Suter offence is in the criminal code and is not regulatory. To characterize this offence as administrative in nature deflects the issue away from the reason behind the offence not just as an incentive to assist police in the investigation of impaired driving crimes but to provide a disincentive to refuse to do so in order to escape criminal or civil liability. Courts have characterized this offence in a similar way (see R v Seip,2017 BCCA 54 at para 36).

This result-oriented perspective occurs to such an extent in Suter that we are not even sure to what standard of proof the mistake of law must be proven for the mistake to be considered in sentencing. This missing piece acts to magnify the differences between the majority and dissent. Justice Moldaver enters into a discussion of Suter’s sincere and honest belief in the mistake (paras 62-70) akin to a mistaken but honest belief assessment needed for the defence of mistake of fact. Conversely, Justice Gonthier focuses on the bad legal advice, without which, Suter would not be in court, making Suter’s “moral blameworthiness ... infinitesimal” (para 174). No one meaningfully articulates the commonalties, other than mistake can be considered on sentence. It is as if the Court is working backward from the sentence to the mistake itself. This backward glance is the source of friction between the two decisions and is most readily apparent in their perception of the importance of the legal advice on the mistake.

This framing of the so-called mistake of law scenario leads into the very different perspective on the bad legal advice given to Mr. Suter. Justice Moldaver pins the mistake of law on Suter in terms of his belief of what the law required. In the majority’s construction of legal rights and responsibilities, it is the individual and their personal choices that control the effect of the law. Justice Moldaver takes a hard-line in finding a paucity of evidence on the true substance of the legal advice given and counters that absence of evidence with the presence of the police officer, who fulfills his Charter duty by cautioning Suter to provide a sample or face the consequences of a criminal charge. To take this position in the context of a sentencing hearing, where evidential and procedural rules are relaxed (see R v Lévesque2000 SCC 47, [2000] 2 SCR 487) shows a clear desire to minimize the impact of the mistake, in whatever form it is in.  

Justice Gascon pins the mistake on the duty counsel lawyer and then frames Suter’s duties within a Charter framework. The dissent leans on the Charter as an explanation for why Suter was acting under a mistake of law relying on Charter protections not as stand-alone arguments where rights are breached but to provide the basis for inferences as to why people choose to do what they do. Thus, Suter’s failure to blow, despite the police officer’s dire warning that a failure will result in a criminal charge, is waved away by Justice Gascon as a reasonable response of an accused to information from an agent of the state – the very agent who is attempting to build evidence against him. This emphasis on the state as the bad actor so to speak builds a much different narrative than the majority. It also fails to acknowledge some case authorities that have tackled the issue of officially induced error where the police caution to provide a sample is confusing (see R v Humble2010 ONSC 2995). Again, we are on uncertain ground by not knowing what the mistake of law is predicated on and who the “authorized” officials are in the scenario. The Suter decision is directionless on this and yet the appeal provided a perfect opportunity to provide clarity on these issues, despite the uniqueness of the fact situation. 

Nestled within these correlated issues and directly arising from the sentencing hearing, flows the discussion on the application of the 2015 Supreme Court decision on sentencing principles, R v Lacasse2015 SCC 64, [2015] 3 SCR 1089. Where Suter is set in a unique factual circumstance, Lacasse involves the all too often scenario of impaired driving causing death. There is, sadly, nothing unique about the facts there. Indeed, the Lacassedecision is broadly based and serves to clarify general sentencing principles and the role of the appellate courts in considering a sentence appeal. Suter, while applying Lacasse, resurrects some of those self-same issues. Notably, Justice Gascon dissented with the then Chief Justice McLachlin, giving Sutera déjà vu flavour. Some might even say based on Justice Gascon’s dissent, that far from applying Lacasse, the Court in Suteris doing just what Lacasse attempted to avoid – the “tinkering” of the quantum of sentences at the appellate level. In Suter, as in Lacasse, moral culpability, proportionality and gravity of the offence drive the foundational underpinnings of the decision.

The next issue, flowing from the first two, involves the larger discussion on the role of the Supreme Court in sentencing appeals – not just appellate courts – but as the court of final appeal. This is not just a purely jurisdictional discussion as found in R v Gardiner1982 CanLII 30 (SCC),[1982] 2 SCR 368, and as distilled by Chief Justice Lamer in paragraph 33 of the M(CA)decision. This is a complex interplay between the roles of trial courts versus appellate courts in determining fitness of sentence that flows beyond jurisdiction. Appellate intervention is hierarchical yet infused with deference. Deference to the trial judge is a continual appellate theme, as it symbolizes the core of our common law justice system. This is a system where judicial parameters are laid down in principle but not rigidly adhered to. There is, as mentioned at the start of this post, wriggle room for the judges to apply their own common sense and discretion, based naturally in law so as not to be unreasonable or erratic. It flows from judicial independence and from a desire to inject into the process a good dose of humanity in the form of equity. 

Deference to the trial judge in Suter becomes not just an issue arising from the appeal but becomes a tool used by the dissent of Justice Gascon (paras 161 – 178). For Justice Gascon, the majority becomes a court of first instance as they exercise their own discretion, wielded through their own judicial lens by sentencing the accused ab initio. All of this, to Justice Gascon’s chagrin, to ‘tinker’ with the sentencing judge’s perfectly principled original sentence. Justice Gascon goes so far as to ‘call out’ Justice Moldaver for obfuscating the real reason for the increased sentence imposed by the majority as a pandering to the public/government’s tough on crime agenda, particularly in the area of impaired driving (para 159). This deference is hard won as Justice Gascon himself admits that he would have “personally ... weighed the gravity of the offence more heavily than the sentencing judge” (para 170). His challenge to the majority is a clear indication that the court is divided philosophically, politically and legally. Deference in Suter becomes not just trial judge deference but deference to the Rule of Law, to the independence of the courts and to each other.

Indeed, Justice Moldaver commences his reasons by applying an earlier Supreme Court case, R v Mian2014 SCC 54, [2014] 2 SCR 689, on the scope of appellate review (see my earlier blog posting on the issue on my ideablawg website). Mian raises the spectre of a reasonable apprehension of bias at the appellate level when the appellate court raises issues not identified by appellate counsel. In Mian, it is not so much the raising of the new issue which is problematic but raising the issue without giving counsel the ability to respond. In Justice Moldaver’s view this opportunity was given in Suter

But flowing from the Mian concern is the additional problem or error of the court of appeal in sentencing Suter for offences of which he was not charged (paras 35 to 44). The procedural concept of an appellate court raising new issues on its own motion becomes an error in law as the court of appeal created a “novel and confusing” form of impairment “by distraction” akin to a careless driving or dangerous driving delict (para 38). According to Justice Moldaver, by doing so, the court of appeal was “circumventing the sentencing judge’s finding that this accident was simply the result of “non-impaired driving error” (para 38). Again, deference to the trial judge re-appears, as finding of facts is the province of the trial judge, who lived and breathed the evidence, not the appellate court, who merely reads it. This is particularly important in sentencing as a sentencing judge can sentence an accused on uncharged offences arising from the facts, but those aggravating features must be proven beyond a reasonable doubt (see R v Angelillo,2006 SCC 55, [2006] 2 SCR 728). There is a further concern with this position as it reflects on Justice Gascon’s concern with the majority’s decision to re-sentence Suter. Sentencing as an art is a collage of facts and principle where the emotional content of the accused’s background and the gravity of the offence colour the decision-making. Who better to do this than the original sentencing judge.

Indeed, who better? Briefly looking at previous sentence appeals decided at the Supreme Court level, the re-sentencing of Suter is unique. The Court may remit the matter back to the trial judge for imposition of sentence where the Court enters a conviction overturning an acquittal (see for example R v Bradshaw, [1976] 1 SCR 162,1975 CanLII 19 (SCC)Rv Audet, [1996] 2 SCR 171, 1996 CanLII 198 (SCC),and R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711(SCC)). The Court may also remit the matter to the lower appellate court for re-consideration pursuant to that court’s power under s. 687 of the Criminal Code to vary the sentence imposed (see for example Lowry et al v R, [1974] SCR 195, 1972 CanLII 171 (SCC)and R v Loyer et al, [1978] 2 SCR 631, 1978 CanLII 194 (SCC)where the Supreme Court ordered the matter back to the court of appeal to pass a new sentence upon hearing of sentencing submissions by counsel at page 204). Rarely does the Supreme Court re-sentence an Appellant but never before has the Court found both the trial judge and the court of appeal to be in error in the fitness of sentence imposed (according to my Canlii database search). The Supreme Court has no direct statutory authority to impose sentence as in the case of a provincial court of appeal. 

Although re-sentencing in toto has not happened previously, the Supreme Court has adjusted a sentence. For instance, in R v Morrisey[2000] 2 SCR 90, the Court varied the sentence to properly account for pretrial custody. Also, the Court has adjusted a sentenceto bring it into conformity with a joint submission on sentence such as in R v Anthony-Cook,2016 SCC 43, [2016] 2 S.C.R. 204. Prior to Suter, the closest the Court came to imposing a sentence is in R v Middleton,2009 SCC 21, [2009] 1 SCR 674, where Justice Cromwell, dissenting in part, found the sentence to be illegal but refrained from deciding what sentence he would impose considering the outcome of the appeal per the majority’s decision (see paras 112 -113).

Justice Gascon, to put it mildly, did not approve of this re-sentencing. As mentioned earlier, he found the new sentence imposed by the majority to be effectively a non-sentence as it amounted to time served. Consistent with this view, Justice Gascon labelled the majority’s decision as a “stay” of the sentence (para 158). The Supreme Court has stayed the passing of sentence in previous appeals but not in conjunction with re-sentencing, such as in Suter, where the Court actually applies sentencing principles and balances the required considerations to arrive at an actual sentence quantum. In R v LFW2000 SCC 6, [2000] 1 SCR132 for example, the Court found the conditional sentence was inappropriate and a term of incarceration was required. The then Chief Justice Lamer stayed the passing of that imprisonment as the offender had completed the conditional sentence and it would be “very difficult” for the sentencing judge to re-sentence (para 32). In another decision, the Court restored but stayed a conditional sentence order where the offender had already served the period of incarceration ordered by the court of appeal (see R v RNS2000 SCC 7,[2000] 1 SCR 149). Suteralso differs from R v Fice, [2005] 1 SCR 742, 2005 SCC 32 (CanLII), where the Supreme Court found the court of appeal erred in upholding an illegal conditional sentence order but stayed what would otherwise be a penitentiary sentence. The Court in Ficedid not enter into a sentencing assessment and the stay appeared to be with consent of all parties (para 46).

It should also be noted that the concept of imposing time served on a sentence appeal even if a longer sentence was appropriate is not unusual. Provincial appellate courts of appeal regularly take into account whether it would be in the interests of justice to re-incarcerate the Appellant when a sentence appeal is allowed (see R v Reddick1977 ALTASCAD 199 (CanLII)at para 4; R v Mann1995 CanLII 321 (ON CA)and R v Maxwell-Smith2013 YKCA 12(CanLII) at para 21). What is unusual is the fact that it is the Supreme Court doing it. Justice Moldaver, who sat as a trial judge and as a court of appeal justice, is very familiar with sentence appeals and the pragmatic outcomes needed. We see in Sutera clear division along the lines of practical realism on one hand and principled rule-based approaches. 

The last set of issues flow from the previous ones as we read between the lines of this judgment. Such a close reading reveals both this Court’s approach to criminal law and the sense of discordant approaches within the Court itself. Examples of this can be seen in the majority and dissent positioning around mistake of law and deference. It is also viscerally read in the tone and approach of Justice Gascon’s dissent with a specific part dedicated to pulling apart the majority’s position to the point of parsing in all of its minutiae the majority’s reasoning (paras 156 – 159). This dissection reminds me of the Supreme Court’s own caution not to cherry-pick or parse a trial judge’s reasons but to view the whole of the reasons in determining whether an error was occasioned and if there is an error, the significance of it (I discuss this more thoroughly in a soon to be published paper in the Manitoba Law Journal entitled The W(D) Revolution). Justice Gascon’s dissent shows this is easier said than done.  

This extensive point by point response to the majority and even the majority’s anticipatory responses to the dissent belie a tension hitherto not seen to such a degree in the Supreme Court. Even in the heady days of the Nineteen- Nineties when the court was fractured, there was a sense the Court was still attempting to talk to us, the legal community, albeit disparately, about the legal principles. Suter feels different. In Suter the judges are airing their laundry so to speak and speaking as they probably do behind closed doors where they engage in no doubt vigorous debate about the issues. Is this the transparency Chief Justice Wagner is encouraging from the Court? Or, as parts of this judgment feel, is this exclusionary as the legal community becomes the child in the room who can sense the tension from the parental tone of voice but cannot understand the meaning of the words? In some ways we are not privy to the deeper discordance that may lay behind this judgment – perhaps the differences between principal and pragmatism, which seems to permeate this judgment.

This leads us finally to a discussion of not what lies between the lines but how those lines are written and the judgment as a unique literary device that may challenge our idea of how the law is not only decided but also represented in Canadian case law. I mentioned this earlier, but the judgment reads as a discourse in which the majority and dissent write for themselves and between themselves. This may suggest an American approach where the SCOTUS render opinions, not judgments, and as such tend to be opinionated in their approach by consistently responding to one another either directly in the opinions or through footnotes. Whether Suter signals a change in writing style and approach will be a matter of record as this newly minted Wagner court renders decisions on decisive issues. 

This decision is important. It discusses novel issues in a novel way. It exhibits an approach from the Supreme Court which we have not seen before. It impacts an area of criminal law in much need of legal discussion considering much of what a trial judge does in criminal law focuses on the criminal sanction. But the Suter decisionis wanting as it leaves us wanting more. Sentencing is a delicate art and requires a fine balance between oft opposing principles. So too, a Supreme Court judgment requires that self-same balance to help us navigate our clients through the legal maze. Although Suter fails to achieve this balance, it does leave a legacy of the further work which needs to be done by the legal community 

Episode 55 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 62 & Finding the Military in Our Criminal Code (text version)

Yet again, we have come to a section criminalizing misconduct relating to the military under section 62. Such behaviours amount to mutinous or treasonous actions, which we have already encountered in the previous podcast on s. 53 and inciting mutiny(the text version is here). The existence of such offences in the Codehighlight parallel military offences found in the National Defence Actand give us a sense of the hierarchical structure of military misconduct. It also suggests the parallel systems of justice we have in Canada involving the criminal justice system and the military disciplinary system. We can envision an assault occurring on a military base as sanctioned under the court martial regime but that same act could also be envisioned as part of our criminal justice system and just as easily could have been heard in a provincial courthouse. 

In terms of the Criminal Code, there are many references to the armed forces, some overt and some not so easily observed. As previously mentioned, we have already discussed mutiny under s.53, as an offence impacting military discipline. We also already discussed s.52 on sabotage(see podcastand text version), treason offences under s.46(see podcastand text version) and s. 50 assisting enemy alien(see podcast and text version) as offences potentially affecting the security and welfare of our armed forces. We also touched on military duty and military orders under s. 32 of the Codeon the military’s authority to suppress riots (see text and podcast here).

Sections we have not encountered yet show the breadth and depth of the criminal law in military affairs. First, the Codedefines the “Canadian Forces” under s. 2as the armed forces “raised” by Canada but also defines “Her Majesty’s Forces,” again under s. 2, as “naval, army and air forces of Her Majesty” wherever “raised,” including the Canadian Forces. Some of the Code provisions act to protect not only Canadian forces but Commonwealth nations as well. We do find in the Codeoffences a wide variety of military related offences, from falsely posing as a military member (s. 419) to torture under s. 269.1.

At this point, we should pause to remember how military law fits within the criminal law rubric. I touched upon this issue much earlier in this podcast series under Episode 8discussing s. 5 of theCodeas a section indicating the independence of military law from the criminal law. The section, as discussed in that podcast, together with s. 130 of the National Defence Act, create parallel but separate modes of sanctioning a member of the military, be it through disciplinary action or criminal prosecution. Again, this previous blog/podcast outlines in a very summary fashion, the procedure. The blog posting also points out the weaknesses in the military system to adequately underline the repugnant nature of some military offences pertaining to acts of cruelty toward the civilians in foreign nations. These human rights violations go beyond military discipline and treaty compliance and enter the realm of the criminal law to such as extent that only prosecution under the Criminal Codeseems appropriate even though the military courts’ sanctioning ability does permit for criminal law like punishment. 

Since the writing of that blog posting in 2013, the Supreme Court in R v Moriarity, [2015] 3 SCR 485, 2015 SCC 55 has further considered the issue of the use of military discipline under the National Defence Act, in that case, for criminal offences involving fraud. The arguments raised issue with the overbreadth of criminal-like crimes that can be sanctioned under the military system. The decision, written by an unanimous court under Justice Cromwell, found that  ss. 130(1)(a) and 117(f) of the NDA, permitting such sanctioning, did not infringe s. 7 of the Charter. As noted by Justice Cromwell in paragraph 8 of the judgment, only murder, manslaughter, and child abduction offences are not incorporated under the military Code of Service Discipline, which provides the underlying authority for disciplining such misconduct. The decision also reiterates earlier case law (see the 1992 Généreuxdecision) that “Parliament’s objective in creating the military justice system was to provide processes that would assure the maintenance of discipline, efficiency and morale of the military” (see para 46 of Moriarity). In order to fulfill these objectives the disciplinary process may sanction military offenders with these “criminal” offences.

Turning back to the issue at hand, s. 62 of the Codeis a broad section, overly broad I will suggest, outlining offences relating to military forces, some of which are reflective of other offences in the Code. This section applies to both Canadian Forces and those foreign armed forces present in Canada as provided for in the working definition of “member of a force” under s. 62(2).

Section 62(1) reads as follows:

62 (1) Every one who wilfully
(a) interferes with, impairs or influences the loyalty or discipline of a member of a force,
(b) publishes, edits, issues, circulates or distributes a writing that advises, counsels or urges insubordination, disloyalty, mutiny or refusal of duty by a member of a force, or
(c) advises, counsels, urges or in any manner causes insubordination, disloyalty, mutiny or refusal of duty by a member of a force,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

This section seems to take all of the other offences in the Coderelating to military such as sections 46, 50, and 52 to 53 and provide an omnibus offence with aspects of treason (see s. 62(1)(a)), mutiny (see s. 62(1)9c), and sedition (see s. 62(1)(b) all bound into one section. However, this section appears to offer offences considerably less serious than the other criminal offences it seems to mimic considering the punishment differences. For instance, treason under s. 47 is an offence punishable by a maximum of fourteen years or life (see as previously mentioned podcast Episode 43). Section 62 involves criminal conduct similar to those more serious sections but sanctions the conduct as an indictable offence with a maximum of 5 years imprisonment. 

Historically, it should be noted, the section was brought into the Codein the 1951 amendments and was initially a section involving “Miscellaneous offences of a seditious nature.” For a full discussion of sedition, see Episode 54of my podcast. Notably, however, section 62 does not exactly mirror the sedition section under s. 59 and permits a much broader unlawful act. Sedition under s. 59 criminalizes seditious words and intention as publishing, circulating or advocating. Section 62 criminalizes words of insubordination, disloyalty or mutiny, in the context of the armed forces, that are not only published and circulated but also distributed, issued, or edited. Although distributing and issuing may be synonyms for publishing and circulating, the act of editing is not. There are no other offences in the Codethat consider editing a document for a criminal purpose as a crime. The reference to interfering with loyalty or discipline is reminiscent of the mischief sections under s. 430. The prohibited act of “influences” is also found in the obstruct justice offences under s. 139and corruption like offences under ss. 123 and 121. Although “advises” and “counsels” are akin to the counselling section in the Codeunder s. 22, “urges,” as a prohibited act, is not found in any other section of the Code. This shows s. 62 to be an amalgam of offences providing for a broad range of misconduct. 

The fault requirement can be found in the word “wilful,” which as mentioned in previous podcasts (Episode 44and Episode 45), indicates a requirement for subjective liability but depending on the interpretation of the word, may indicate a form of subjective liability requiring a high-level of intention. There is no case law on the issue.

In fact I found no cases directly on s. 62 in my database search. One possible reason is the desire to use the more flexible court martials process for such misconduct considering the approval for such usage in Moriarity. Furthermore, s. 11(f) of the Charter, giving the right to a jury trial for offences punishable by 5 years or more, specifically exempts military tribunal sanctions. Thus, making for a summary procedure under the military laws. 

This brings us to my final comment on this section – a comment you who have listened to my podcasts may be already tired of hearing – that in the reform of the Code, the government should be pressed to review all of the military-like offences in the Codefor revision and/or deletion. 

 

 

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!

DISPENSING SPEEDY JUSTICE: THE SUPREME COURT OF CANADA & DECISIONS FROM THE BENCH

Recently, I was asked to comment on the recent Supreme Court of Canada decision on R v Stephan2018 SCC 21. The decision, given from the Bench immediately after the argument of the appeal, took many media outlets by surprise. The media, and to a large extent, lawyers, are not accustomed to speedy decision-making from the Supreme Court. We collectively expect the Court to reserve judgment and then, after months of diligent research and writing, the Court issues an unassuming missive that the judgment will be rendered on X date at Y time. I have often waited at my computer close to the appointed hour in order to immerse myself in the expectation of a new judgment release. For instance, I eagerly awaited the release of R v Marakah[2017] 2 SCR 608 and R v Jones[2017] 2 SCR 696, at 9:45 a.m. ESTto be first in line to the lines of decision-making, which would, we all hoped, reveal the answers to the perplexing issues raised by the s. 8 issues surrounding the seizure of text messages found on a 3rdparty’s smart phone. True, the Supreme Court could disappoint as reality often does not live up to expectations. But at least we had 200 paragraphs on which to mull over how we should have or ought to have known better. So, when the Stephandecision was rendered so quickly, I began to wonder if this was a trend on the part of the Supremes or whether it was merely my own biases coming into play. I was determined, therefore, to see if in fact the Supreme Court is rendering from the Bench more often than in the past and if so, why.

First, I need to reveal my bias. This bias is based on a self-made presumption on the differing roles of a trial court and an appellate court and on the hierarchal stature of those courts as ingrained into me through law school and legal practice. The baggage I come with is this: that trial courts are a messy affair where the hubbub of provincial court requires speed over judicial consideration in contrast with the quiet decorum of the sparsely populated appellate courts filled with robes and lacking in lay observers. This perception of justice is overlaid with a leap in logic that in retrospect may be an improper inference: that the noisy and boisterous trial court, which dispenses speedy justice is not engaging the law writ big but is merely applying the law given to it by the bigwigs. This kind of decision making doesn’t take long does it? The idea of a reserve in the trial courts is not as welcome as in the appellate arena as it spells unconscionable delay for a client with the charge hanging over her head or, even worse, it has some ominous meaning which cannot possibly result in a good outcome. But, the appellate courts, struggling with the law, now they should take their time to render a true and just decision. We want them to read, contemplate, to hear and consider and then to write so we can all take it in. Of course, we have the hybrid superior court where the pace is less frenetic and more scholarly – we will except somedelay there but only for trial matters, applications and such must be dealt with summarily.

As outlined, this bias may result in the impermissible inference that what happens in provincial court doesn’t matter but what happens in the hallowed halls of the Supreme Court must matter because, well, they take so long. Or do they? After the release of Stephan,I was determined to find out. 

I started with an analysis of 2018 from January 1 to May 21. There are 12 criminal law judgments rendered by the Supreme Court with 8 of those decisions given from the Bench, orally, immediately after the hearing of the appeal. Out of those 8 oral decisions, 3 of the appeals (R v GTD,2018 SCC 7R v Black2018 SCC 10,  R v Stephan2018 SCC 21) are allowed resulting in new trials. Two of 3 appeals allowed are from the Court of Appeal of Alberta. 

A Bench decision, does not mean unanimity; 3 of the 8 decisions have dissenting positions from one member of the panel (R v GTD,2018 SCC 7with Chief Justice dissenting, RA v Her MajestyThe Queen2018 SCC 13with Justice Gascon dissenting, R v Cain2018 SCC 20with Justice Côtédissenting). Seven of the 8 Bench decisions, are from appeals as of right, as appeals, not requiring leave, on a question of law arising from a dissent in the lower appellate court.  Only 1 decision R v Seipp2018 SCC 1, was a dismissal after receiving leave to appeal. On the civil side, there are 10 judgments released thus far this year with only 1 judgment dismissing the appeal from the Bench but with a dissenting decision (International Brotherhood of Electrical Workers (IBEW) Local 773 v. Lawrence2018 SCC 11). Of note, 1 of the judgments released with reasons, R v Magoon2018 SCC14, was an appeal heard and dismissed, with the co-accused’s appeal R v Jordan2017 CanLII 80438on November 27, 2017, but with an indication by the Court that reasons would follow.

As an aside, of the 4 criminal appeals with written reasons, 2 cases are from the Court of Appeal of Alberta. In R v Canadian Broadcasting Corp., theCourt considered whether the CBC must delete publicly accessible information on a case for which a publication ban was issued after the publishing of that information. The Supreme Court allowed the appeal, unanimously reversing the majority decision of the Court of Appeal and upheld the decision of the chambers judge who dismissed an application for a mandatory interlocutory injunction to order the deletion of the information. The other written decision, is the previously mentioned R v Magoon, which was dismissed unanimously. Of the 12 decisions rendered on criminal cases this year, half of those are from the Court of Appeal of Alberta. 

What does all of this mean? At first blush, there appears to generally be a large number of appeals going to the Supreme Court from Alberta. The reason for this is due to s. 691, which gives an offender the right to appeal to the Supreme Court on a question of law where a judge of the court of appeal dissents. Four of the 8 oral judgments are from Alberta as appeals as of right under s. 691(1)(a) based on a dissenting decision on a question of law. The other 3 as of right appeals with an oral decision are from the Ontario (with 2 cases) and Nova Scotia appellate courts. What we can infer from this that there are a large number of dissenting decisions, on a question of law, from the Court of Appeal of Alberta. This can then lead to an inference that this higher number of dissenting decisions in Alberta are leading to a larger criminal case load in the Supreme Court. As the majority of the appeals are as of right and are not heard on the basis of leave involving issues of national importance or due to conflicting decisions from province to province, they do not engage the deep analysis needed from the Supreme Court as the final court of appeal. 

This propensity to deal with the higher caseload by rendering immediate decisions from the Bench, may also however be directly connected to a new cultural shift in the post-Jordanera. The Supreme Court must administer their court, as they admonished the lower courts to do, efficiently and effectively. Timeliness is a key feature of the s. 11(b)unreasonable delay decisions of R v Jordan, [2016] 1 SCR 631and R v Cody[2017] 1 SCR 659and that timeliness depends upon the administration of justice and court management. In many ways, the Supreme Court by setting an example of a hard-working court who reviews written material in advance, who is able to retire after hearing argument to make a final determination on legal issues, is signalling to the lower courts, including the appellate courts, that efficiencies can be found. 

In an effort, therefore to dispose of the volume of appeals, heard as of right, in a timely manner, the Supreme Court is dispensing their decisions on these cases more readily from the Bench. In so doing, they are essentially choosing “sides” by indicating whether they substantially agree with the majority or the dissent. They are, however, not only leaning on the lower court decisions in these oral judgments, but are often adding brief oral reasons, highlighting the basis for their decisions. For instance, in the most recent decision of R v Stephan, the Court agreed with the dissent of Justice O’Ferrall but briefly particularized the basis of that agreement. More substantial oral reasons were given in R v GTD,2018 SCC 7, again from Alberta, but on the issue of a breach of the Appellant’s right to counsel under s. 10(b) of the Charterand whether the violation should result in the exclusion of the statement under s. 24(2). Here, the majority of the Supreme Court allowed the appeal against conviction and reversed the majority decision of the Court of Appeal of Alberta This was a significant decision as it found a right to counsel violation when the police officer fails to “hold off” in questioning the accused where the accused indicates a desire to exercise their right to speak to a lawyer. The statement in that case was given after the Appellant was read his right to counsel with an indication he wanted to exercise that right, but the officer immediately proceeded to ask if he had anything to say, a usual question asked at the end of the standard caution. This “standard” practice was not only a violation but one in which the Court found was serious enough to require the statement given to be excluded under s. 24(2). Although a brief oral judgment, this was an important one. 

However, this rush to judgment may not always be satisfactory. Although, R v GTDoral decision is clear enough, the oral reasons in the Stephancase seem to leave us wanting more. In that case, the Appellants were convicted by a jury of a failure to provide the necessaries of life to their young child under s. 215 of the Criminal Code. The majority of the Court of Appeal for Alberta found no error in the instructions to the jury, relying on the familiar case law tropes which urge appellate courts to view the so-called error in the context of the whole charge to the jury, to not be blinded by formulaic instructions but to look at content over form and to keep in mind that a jury charge need not be error free or “perfect” (paras 43 to 44, 86 to 87 & 105, 108 & 135). 

In contrast, the dissenting Justice O’Ferrall found much wrong and little right in the instructions to the jury. At paragraph 212, he calls the instructions on the essential elements of the offence “confusing, misleading, and deficient.” The charge was so “problematic” (para 212) that it gave the jury ‘little choice but to convict” (para 214). Specifically, Justice O’Ferrall commented on the failure of the trial judge to explain what would constitute a “failure” to provide the necessaries of life and whether that so-found “failure” would amount to an endangerment of the child’s life (paras 226 to 243). These concepts were key to proving the actus reus elements of the offence and needed clear and separate attention rather than the collapsed discussion of those elements offered to the jury. He also identified an error in the trial judge’s lack of explanation of the mens rearequirement of the offence, which required proof that the Appellants conduct was a marked departure from the standard of a reasonably prudent parent (paras 244 to 272). The trial judge failed to not only explain the meaning of the term but also failed to connect to that term the relevant trial evidence on the issue. 

The Supreme Court agreed with the dissent of Justice O’Ferrall by stating from the Bench in a decision given by Justice Moldaver, known as the ‘criminal law judge’ on the Court, that

In particular, we agree that the learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it.

Considering the issues raised by Justice O’Ferrall, this case would have benefited from a written decision on what the legal meaning of “failure” is in the context of s. 215 specifically but also generally in the context of offences that require an omission to act rather than a commission. Additionally, an analysis of the meaning of the term “marked departure” would further clarify an area of law, namely objective mens reaoffences, which calls out for clarity. Although the Supreme Court in R v Beatty, [2008] 1 SCR 49, went a long way in ending a decades long argument in the Supreme Court on what form of liability criminal negligence is (objective) and that no personal characteristics are imported to the reasonable person construct, it did not provide a meaningful description of what a marked departure, in reality, would be. The best Madam Justice Charron, speaking for the majority, could do was to articulate what “marked departure” was not. It is not a form of civil negligence. It is blameworthyconduct that amounts to penal negligence (para 6). That may help but whether that would in reality help a jury decide is another matter. 

In fact, I often explain “marked departure” in class spatially, showing the difference between being off the standard civilly and being off the standard markedly as a difference in space between my outstretched hands. That usually garners a giggle or two in the class, but there are more than giggles when I then demonstrate the “marked and substantial departure” standard for s. 219 offences. The laughter is often short-lived when the students struggle to articulate the differing standards on an exam. Even with an application of facts to the standard, which should assist in the discussion, the students feel a sense of vertigo when trying to apply the law to the facts. The Stephancase would have been a perfect opportunity for the Court to set things right and give those who must apply the law a meaningful standard on which to base their decisions. 

This brief foray into the 2018 bench decisions has revealed some interesting possibilities as to why lately there just seems to be so many oral decisions rendered from the Supreme Court bench. Those reasons may be procedural (appeals as of right), may be jurisdictional (large number of dissenting decisions from the Court of Appeal of Alberta), may be a push to become aligned with the post-Jordanera or may be a combination of all three. Certainly, there is a need to go further in this analysis to determine what 2017 looked like and whether this is the ‘new look’ of this new court now lead by a new Chief Justice. There is also a need to determine if this change did indeed happen after the release of Jordanor whether this a hiccup due to dissension in the Alberta appellate court. Whatever the true reason is, there will still be a need for the Supreme Court to act as the final arbiter of the law to give clarity in those areas where we need direction and to not just speak the words of justice but to dictate them as well.

 

Episode 54 of the Ideablawg Podcast on the Criminal Code of Canada: The Self-Fulfilling Words of Sedition under sections 59 to 61 or Presuming the Worst (Text Version)

Sedition, as with treason and other offences under Part II of the Criminal Code, is an offence against public order. It is directed to expressive communication, verbal or written, which promotes unlawful violent upheaval of the government, akin to treason. There are a number of exceptions to this general concept of sedition to permit lawful criticism of governmental actions. The punishment for sedition is severe, attracting a maximum term of fourteen years incarceration. There are many issues arising from this section. The obvious one involves a discussion of the constitutionality of the section considering it engages Charter expression, albeit violent expression that would most likely be saved under a s. 1 argument (for further discussion see Boucher v. The King,1949, SCC and R v Keegstra, 1990, SCC). An additional issue stems from the ever-present public policy question as to why certain sections still remain in the Code when there many other sections which could capture the essence of this offence.

For the sake of keeping this podcast contained in time and space, I will not discuss the obvious issues but will concentrate on the “presumption” of having a seditious intention by proof of the speaking of seditious words, the publishing of seditious libel or being a party to a seditious conspiracy. The podcast may seem a tad esoteric as a result, but I believe the discussion will reveal a singular truth about this section as well as raise a doubt in our mind as to the efficacy of a “common sense” notion regularly relied upon in our courts. The circularity and the historical meaning of this presumption, suggests this section raises Charter issues, not on the basis of s. 2(b), but on the presumption of innocence under s. 11(d).

First, a little housekeeping on the background of the sections. The offence, as with many of the offences under Part II, came to Canada from the English common law. A version of the offence is found in the 1892Criminal Code under sections 123 to 124. The punishment for the various forms of sedition in 1892 was two years imprisonment, a marked contrast to the punishment found in the current Code. Except for the punishment, the 1892 version of sedition is similar to the current s. 61 and to section 59(1) to (3). The original sections also provided very similar exceptions to the meaning of seditious intention as found under the current section 60. However, the original sections did not describe “seditious intention” nor did it provide for a presumption as stipulated under the current s. 59(4). This addition was brought into the Code in 1936. 

It is in Burbidge’s Digest of the Criminal Law of Canada, which predates the Code, where we perceive a clearer understanding of the meaning of seditious intention and the use of the presumption. Article 123 of Burbidge’s defines seditious intention as:

A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against, the person of Her Majesty, her heirs or successors, or the government and constitution of the United Kingdom or of Canada, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in the State by law established,or to incite any person to commit any crime, in disturbance of the peace, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.

This form of sedition is certainly broader than the now contemplated offence as it does not restrict the intention to a violent one or an unlawful one considering a seditious intention can be shown through the intention to “excite disaffection” against the Crown and state. There are cases discussing the implication of this definition of sedition, notably cases involving actions during war time. For instance, in Rex v Barron1918 CanLII 195 (SK CA),the Saskatchewan Court of Appeal considered sedition in relation to seditious words spoken during World War One as follows: “Everyone who gives to the Red Cross is crazy. If no one would give to the Red Cross the war would stop. The other country would beat this country if no one would give to the Red Cross.” The accused was found guilty of sedition by a jury. The issue on appeal was the admission of similar previous sentiments expressed by the accused. The conviction was affirmed with a dissent. The court discussed the difference between a merely disloyal statement and one which is “calculated to raise disaffection.” An expression of an opinion in a “chance conversation” was different than the seditious intention evinced by trying to persuade people not to contribute to the war effort “for the avowed purpose of enabling the enemy to win the war.” The conviction was upheld as the purpose of the Appellant’s comments, according to Saskatchewan Chief Justice Haultain, were “equivalent to raising disaffection” as the words would “stir up a spirit of disloyalty, even by a mercenary appeal, leading to action or inaction in favour of the enemy.”

The present offence is found under section 61 and reads as follows:

61 Every one who

(a) speaks seditious words,

(b) publishes a seditious libel, or

(c) is a party to a seditious conspiracy,

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

There are three ways in which a person can be charged with sedition under this section. First, the accused can “speak” “seditious” words. Second, the accused can be charged for publishing “seditious libel” and thirdly the accused may be charged as a party to “seditious” conspiracy. 

All three modes of committing the offence require, as an element of the actus reusor prohibited act, proof of a “seditious” act as defined under section 59. Section 59 offers a cumbersome, layered definition of sedition. Section 59 (1) defines “seditious words” as “words that express a seditious intention.” The phrase “seditious intention” is a presumption based on conduct as enumerated, in a non-exhaustive manner, under s. 59(4). The conduct which gives rise to the presumption of “seditious intention” is teaching, advocating, publishing or advocating in writing, “the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada.” Thus, actions are transformed into intentions. The actus reus becomes the mens rea

At first glance, this does not seem so radical. In crimes of “minimal intent” such as assault, Justice Wilson, in the 1988 Bernard case on the role of intoxication for general intent offences, suggested the mens rea can be inferred from the actus reus. In other words, the intention required under s. 265 – an intentional application of force – can be gleaned from the application of that force. This, however, is an inference which may be drawn, not must be drawn, and it does not relieve the Crown from its legal burden to prove the offence beyond a reasonable doubt. The problem with this circular relationship in sedition between the actus reus and mens rea is there is no inference to be made – the inference is self-made as a presumption.

Historically, the presumption relating to seditious intention was specifically described and articulated under Article 124 of Burbidge’s Digest of the Criminal Law of Canada as follows: 

In determining whether the intention with which any words were spoken, any document was published, or any agreement was made, was or was not seditious, every person must be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.

This presumption reads very similar to what is the permissive inference the trier of fact may draw that a person intends the natural consequences of their actions. This “common sense” inference, as Justice Moldaver will later call it in the 2012 Walle decision, sounds similar to the “minimal intent” comment made by Justice Wilson in the context of intoxication. In fact, intoxication was a factor in the Walledecision. The significant difference is the directive – “must” for a presumption – rather than a permissive in the “may” for an inference. The 'mandatory’ presumption is a legal construct in which a trier of fact mustinfer the presumed fact upon proof of an underlying fact. Presumptions are rebuttable but in being so, the party opposing the application of such presumption has the burden to displace it. In other words, the directive used for presumptions is the status quo or the default position, whilst the permissive does not suggest or contemplate a position, other than what is required in the legal burden and standard of proof of the burden on the Crown to prove beyond a reasonable doubt. 

 The difference is not puerile but real. In the 1969 Ontario Court of Appeal decision of R v Ortt, the court clarified that this “common-sense” notion of a person intending the consequence of their actions, was not a presumption or a “must infer” but was a permissive inference only. Making such an inference permissive was needed to ensure the burden on the Crown did not shift onto the accused in a criminal case. Such a shift of the burden of proof would be contrary to another more well-known presumption, the presumption of innocence. Of course, the presumption of innocence, as I have discussed in earlier podcasts here, is a fundamental expression of our societal values, and as constitutionalized under s. 11(d) must be preserved in the face of other presumptions which may run contrary to that core concept. 

It is all well and good to turn this “common sense” notion into a permissive concept in order to preserve the sentiment from Charterscrutiny, however, to merely flip a switch from Chartercaution to Charterfriendly causes concern. That concern is most evident when faced with the statutory presumption in sedition. In sedition, the very same notion – as defined under Burbidge’s Article 124 - is deemed a permissive inference under Walle. Which is it? Is it permissive and constitutional? Or, is it presumptive and contrary to s. 11(d)? Can a change of words, change the weight of such a “common sense” notion? One could argue that the concept relied upon with this presumption for sedition, that people mean what they do, is such a pernicious idea that labelling this notorious fact as a “permissive inference” is not only counter-intuitive but false. By not labelling this inference for what it is, as a presumption, the court is preserving the constitutionality of the concept in form yet permitting the presumption to live in content. This lends weight to in my previous blog posting on the Walle decision that the inference found in common law – that a person intends the natural consequence of their actions - imports an objective dimension into subjective mens rea offences, specifically murder.  

There are exceptions to the presumption, where, under s. 60, certain acts would not “deem” a person to have seditious intention. Even that term “deem,” strengthens the argument that we are working in a legal doctrine or construct, which is mandating a substitution of the actus reus for the mens rea upon proof of certain acts. A substitution, not an inference. This, I suggest, goes further than a violation of s. 11(d) and becomes a violation of s. 7, similar to the concern raised in R v Daviault in 1994, where the act of self-induced intoxication was used as a substitute for mens rea. This elimination of a need for a fault element runs contrary to the principles of fundamental justice as found in R v Vaillancourt and R v Martineau. An accused could still be convicted despite a reasonable doubt the accused intended to commit the sedition.

Those exceptions do permit healthy political dissent. Thus under s. 60:

... no person shall be deemed to have a seditious intention by reason only that he intends, in good faith,

(a) to show that Her Majesty has been misled or mistaken in her measures;

(b) to point out errors or defects in

(i) the government or constitution of Canada or a province,

(ii) Parliament or the legislature of a province, or

(iii) the administration of justice in Canada;

(c) to procure, by lawful means, the alteration of any matter of government in Canada; or

(d) to point out, for the purpose of removal, matters that produce or tend to produce feelings of hostility and ill-will between different classes of persons in Canada.

The s. 60(d) exception could use further explanation. I take this oddly worded exception as a provision for a public good argument.  This except brings the Buzzanger and Durocher case to mind, an Ontario Court of Appeal decision written by Justice G. Arthur Martin, who allowed the Appellants' appeal against conviction for wilfully promoting hatred under the now s. 319(2) of the Criminal Code. There, the Appellants did not have the requisite high level of intention required to commit the offence "wilfully" as their intention in publishing the pamphlet railing against the Francophone community was not to promote hatred but to highlight the absurdity of hatred through the use of satire. Often, in eradicating professions of hatred against others or against government initiatives, the message must reference those abhorrent sentiments to show the fallacy and harm of those repugnant behaviours. To do so, this subsection clarifies, is not seditious. Indeed, through this exception, we are not presuming the worst of people. 

The sedition sections are, as I said at the start of this podcast, an example of the kind of public behaviours we deem worthy of punishment through our criminal law. However, what was worthy in 1892 may not be as much of a concern now where we have many other tools at our disposal in other sections of the Code. The emphasis of this offence should be on the potential violence propounded by the offence and not on the words of dissent, which is protected and accepted in any healthy democracy. If violence is the key, then the section fails to resonate with that concept as a result of the poor wording of the section and the choice to rely on a mandatory presumption of intent. Here is yet another criminal offence to add to the list of Code reform.

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.

 

Leaving A Paper Trail: A Comment on Bill C-75 (also posted on www.ablawg.ca)

Receiving the newest Bill tabled in the House on proposed changes to the criminal justice system brings to mind the image of opening gifts at a birthday party. Each gift is scrupulously wrapped in an array of cheerful paper with shiny ribbons. As each bundle is displayed, there is a jostling amongst the party goers – each eager to see the gift unwrapped to reveal the prize inside. The image goes only so far when it comes to the government’s proposed amendments to the Criminal Codetabled last week under the auspices of Bill C-75. Underneath the wrapping, over 300 pages of paper, is no prize but a maze of amendments and changes – a patchwork of pieces – some of which significantly change the criminal justice system. Although some of these amendments are welcome, others signal a significant shift in our criminal justice system. Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. Unfortunately, this omnibus Bill in many respects fails to be visionary. Rather, short-term administrative efficiency seems to be the prize under the mountain of paper.

To be sure, there are changes we can all agree upon such as the repealing of some decidedly dead offences disabled by the application of the Charter. The best Albertan example of the danger in leaving things unchanged that have been changed is found in the original decision of R v Vader,2016 ABQB 505 (CanLII). In that decision, s 230, unconstitutional since 1987 as a result of the seminal decision of Justice Lamer, as he then was, in R v Vaillancourt, [1987] 2 SCR 636, 1987 CanLII 2 (SCC), was resurrected to convict the accused of murder. That error was easily and quickly undone as, in Pandora Box fashion, the lid was slammed shut with the s 230 conviction adroitly converted into the constitutional manslaughter conviction (see R v Vader2016 ABQB 625 (CanLII)). Bill C-75 explicitly repeals s 230, and that is a good change.

In C-75, there are also some expected changes, such as the abolishment of peremptory challenges to jury members under s 634 to be replaced by the more meaningful challenge for cause procedure. Although these changes are for good public policy reasons (see my earlier post on the Stanley / Boushie case here), such changes, which turn an automatic process into a discretionary one, still require thoughtful and mindful decisions by all those involved, counsel included. Changes can provide better and more equitable outcomes, but changes do not, in and of themselves, guarantee there will be change, they only make change possible. 

There are also some unexpected changes or at least changes some of us feared but doubted would occur. For further comment on the efficacy, purpose and reason for retaining, in some form, the preliminary inquiry, see my previous post on the issue as part of a case commentary written in April of 2015, “Does the StinertDecision Signal the End of the Preliminary Inquiry?”. The abolishment of the preliminary inquiry, except for the most serious offences, is one change we feared for years and are still probably in a state of denial about as our fears have become a reality. I suppose we should be relieved that the process was not entirely eradicated but perhaps that was the plan; to lull us with a sense of false security. 

Another, smaller change, yet completely unexpected and unwanted is an important evidentiary change under the soon to be added s 657.01, permitting the admission of the “routine” evidence of a police officer at trial in affidavit format, without the hearing of that evidence. This evidence is not given in real time. It is not even given orally. It is proffered as affidavit evidence. In other words, it is tendered on paper. This effects a precarious step, a paper-thin one, toward the potential future of trials by paper in the criminal court. 

As mentioned earlier, part of the difficulty with this government’s approach to Criminal Coderevision is the lack of long-term strategic vision. Reading these amendments, there is a sense that some of these changes were made without thinking them through to their ultimate end and without mentally testing them in a real trial scenario to determine how they will ultimately play out in court. For these changes to be meaningful and workable, yet still upholding the principles of fundamental justice, we rely on our government, before they change the law, to ask themselves why they are in fact changing it. We want the government to think before acting and ask whether the contemplated change is for the better.  Finally, we rely on the government to make these changes in an effort to enhance the criminal justice system while preserving the protections of those whose liberty is at risk. I emphasize to enhance, not to make the system more efficient. Efficiency cannot be and has never been the only reason for reform. Efficiency is not what we want from our justice system. That is not what the Jordan (2016 SCC 27) and Cody(2017 SCC 31) decisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about.

As is typical with omnibus Bills, instead of stopping at what needs to be done, the government went above and beyond by also adding under the proposed s 644(3), an ability to convert a jury trial in mid-trial into a trial by judge alone, in the event the number of jurors fall below the number required to continue the trial. Although this can only be done by consent of both parties and therefore appears innocuous and not worth commenting on, my question is – why? A decision to have a jury trial is an accused’s Charterprotected right. Why would the loss of that right as a result of the inability of the jury to continue logically mean that the accused is good to go without one? Why incentivize a change which should not occur for that reason? Why not, instead, permit a jury trial to continue with less jurors than presently permitted? It seems that this change as with the admission of routine police evidence, sworn but not tested through viva voceevidence, is for one reason only – expediency. 

I harken back to Justice Lamer’s comments on the role of expediency in criminal law in Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC)(at para 85). This decision is an early Chartercase on the unconstitutionality of an absolute liability regulatory offence where there is a potential loss of liberty through a term of imprisonment or probation. An absolute liability offence requires no proof of a mental element and is therefore, where there is a potential loss of liberty, contrary to the principle of fundamental justice, “from time immemorial”, that an innocent person not be punished (para 85). Justice Lamer recognized that administrative efficiency is the driving force behind such regulatory offences, as the regulatory regime could be enforced quickly and efficiently through proof of the prohibited act only. To climb into the mind of the regulatory defendant, often a corporate one, would prove to be too difficult and contrary to the overarching objective of regulation, which is protection of the public from unsafe regulatory practices. However, where a criminal law sanction is used, Justice Lamer opined that only in exceptional circumstances, such as “natural disasters, the outbreak of war, epidemics,” would such administrative efficiency “successfully come to the rescue” of such a breach of s 7 (at para 85). Otherwise, life, liberty and security of the person should not be “sacrificed to administrative efficiency” (at para 85). These sage words written thirty-three years ago still have meaning. The principles underlying the Charterand indeed “from time immemorial” cannot be thrust aside in circumstances where the government has alternatives or simply, in a rush to please, has not given careful consideration to those changes. The justice system may be bending under its own weight, but the answer is not to shore it up with a quick and easy fix.

The admission of “routine police evidence” in paper format, as mentioned earlier in this post, serves as another prime example of the government giving all due consideration to administration without considering the rationale or “end game”. Presently, through our rules of evidence, we can make judicial or formal admissions at a criminal trial pursuant to s 655 of theCriminal Code. The section reads very broadly and confers a discretionary right on the defence to “admit any fact ... for the purpose of dispensing with proof”. Typically, such admissions are made in a written and signed agreed statement of fact or agreed admissions, depending on the nature of such admissions. They are often used to admit continuity of an exhibit which a police officer has seized in order to relieve the Crown and the officer from minute descriptive recitation of exactly where the exhibit was located at every point in time of the investigation. Such admissions can save court time and are efficient. They are to be used as indicated – to dispense with proof. This signals to all parties that if a fact is not admitted, the Crown must prove it. Easy and simple to use. Fair and efficient. Enter, the proposed s 657.01, permitting police evidence be admitted at trial in affidavit format. The first question to be asked is why? Why do we need such a paper heavy process when the accused already has the use of s 655?

Let’s go through a faux question and answer period to illuminate the point. The response to those “why” questions may be as follows: admissions under s 655 are formal and therefore binding and conclusive. The new proposed section permits admissions of fact informally, permitting the accused to lead evidence contrary to those affidavit facts, leaving the trier of fact to make the final determination of the issue. I see. Good point. However, so the response may be, if this form of evidence is to be treated like all evidence, in that it is subject to the assessment of the trier of fact, then what exactly is the point? Aha. Clever. But, the responder responds, the point is to relieve the police officer from attending court. A police officer’s attendance, if not required, costs the government time and money. Oho, is the response to that salvo. So, the reason for this is administrative efficiency. Not quite, is the response. An accused can also request an officer attend. Really? So, says the responder. So now the burden is on the accused to speak up and ask for an officer to attend court, to give evidence as is his or her duty, and to present themselves for cross-examination only upon request despite the principles engaged in full answer and defence. When once the status quowas the Crown shouldering the responsibility to present in court testable evidence as part of their obligation to prove guilt beyond a reasonable doubt, now the accused must request it. What was a given is now a discretion. Another point in time for the possible exercise of judicial discretion. Another addition to the now enhanced gatekeeper function of the trial judge. Another point in time where a self-represented accused might be overcome by an overly cumbersome process. Hmm. This seems awfully familiar. Isn’t this what happened to the preliminary inquiry? Once it was a default position to have one unless the accused waived it. Then, it became a request. Now, it will be virtually gone, but for exceptional penalty circumstances. But this is mere process – relax, is the final word from the government. The final response may be – look at what happened with expert evidence – complacency in its admission and a failure to test the evidence resulted in miscarriages of justice until courts were forced to recalibrate the focus. 

Finally, we have the Charter statements on these new amendments so crucial to the governmental approach. These statements, according to the government website on the issue, “are intended to provide legal information to the public” on “some of the key considerations that inform the review of a proposed bill for consistency with the Canadian Charter of Rights and Freedoms.” In this instance, the government provides justifications for the amendments, couched in Charter speak, relying on a broad range of rights, such as s 7 in its various forms, the s 11(b) right to a trial within a reasonable time, the s 11(d) presumption of innocence, and the right to equality under s 15. However, when viewing the admission of “routine police evidence,” for instance, this concern for the Charter feels ingenuine. Despite the government’s Charter statementsto the contrary, a sacrifice of one Charterright, such as limiting s. 7 full answer and defence, for another Charterright, such as using administrative expediency to temper s. 11(b) unreasonable trial delay, is not consistent with the spirit and vision of the Charter. Balancing may be needed but balancing requires a proper weighing of these rights in light of our case law. As Justice Iacobucci remarked in the majority decision in R v Oickle, [2000] 2 SCR 3, 2000 SCC 38 (CanLII), the Charterrepresents the “bare minimum below which our law must not fall” (at para 31). Indeed, “the Charter is not an exhaustive catalogue of rights” (para 31). From “time immemorial” we have assiduously protected due process rights as a reflection of our rule of law. Our government may want us to accept the bare minimum but we in Canada deserve more. We see the government’s attitude in those carefully crafted Charterstatements, which on the surface advance transparency but are so carefully polished, they reflect rather than reveal. Self-serving in nature, these statements publicly maintain the proposed changes are consistent with or advance Charter rights, but it is more by the saying that these changes do this than by the fact they truly do. In other words, by saying so, the changes become so. So, it is written, so it is or must be. Whether written in stone or merely on paper, those statements should not be the outward public face of these changes. Again, Canadians deserve better – we deserve to hear the rationales and the potential outcomes. Hear it, not find it in the trail of papers.

(with thanks to the ABlawg team for editing this piece)

Episode 53: The Ideablawg podcast on s. 58 of the Criminal Code of Canada – The Good Citizen

In this episode, we are continuing our discussion of identity fraud and theft type offences. This particular offence involves documentation which confers status of citizenship on the subject holding the document. Section 58 involves the fraudulent use of such a certificate of citizenship or naturalization.

The section reads as follows:

58 (1) Every one who, while in or out of Canada,

(a) uses a certificate of citizenship or a certificate of naturalization for a fraudulent purpose, or

(b) being a person to whom a certificate of citizenship or a certificate of naturalization has been granted, knowingly parts with the possession of that certificate with intent that it should be used for a fraudulent purpose,

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

(2) In this section, certificate of citizenship and certificate of naturalization, respectively, mean a certificate of citizenship and a certificate of naturalization as defined by the Citizenship Act.

The section uses similar language to the previous section 57 in that it applies to all those committing the offence while in or outside of Canada thereby extending the reach of our sovereign authority beyond Canadian borders. Unlike section 57, a section 58 offence does not involve the making or forgery of the document but the giving up of possession or the use of a citizenship document for a fraudulent purpose. This prohibited conduct of use is not as egregious as the creation of a false document under s. 57 as is suggested by the maximum punishment for this offence of two years imprisonment. However, the s. 58 offence is certainly more serious than the offence of making a false statement in relation to a passport under section 57(2), as section 58 is a straight indictable offence while 57(2) is a dual offence.

The documents in question – certificate of citizenship and certificate of naturalization – are defined as per the Citizenship Act. That Act, also of federal origin, is a statute conferring the right of Canadian citizenship on those individuals who attain that status pursuant to s. 3 of the Act. Indeed, there are only three sections to the Act, with s. 3, the application section, containing 24 subsections. Section 3(1) is one of the few sections I have seen which are a drafters’ paradise with the generous use of clauses, sub-clauses, and paragraphs such as in s. 3(1)(f)(i)(A). Needless to say, it is not the clearest of drafting.

To return to the certificates in question in s. 58 of the Criminal Code, the definition of the certificates under s. 2 of the Citizenship Act is not of much assistance. In accordance with that section, “certificate of citizenship” means a certificate of citizenship issued or granted under the Act or the former Act and “certificate of naturalization” means a certificate of naturalization granted under any Act that was in force in Canada at any time before January 1, 1947. I assume that the authorities would simply know the document when they see one.

The offence, as mentioned previously, involves the use of those documents for a fraudulent purpose or knowingly “parts with possession” of the certificate with the intent it be used for a fraudulent purpose. The offence, through the use of the terms “fraudulent,” “purpose,” “knowingly,” “possession” and “intent,” requires proof of a high level of mens rea. One cannot commit this offence through recklessness.

The offence has been in the Criminal Code since 1938 being an offence, as with s. 57, responding to the vagaries of pre-World War II Europe and the waves of immigrants trying to find a safe haven through whatever means possible. As I discuss in the previous podcast on s. 57, the Canadian government’s stand on the immigration “problem” was itself a casualty of the war as persecuted people were refused entrance into the country.

According to a series of British Columbia Court of Appeal decisions interpreting the phrase “fraudulent purpose,” the term “imports dishonesty in accord with community standards” as per R v Gatley, 1992 CanLII 1088 (BC CA), R. v. Long (1990) 1990 CanLII 5405 (BC CA), 61 C.C.C. (3d) 156 (B.C.C.A.), and R v RND, 1994 CanLII 403 (BC CA).

The importance of the section having extra-territorial reach cannot be underestimated. In the 1966 Ontario Court of Appeal decision of Regina v. Stojadinovic; Regina v. Stanojevich, the accused persons, who were facilitating the illegal entry of another person into the United States with the use of a fraudulent certificate of citizenship were acquitted on appeal as the then section did not pertain to an accused committing the offence while outside of Canada. In that case, the two accused planned an illegal entry into the United States but the individual to be sent was otherwise legally in Canada. Mere preparation was not itself fraudulent use per the section requirements. This decision followed earlier cases, in particular the decision of R v Walkem (1908), 14 C.C.C. 122, in which Justice Clement of the British Columbia Supreme Court concluded that “what takes place abroad cannot, in the eye of our law, be an offence against our law (unless indeed made so by statute)." This sentiment follows an even older English decision by Lord Chief Justice de Grey in Rafael v Verelst (1776), 2 W. Bl. 1,055 at p. 1,058 where he states that "Crimes are in their nature local, and the jurisdiction of crimes is local." After the 1966 decision, the section was amended in 1968 to ensure that the offence applied to “every one who, while in or out of Canada.”

The phrase in s. 58(1)(b) “parts with possession” is only found in two other sections of the Code pertaining to property; theft under section 322(1)(c) and section 390 an offence relating to fraudulent receipts under Bank Act. This phrase has a property-related meaning. The phrase is in fact common in landlord and tenant disputes involving “parting with” premises under a lease agreement. This “parting” can occur through bankruptcy or assignment (See Bel-Boys Buildings Ltd. v. Clark, 1967 CanLII 533 (AB CA)) and is akin to sub-letting the premises. However, such parting does not grant the person a right to hand over the premises with tenure. By using this term in defining the offence under s. 58, the handing over of the certificate to another person need not be permanent but can be only for a limited period and yet still be subject to s. 58.

Outside of the Criminal Code, there are other measures the government can take when faced with the misuse of citizenship documents such as refusing the issuance of a passport pursuant to the Canadian Passport Order, SI/81-86 or revoking or canceling fraudulent certificates of citizenship. The use of the Criminal Code provisions are therefore not the only response to this type of conduct but is an expression of the state’s desire to control and protect the status of citizenship through the criminal law.

 

 

 

 

 

 

Keeping up with the Joneses in the Supreme Court of Canada: The Triumphal Return of the Presumption of Innocence

In addition to the criminal, evidence and advocacy courses I teach, I also teach 1Ls Legislation. Statutory interpretation looms large in that course. One of the analytical tools used in interpreting a statute, albeit in the context of the modern approach, is the concept of absurdity. If the plain reading of the statute would result in an absurdity, then the Courts will look for other interpretations consistent or harmonious with the context and scheme of the Act. Absurdity is a powerful interpretative tool and fits nicely in the legal trope: Law is reasoned and reasonable. It is also logical and helpful. Law is not absurd. This concept of absurdity transcends statutory interpretation and is an overarching principle of law generally. The proper response to Dickens’s Mrs. Bumble should therefore be: the law is not “a ass.” With the recent release of R v Jones, the Court clears up a true absurdity or as Justice Côté for the majority puts it, a “catch-22” situation, relating to whether Jones has standing to argue the Charter issue. Better yet, the Supreme Court clears up this concerning conundrum with the powerful and triumphal use of the presumption of innocence. This summarizes in a nutshell why the recent Supreme Court decision in Jones is a welcome addition to s. 8 case law.

The decision does not have the powerful punch found in the companion decision of Marakah, but it has “legs.” What is this “major major” issue? Put simply, according to previous case law (R v Edwards, 1996 SCC), in order to engage a justiciable Charter issue, the accused must establish a reasonable expectation of privacy (REP) in relation to the thing seized. It must be remembered that s. 8 protects people not places or things. The purpose of the right to be secure from unreasonable search and seizure is to maintain an acceptable societal balance between an individual’s right to be free from state intrusion and the state’s need to intrude into an individual’s private life to maintain public safety and law enforcement. This “push-me pull-you” sense of balance is constantly being recalibrated by the courts in an effort to protect core democratic values underlying the Charter. This recalibration cannot be done in a vacuum but within the context of what currently matters to us as a society. In our courts, context is everything: from the meta-analysis of statutes as found in the modern approach to statutory interpretation to the specific flexibly-applied factors in the REP analysis. In order to argue REP, the accused must be literally or metaphorically standing in ground zero or in the circle of impact. If outside this Charter imbued impact zone, the accused cannot be aggrieved and cannot argue for exclusion of the evidence under s. 24(2).

Typically, it is not difficult to draw a circle of impact around the accused, particularly if the search or seizure are items personally connected to the accused. What does raise standing difficulties is where identity or ownership is in issue. Here’s the rub: once you admit you have standing, as in “you are the person sending the text messages about trafficking in firearms,” you cannot ethically suggest at trial “you are not the person sending the text messages about trafficking in firearms.” This Schrödinger’s cat-like conundrum requires counsel to make tactical decisions which may chip away at an accused’s right to make full answer and defence. The accused by taking the “not me” position is in essence giving up the right to argue a Charter violation. The Jones decision thankfully challenges that presumption and fixes it.

First, let’s start our analysis with the Edwards decision. In that decision, the majority, authored by Justice Cory, were less than impressed with the accused’s position on appeal, which was markedly different than at trial on the issue of ownership. The accused at trial testified that the drugs found in a third-party’s apartment were not his drugs. That position was maintained in the appellate court. It was only in the Supreme Court of Canada that the accused changed a “fundamentally important aspect of the evidence” in admitting that the drugs were indeed his property. This could not be countenanced as by changing the position the Appellant was relying on a different aspect of the REP, namely privacy in the drugs as opposed to REP in the apartment where the drugs were located.

In Jones, the situation was different. The accused did not lead any evidence he was the author and sender of the message. Instead, the defence relied on the Crown’s “theory” that the accused was the author and sender. The application judge found the accused could not rely on speculative “evidence” and therefore he had no standing to raise the s. 8 issue. But, as mentioned, how else could the defence advance a pressing Charter argument without compromising the defence? A legitimate goal of a trial is to put the Crown to the test of its case and to require the Crown prove all essential elements of the offence beyond a reasonable doubt. One of those elements is identity of the owner of the illegal item. If identity is in issue, the defence cannot “have its cake and eat it too” by arguing in the alternative. Once an admission is made on an essential element such as identity of the owner, it is an admission of fact that cannot be admitted for limited purposes only. Law, ethics and the Charter prohibit such a paradoxical stance.

Justice Côté recognizes the unfairness inherent in the standing paradox and soundly rejects the absurdity of the outcome. At paragraph 19 she approves of the defence’s reliance on the Crown’s theory as a foundation for the Charter argument and leans on a purposive, normative approach to the paradox. This approach involves two strands invoking the low hurdle required to overcome the subjective component of the REP analysis and invoking the Charter itself.

First, some background on the REP factors, which are situated in and viewed through the factual circumstances of the case. The factors are a tailored-made, come-as-you-are assessment. Yet, it is an assessment that must be nestled in the social fabric. In a previous blog posting (also a podcast!) on s. 6 of the Criminal Code – the codification of the presumption of innocence – I alluded to the golden thread metaphor of that presumption. That concept of the golden thread, arising from Lord Sankey’s decision in the Woolmington case, maintains the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt by conceptually weaving the presumption of innocence into our social fabric. Similarly, Justice Côté’s solution to the standing paradox connects back in web-like fashion to the presumption of innocence. It does so through an acknowledgment of the generous interpretation of the REP factors as normative ones and through the protective nature of the Charter right against self-incrimination under s. 13.

The nexus point for these justifications to permit an accused to have section 8 standing even where they deny connection to the offence is that golden thread of innocence. It is nice to see its triumphal return as a recognition of the normative values we hold. It is also an essential reminder that at the heart of the REP analysis is the preservation of those societal values. In many ways, section 8 principles and the section 8 analysis of those principles serve as a perfect view into the justice system with the golden thread as the ultimate symbol of why the right of the state to intrude into our lives must be tempered by the right of an individual to be free from such intrusion.

 

Episode 52 of the Ideablawg Podcasts on the Criminal Code of Canada: The “Go Everywhere” Offence Under Section 57 (text version)

In the classic Jules Verne novel of 1873, Around the World in Eighty Days, the adventurer, Phileas Fogg, and his trusty side-kick, Jean Passepartout, race across the globe. There are many ways to “read” this text, such as a construct of British colonialization or as a “love letter” to the technological and scientific advances of the day.  For our criminal law purposes, however, we will think of this globe-trotting journey as setting the stage for the next section of the criminal code creating the offence of forging a passport. Specifically, I want us to imagine such a journey in modern terms and the strict requirement for entry into foreign countries. The importance of having a passport cannot be underestimated, not just for entry purposes, but as a symbol of belonging. This is a stark reminder of the refugees’ displacement and the vital need for an effective, efficient, and compassionate immigration regime. But I digress. I also want us to be mindful of the translation of the valet’s surname, Passepartout, which means “go everywhere.” A passport, like a pass key, opens doors and is a commodity in our global market.

Section 57 of the Criminal Code is a multi-purpose section. It protects personal identity, protects nationhood, has an international reach, and punishes falsehoods. It is a section that crosses the criminal equivalent of the “international date line” as it is both private and public in aspect. It involves individual privacy rights, public security and engages international obligations. It involves diplomacy and enforcement of the law. The section creates five different but related falsifying of passport offences. Subsection (1) is a forgery and uttering offence. Subsection (2) is a procuring offence relating to obtaining a falsified passport. Subsection (3) is a possession offence.

Section 57 reads as follows:

57 (1) Every one who, while in or out of Canada,

(a) forges a passport, or

(b) knowing that a passport is forged

(i) uses, deals with or acts on it, or

(ii) causes or attempts to cause any person to use, deal with or act on it, as if the passport were genuine,

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

(2) Every one who, while in or out of Canada, for the purpose of procuring a passport for himself or any other person or for the purpose of procuring any material alteration or addition to any such passport, makes a written or an oral statement that he knows is false or misleading

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

(3) Every one who without lawful excuse, the proof of which lies on him, has in his possession a forged passport or a passport in respect of which an offence under subsection (2) has been committed is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(4) For the purposes of proceedings under this section,

(a) the place where a passport was forged is not material; and

(b) the definition false document in section 321, and section 366, apply with such modifications as the circumstances require.

(5) In this section, passport has the same meaning as in section 2 of the Canadian Passport Order.

(6) Where a person is alleged to have committed, while out of Canada, an offence under this section, proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

(7) For greater certainty, the provisions of this Act relating to

(a) requirements that an accused appear at and be present during proceedings, and

(b) the exceptions to those requirements,

apply to proceedings commenced in any territorial division pursuant to subsection (6).

Before we discuss the section, a little bit of historical context is worthwhile. The first version of this offence went into the Criminal Code in 1935 Code amendments and was a procurement offence involving a passport and a visa. Note the timing as a measure implemented basically on the eve of war. Only four years later, in 1939, the steamer St Louis would be turned away by the Canadian government to return to Nazi Germany and almost certain death. It is no doubt a response to the desperate attempts to get out of pre-World War II Europe. In 1947, some two years after the end of World War II, the section was again revised to include a definition of passport. In the 1953-54 amendments, the section was again revised, this time adding to the section the forgery and uttering offence and the possession offence. The revised section clarified that the offence could be committed while the accused was in or out of Canada. In 1985, some procedural aspects were added to the section. The section was last revised in 2013 to define passport pursuant to the section 2 definition of the Canadian Passport Order. That definition of passport or in French, passeport, “means an official Canadian document that shows the identity and nationality of a person for the purpose of facilitating travel by that person outside Canada.”

We will first discuss the five offences created in section 57. The first offence under subsection (1)(a), creates a forgery offence in relation to a passport, forged in or out of Canada. The offence, therefore, should be approached as a traditional forgery offence with reference to the general offence of forgery pursuant to s. 366 of the Code. The Crown would need to prove as part of the actus reus components of the offence that the document is in fact a passport pursuant to the definition offered under subsection (5). In terms of proof of the forgery itself, another actus reus requirement, requires a review of the forgery section 366. That section essentially defines forgery as the making of a false document, knowing it to be false and intending the document be “used or acted on as genuine” to the prejudice of another. Section 321, the definition section for Part IX offences, including forgery under s. 366, offers a definition of “false document” which is then extended under section 366(2). Section 57(4) uses this definition of “false document” in proof of the forgery of the passport, with necessary modifications. What those “modifications” may be must be informed by the specific forgery at hand, namely a passport, and as informed by the definition of passport pursuant to subsection (5). Section 57(5) also clarifies that where the forgery was actually performed need not be specifically proven by the Crown. In terms of mens rea, it is clear by a reading of section 57 and by the application of s. 366 to the proof of forgery that the section requires proof of a high level of subjective intention.

The second offence is related to the forgery and is found under subsection (1)(b)(i). It is what we would historically call an uttering offence, requiring the accused, knowing the passport is forged, “uses, deals with or acts on it.” The offence parallels the general uttering a forged document section 368(1)(a). I label this as an “uttering” offence as when looking in the index of the Code for offences relating to forgery, “uttering a forged document” is listed under s. 368. Uttering is defined under section 448 in the Code but for purposes of Part XII relating to offences to currency. That definition of "utter" extends the traditional meaning of “uses, deals with or acts on it” by including as including “sell, pay, tender and put off.”  An argument could be made that those prohibited acts of “sell, pay, tender and put off” are not included in the offence as contemplated under s. 57(1)(b). Again, the offence requires a high level of subjective mens rea as read into the requirement the accused must have knowledge the passport is forged. The third offence under s. 57 (1)(b)(ii) is an offence, that again, appears in its general format under s. 268 and requires the accused, knowing the passport is a forgery, “causes or attempts to cause any person to use, deal with or act on it, as if the passport were genuine.” The only other offence for which the delict is so worded, is the offence under s. 246 involving the administration of a stupefying drug to overcome resistance to the commission of an offence. Of note, is the “attempts” to cause, thus the full offence can be committed based on an attempt.

For the offences of forgery, uttering and causing or attempting to cause another person to utter the forged document, the maximum sentence is imprisonment for 14 years. Both forgery and uttering under sections 366 and 368 respectively are dual offences with the maximum punishment for both, should the Crown elect to proceed by Indictment, of ten years. Clearly, the forgery of a passport, for national security and state integrity reasons, is considered a more serious offence.

The fourth offence created under s. 57 relates to someone making a false or misleading oral or written statement, while in or out of Canada, for purposes of procuring a passport for themselves or another person or for the purpose of altering a material aspect of the passport. This is a less serious dual offence where the maximum punishment under indictment does not exceed two years imprisonment, thus keeping even the worst offender in the reformatory, rather than the federal penitentiary, system. Again, it could be argued that by the use of the word “for the purpose,” the Crown must prove per R v Hibbert a high level of intention by the accused. The Crown must also prove, if the allegation involves altering or adding to the passport that it must be a change to a material aspect of the passport. This parallels the definition of false document under s. 366(2) where a false document includes “making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.” What is “material” would be a question of fact. The phrase “material alteration” is a term often used in civil cases on such as sale of goods or in an action for default of a mortgage where a materially altered document by one party without the other party’s consent is considered void. In the 1909 Saskatchewan Queen’s Bench decision of Gogain v Drackett, 1909 CanLII 97, the court applied the definition of “material alteration” from the 1903 Cyclopedia of Law and Procedure published in the USA and edited by Julian William Mack, an American law professor, lawyer and jurist, and Howard Nash. In that tome, “material alteration” is defined as “Any change in an instrument which causes it to speak a different language in legal effect from what it originally spoke—which changes the legal identity or character of the instrument either in its terms or in the relation of the parties to it, is a material change, or technical alteration, and such a change will invalidate the instrument as against all the parties not consenting to the change.” But “It is not every change which will invalidate an instrument, but only a change which is material according to the principles above stated. In other words, any change in words or form, merely even if made by an interested party which leaves the legal effect and identity of the instrument unimpaired and unaltered, which in no manner affects the rights, duties or obligations of the parties and leaves the sense and meaning of the instrument as it originally stood is not material and will not destroy the instrument or discharge the parties from liability thereon.” Therefore, a material change occurs when the change would affect the rights and obligations of the parties.

The fifth offence under subsection (3) is a possession offence relating to possessing a forged or materially altered or falsified passport. Possession, pursuant to s.4(3), requires proof the accused has knowledge, consent and control of the object and requires proof of a high level of mens rea. This is a straight indictable offence with a maximum of five years imprisonment. A similar offence for possessing a forged document under s. 368 is a dual offence, whereby the prosecutor can proceed by summary conviction if by Indictment then the maximum is ten years.

The final comment is on subsections (6) and (7), which relate to the extraterritorial jurisdiction of the offence. If the person committed the offence out of Canada, the person may be charged, tried and punished for the offence in any territorial jurisdiction of Canada even if they are still out of Canada at the time of the proceedings. The section is therefore aptly named, the “go everywhere” offence and is reflective of the global reach of our criminal law.

 

 

 

 

 

 

 

Confidential Informant: A Creation Story

We are all conversant with a creation story, be it biblical or cultural. We are less apt, however, to recite a purely legal creation story, where the law is not in itself created but creates. In the decision of Her Majesty The Queen v Named Person A, 2017 ABQB 552, Madam Justice Antonio applies the law and in doing so creates a legally constructed status, as confidential informant, for Named Person A [NPA]. The effect of the law or the privilege that arises, requires NPA’s identity be strictly protected and non-disclosable, subject to the “innocence at stake” exception. This is a status which NPA neither wants nor asks for. Once NPA became this pronounced creation of law, NPA became nameless. The discussion we will undertake will provide us with the ultimate creation story of how certain encounters can transform into a creation of law. With that transformation, comes the full force of the law as legal principles must be and are rigidly applied. The preliminary issue of whether NPA was, in law, a confidential informant is incredibly important. If NPA is not such an informant then the issues flowing from this status are moot. If, however, NPA is a confidential informant, then the court must decide how the Crown can fulfill its Stinchcombe obligations requiring full disclosure of NPA’s criminal file to NPA’s counsel without violating the sacrosanct confidential informant privilege. To disclose or even to edit the disclosure would reveal NPA’s identity. To not disclose would run afoul of NPA’s right to full answer and defence. Alternatively, if NPA’s defence counsel is within NPA’s confidential “circle of privilege,” then disclosure may be made within the safety of that legal privilege. This posting considers the initial decision by Justice Antonio to find, in law, NPA is a confidential informant. It is this finding which engages the law and which matters most to NPA.

First, we will start with a narrative, which is not particularly exceptional. NPA was arrested on various criminal charges. Subsequently, NPA was approached by police officers from the “human sources” unit, who handle police informants, also known as “handlers.” These handlers had been following NPA’s investigation and believed NPA could provide them with useful information to assist the police in other investigations. To induce NPA to be an informant, the handlers offered NPA the usual terms: the handlers “promised” to keep A’s status confidential; NPA, as a “volunteer,” could stop providing information at any time; and NPA was “prohibited” from disclosing the status. On this basis, according to one of the handlers, NPA agreed to be an confidential informant. Notably, there were no promises relating to his outstanding charges (paras 16 to 19).

NPA saw the “relationship” differently. NPA “never wanted” (para 27) to become a confidential informer, although NPA did give the handlers information. In other words, NPA agreed to the “informant” part but not the “confidential” moniker. Consistent with this perception, NPA immediately breached the “terms of the contract” (para 25) by “self-outing” as an informant. NPA told people of his encounter with the handlers. NPA told the police officers investigating his criminal charges and NPA told NPA’s defence lawyer. Justice Antonio does not speculate on why NPA did this, other than to confirm that NPA did not reveal the status as a ploy to force the hand of the Crown in staying the charges (para 79). We, however, can speculate that NPA might have revealed the status thinking there would be some sort of benefit from co-operating with the authorities. For instance, an agreement to plead to reduced charges for a reduced sentence. As insightfully suggested by Justice Antonio, “the police must take [NPA] as they found [NPA], existing charges and all” (para 79).

As a result of the disclosure by NPA, NPA was promptly “terminated” (para 21) as a confidential informant. This “termination” did not affect NPA’s legal status as a confidential informant. Borrowing from the lyrics to Hotel California, NPA could check out any time, but could never leave. Whether this sentiment was made clear to NPA is questionable (para 26). Despite this lack of clarity, Justice Antonio found NPA to be a confidential informant with all the “associated privileges and obligations” (para 25). I would add that those “privileges and obligations” flowed from a legal construction or legally imposed view of NPA’s brief interaction with the handlers. Moreover, once that legal principle was engaged, it was required to be applied in a “nearly absolute” manner (para 37). A few minutes in an interview room, gave NPA status close to an “officer of the court” (para 41).  It is doubtful whether NPA viewed the conferred status as anything but an albatross around the proverbial neck. Something imposed as opposed to something welcomed. As succinctly stated by Justice Antonio, “the role of a confidential informant is a creation of law enforcement, and the privilege that attaches to it is a creation of the common law” (para 41). In this creation story, NPA has a minor role indeed.

Notably, NPA’s counsel did not provide much argument or authority for the position NPA was not a confidential informer (para 23). In concluding that NPA was indeed a confidential informant in fact and in law, Justice Antonio applied the “test” from R v Basi, [2009] 3 SCR 389, 2009 SCC 52 (CanLII). The issue in Basi differed from NPA’s situation. In Basi, the Court was struggling with how a confidential informant could have counsel on a hearing to determine informant privilege when such representation would include disclosing the confidential informant status contrary to that limited and rigidly enforced “circle of privilege” that necessarily includes the handlers and the prosecutor but no one else. Justice Fish, at paragraph 36 of Basi, explained that the status as confidential informant arises when “a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain.” The question of whether the person is a confidential informant is a legal one and the judge must be satisfied of that status on a balance of probabilities (Basi at paragraph 39).

Another decision, Justice Antonio referenced to assist in the “status” hearing was R v Barros, [2011] 3 SCR 368, 2011 SCC 51 (CanLII). In Barros, the issue centered on the scope of the confidential informant privilege and was not focussed on the initial finding of that privilege. As a prelude to that main finding, Justice Binnie, on behalf of the majority, reviewed the purpose of the privilege itself.  It is important to keep in mind, Justice Binnie’s sentiment at paragraph 31 that “of course, not everybody who provides information to the police thereby becomes a confidential informant. In a clear case, confidentiality is explicitly sought by the informer and agreed to by the police.” Justice Binnie then quotes the previously referred to “test” from Basi.

Although both Justice Binnie (para 32) and Justice Antonio (para 25) refer to the “contract-type elements of offer and acceptance” as evidence of the status, confidential informant privilege, as a creature of the law, “was created and is enforced as a matter of public interest rather than contract.” The public interest as outlined by Justice Binnie at paragraph 30, involves the incentives for those in the know to provide information to those who don’t to assist in the goals of public safety and law enforcement (See also Bisaillon v. Keable, [1983] 2 SCR 60, 1983 CanLII 26 (SCC), Beetz J. at page 93). By providing a safe “place” where these vital conversations can be done in the context of an atmosphere of protection is the underlying purpose for rigidly enforcing the privilege once it attaches. This public interest aspect assumes two premises: that the informant wants the protection and that the public interest has no interest in the impact such a status would have on the informant. The Basi “test” does not allow for a reluctant informant nor does it concern itself with the implications of the confidential informant status on an individual. The incentive is to promote law enforcement, which is a valid and convincing objective we all applaud. However, the “test” as fashioned does not encourage the police to fully inform the potential confidential informant of the true implications of the privileged status which will, not might, flow from the agreement. As noted by Justice Antonio at paragraph 26, when the handlers “ended Named Person A’s tenure as an informant, Officers X and Y used final-sounding language that might easily have led him to believe that every aspect of his short-lived role was over and he would never hear about this again.” But not so, Justice Antonio continues, “for obvious reasons, confidential informant privilege persists after the informant’s active role has ended.” Sadly, the forever status is known to the legal segment of society but not so obvious to people like NPA. These realities reveal a weakness in the Basi test as it fails to see beyond the protective veil which flows from the confirmation of the status as confidential informant. Rather, such status is derived from a moment in time when NPA speaks without appreciation of the repercussions which will come in the name of public interest.

To be fair, Justice Antonio is also concerned with NPA’s protection. Although NPA “never wanted to be a confidential informer” (para 27), NPA is “fearful of one person finding out,” namely the person he informed on. But this discussion in the decision comes after the confidential informant status is confirmed and forms part of the alternate issue on whether NPA waived his status. Waiver, presupposes status as a confidential informant.

Returning to the Basi test, it should be noted that the full test as articulated by Justice Fish requires the “useful information” to be given “would otherwise be difficult or impossible to obtain.” There is no discussion of this part of the test in Justice Antonio’s findings. Was this information “useful”? Was it “otherwise difficult or impossible to obtain”? The record is silent. Without inquiring into this aspect of the Basi test, confidential informant status can be conferred broadly by a handler who is “fishing” for information or testing out an informant’s reliability. It could be argued that without this requirement, status could be irrevocably conferred in a “offhanded way” (para 25). Leaving this phrase empty fails to serve the purpose of the informant privilege, which strives to not only encourage people to share information but also to encourage effective and efficient investigatory practices. Additionally, a more restrictive reading of the Basi test would encourage potential informants to give useful information in exchange for status. These informants, I would suggest, would be more prudent in entering into such an “agreement” and subsequently not so flippant or forthcoming with their confidential identity. It would also assist handlers in pre-screening potential informants, who may, as the Crown feared in the case at bar, “self-out” themselves purely for the purpose of forcing the Crown to withdraw any future criminal charges they may face (paras 73 to 81).

Confidential informant status has advantages and disadvantages as starkly seen in Her Majesty The Queen v Named Person A. The key to a robust and successful justice system is to provide protections and incentives for all those who play a role in it. The law of privilege once engaged is a hard-hearted companion as NPA ultimately became to appreciate. But, we, as purveyors of the law and as readers of this creation story should consider the effect of the law and how, within the confines of the Rule of Law, we can be part of that changing narrative. In this way, NPA’s personal story can inform further discussion on the future of the law of privilege in this area and whether, as with other traditional rules of evidence, it is time to re-consider the underlying logic of the rule in favour of a different, more responsive, approach. This creation story may indeed create another story about the law.

 

 

 

A Really Fun Episode 51 of the Ideablawg Podcasts on the Criminal Code of Canada: Official Documents & Identity, Identity, Who Am I?

With this episode, we enter a new phase of offences, still under Part II – Offences Against the Public Order, relating to official documents. “Official Documents” is the heading for three offences, found under sections 56.1 to 58, relating to misuse of and falsification of government issued identification. The term “official documents” is not a phrase used in any of these sections and is therefore not defined under the Code. It is however a phrase used and defined in some provincial statutes, such as in the Plant Health Act, RSNB 2011, c 204. Those definitions refer to a document signed by a Minister or other government official. Some federal statutes refer to the term but do not define the full phrase. Although, “document” is often defined in statutes such as in the 2012 federal Safe Food for Canadians Act. These definitions tend to be very broad and define “document” as “anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked.” Other statutes, most notably as under section 5 of the federal Security of Information Act, refer to “official documents” in sections on falsification and forgery of documents, which are similar to the Criminal Code offences we are about to discuss over the next three episodes.

Before we start discussing section 56.1, offences relating to identity documents, I have a comment to make on the numbering of this section. This section was placed in the Code in 2009 as a result of An Act to amend the Criminal Code (identity theft and related misconduct), where a number of new offences and revisions to pre-existing Code provisions were amended. Fair enough. My issue is why this section needed to be numbered as 56.1 and not say, section 57.1, which would connect this new section to the falsification or improper use of documents. Section 56, as I discussed in a previous episode, concerns offences relating to the RCMP as in deserting from your duty. It has nothing to do with official documents or identity. When the Code is amended, numbering should consider placement with like sections. This is another reason, I submit we need a total re-do of the Code, section numbering and all. I say this even though I have such a familiarity with Code sections that a new numbering system would be disarming. Enough said on this subject.

Section 56.1 offers us an offence under subsection (1), exceptions to the offence or what could be considered lawful excuses under subsection (2), and a somewhat lengthy definition under (3), and a punishment under subsection (4).

 Section 56.1(1) sets out the offence as follows:

Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.

The phrase “transfers, sells or offers for sale” is found in the older offence under s.368 “use, trafficking or possession of a forged document” which replaced previous versions of that section in the same amendment as the creation of the s. 56.1 offence. Possession is defined in the Code under s. 4(3) and is a subject of an earlier podcast that can be found here as text and here as the podcast audio file. The term “transfers” is used throughout the Criminal Code as an actus reus component of various offences such as those relating to firearms (i.e. s. 117.08) or relating to the transferring of nuclear material with intent such as under s. 82.3. The word “transfer” is the subject of statutory interpretation and the application of Dreidger’s “modern approach” in the 2004 Supreme Court of Canada decision of R v Daoust. Here the court was considering s. 462.31 known as the offence of “laundering” the proceeds of crime. The word “transfer” was examined both in English and in French (transfert) in effort to understand how “transfer” differed from the other prohibited acts listed in the section such as sends or delivers, transports or transmits. In the case, the accused was the purchaser of stolen goods and the issue was whether this act constituted a transfer.  Of interest to statutory interpretation aficionados is the use here of the associated words rule or noscuitur a sociis (say that quickly three times). After applying this rule, the court found that a buyer of stolen goods was not committing any of the prohibited acts under the section. The acts listed, including the “transfers of possession of,” depended on the person committing the acts having control over the stolen property or proceeds of crime. This person would then pass onto another the property and would be the person targeted in the offence, not the so-called receiver. However, the receiver could certainly be charged with other offences found in the Code such as possession of stolen property under section 354 of the Criminal Code.

Besides having to prove the actus reus element or the prohibited act as listed in the section, the Crown would also have to prove that the item is in fact an identity document per the definition under subsection (3) which reads as follows:

For the purposes of this section, identity document means a Social Insurance Number card, a driver’s license, a health insurance card, a birth certificate, a death certificate, a passport as defined in subsection 57(5), a document that simplifies the process of entry into Canada, a certificate of citizenship, a document indicating immigration status in Canada, a certificate of Indian status or an employee identity card that bears the employee’s photograph and signature, or any similar document, issued or purported to be issued by a department or agency of the federal government or of a provincial or foreign government.

That lengthy list of documents could probably be summed up as simply any government issued ID. Further to our previous statutory interpretation segue, note that there is a descriptive list of identity documents and then a broad description encompassing “or any similar document.” Again, the associated word rule could be used to interpret this phrase giving the general phrase “colour” from the more specific terms. Another related rule can also be applied– get ready for another Latin phrase – involving ejusdem generis or the limited class rule. This applies when there are specific terms followed by a more general phrase. The rule limits the general phrase to the same class as the specifically enumerated ones. In this case, one can argue, as I did at the outset that “any similar document” would include any government issued identification.

Another element of the offence requires that the accused commit the offence “without lawful excuse.” There is no definition of this term, which is used liberally throughout the Criminal Code. In a search, the phrase pops up about 53 times. What constitutes a “lawful excuse” is many and varied. Typically, in cases considering the issue, the court says just that. For instance, in R v Osmond, 2006 NSPC 52 (CanLII), in considering s. 145(2)(b) of the Criminal Code, the offence of failing to appear in court, “without lawful excuse,” stated, rather unhelpfully at paragraph 45, that,

I do not need to list all the types of things that could constitute a lawful excuse.  The Crown referred to some possibilities in its submissions.  What can constitute a lawful excuse is usually established by judicial decisions and must be put in the context of the offence in question.

Judge Embree continued to say that what “lawful excuse” is “definitely” not is “forgetting” to attend court. In the context of this section, if the person “lawfully” has the government issued ID of another person or has it for a “lawful” purpose, there is no offence. To perhaps clarify this phrase, we can look to subsection 2 for some “lawful excuses” as contemplated by subsection 1. Subsection 2 reads as follows:

(2) For greater certainty, subsection (1) does not prohibit an act that is carried out

(a) in good faith, in the ordinary course of the person’s business or employment or in the exercise of the duties of their office;

(b) for genealogical purposes;

(c) with the consent of the person to whom the identity document relates or of a person authorized to consent on behalf of the person to whom the document relates, or of the entity that issued the identity document; or

(d) for a legitimate purpose related to the administration of justice.

There are a couple of items to note. First, the subsection starts with the qualifier “for greater certainty.” This phrase appears 48 times in the Criminal Code. Sometimes the phrase is followed by exceptions to the offence, such as in this section we are considering. Other times, it clarifies what act is included in the offence, such as in the definition of terrorist activity under s. 83.01. Therefore, in accordance with (2), we have a few scenarios to contemplate as not attracting criminal liability. Such as under (2)(b), where the possession of another person’s identity document is permissible if for “genealogical purposes.” What immediately comes to mind are the various websites which provide services to those people interested in finding information on their ancestors, such as ancestry.ca. For example, I have my grandfather’s identity documents issued when he entered the country as an immigrant from Russia in 1912. I found them, by the way, digitized online through Library and Archives Canada, a federal government service. However, this “exemption” and indeed this section does not protect the possession and use of another person’s DNA. Considering the now booming business in collecting and testing DNA for those “inquiring minds” who need to know what percentage of their DNA is Neanderthal, this seems to be a gap in our legislative identity protections. In light of this, section 56.1 seems to be already dated, although a good example of how quickly our technology is expanding and the difficulty with our laws to anticipate or even respond to these increasingly complex issues.

Returning to the original phrase “without lawful excuse,” there is a question as to whether the Crown has the burden to disprove this as an essential element of the offence or not. This would be akin to the Crown’s burden to disprove “without the consent” pursuant to the assault section 265. There is some authority to the contrary (R v Gladue, 2014 ABPC 45 (CanLII) and R v Neufeld, 2014 ABPC 66 (CanLII)), that “without lawful excuse” is not an “essential” element but “incidental” to the offence. This argument, however, relies upon a passage in a Supreme Court of Canada case, R v B(G), [1990] 2 SCR 30, 1990 CanLII 7308 (SCC), wherein the Court found the time of the offence was not an essential element of the offence. This, I suggest, differs greatly from a phrase that appears in the offence creating section. The better approach can be found in R v Plowman, 2015 ABQB 274 (CanLII). There, Justice Nielsen, in considering the phrase in section 56.1, found “without lawful excuse” places an evidential burden on the accused, as a “defence” to the charge. Thus, the accused need only point to evidence on the issue to establish an “air of reality”, thus requiring the trier of fact to consider the evidence in determining whether the Crown has proven the case beyond a reasonable doubt. The legal burden remains on the Crown to disprove the lawful excuse beyond a reasonable doubt.

The next issue is what the phrase in the offence “another person” means and whether it must refer to a “real” person, living or dead. In R v Vladescu, 2015 ONCJ 87 (CanLII), whether the identity documents in question related to a “real” person, was the sole issue. The Crown’s evidence did not touch on this aspect and the defence, arguing that proof of this aspect was an essential element of the offence, urged Justice Watson to acquit. Employing, what I would suggest is a questionable approach to statutory interpretation by focusing on the “plain meaning” of “purport” and comments made in one Senate debate on the new section which referenced “fictitious” identity documents, the Court decided that the Crown did not have to prove that the identity document belonged to a “real” person. Justice Watson convicted the accused despite the cogent argument by the defence that the subsection (2) exceptions, particularly the reference to genealogical purposes, suggests a real person. However, the offence of identity fraud under s. 403 uses the phrase “another person, living or dead” which suggests that Parliament, by omitting the phrase “living or dead” did contemplate fictitious identity documents under s. 56.1. Either way, this is an issue open to argument at trial.

In terms of the fault element or the mens rea required for this section. As indicated earlier, one of the ways of committing this offence is by “possession”, which as indicated is defined under section 4(3) of the Criminal Code. Possession requires proof of a high level of subjective mens rea. However, if the Crown relies on the other modes of committing the offence such as transfer or sells, an argument can be made that the intention, although still requiring subjective liability, does not require the high level of mens rea needed for possession. Therefore, recklessness would be sufficient form of mens rea for those situations.

 Finally, it should be mentioned that subsection (4) sets out the possible penalties for committing the offence. Procedurally, the offence can be either an indictable or summary conviction offence and is therefore a dual or hybrid offence. This means the Crown has the option to elect the mode of proceeding. Although proceeding under indictment carries a longer maximum sentence of five years as opposed to the maximum of 6 months imprisonment (and/or maximum fine of $5000.00 if the accused is an individual). Of course, should the Crown elect to proceed by indictment then the accused would have an election to have a trial in either provincial court or in superior court, with or without a preliminary hearing and with or without a jury pursuant to s. 536(2).

 

The Creation of Community “Space” in Sentencing in R v Saretzky

The Saretzky case will live in infamy as a disturbing crime that defies description and understanding. In this post, I do not intend to engage in a classic case analysis of the sentencing proceeding, which has been the primary subject of media attention and legal commentary. Certainly, the legal issues raised in this case are of concern as we struggle to make sense of a crime so devoid of humanity yet committed by a person who will now spend seventy-five years in custody, essentially to the end of his days. Is it a crushing sentence which fails to recognize the possibility, no matter how faint, of rehabilitation? Or is mere speculation about rehabilitation an inappropriate, unsafe, and frankly impossible standard to apply? Leaving aside the application of recognized principles of retribution and denunciation, are we comfortable with the reality of this decision, the warehousing of an individual who is a legitimate and continuing threat to society? Should the law be a “beacon of hope” or does “hope” go beyond legal expectations? Although we like to believe that hard cases make bad law, in fact, hard cases force us to look squarely at the worst scenario almost as a litmus indicator to test the strength and flexibility of applicable legal principles. In looking at Saretzky and Justice W. A. Tilleman’s reasons for sentencing, we can properly ask whether our sentencing principles and codified laws are up to the heavy task of assessing the worst case and the worst offender, the twin legal principles supporting the imposition of the maximum sentence.

The answer to all of this may require us to do some navel gazing and philosophizing that takes us outside traditional sentencing principles. It may also require us to explore whether there is a legitimate role in sentencing for the community. When I use the term “community,” I am not referring to bald public opinion as reflected on social media – that, as Justice Wagner cautioned in R v St-Cloud, 2015 SCC 27 (CanLII) at paras 80-84, is far from the considered and reasoned pronouncements of the law. No, community is not who has the most likes on Twitter and speaks the loudest on Facebook. Community or better yet the “community’s sense of justice” can be found in Justice Tilleman’s reasons in the Saretzky sentencing. Community bonds, communal mourning and healing all have a “space” in the Saretzky decision. It is my contention that the community’s place in the bounded space of the courtroom is connected to the judge’s now enhanced and expanded duty to protect the integrity of the administration of justice and to maintain trust and confidence in the criminal justice system. With this shift to community however, we must be ever mindful of our principles of fundamental justice which protect the individual offender as part of that community. We must rely on the delicate balance of sentencing to calibrate the scales of justice to ensure fair and just sentences.

In the first sentence, Justice Tilleman speaks through the offender to the community – not the community writ large but the community of Crowsnest Pass, a small district in southwestern Alberta with a population of a little over 5,500 people consisting of a string of even smaller communities, such as Frank, Blairmore, and Coleman, all hugging Highway 3 as it winds through the pass and into the British Columbia Rockies. It is a small community with big history. It is a community with memory of disaster. It was here in 1903 where the tip of Turtle Mountain tumbled into the town of Frank thereby defining a community through devastation and loss. It is here that Canadian opera found a voice in the tragic story of Filumena, a young woman convicted of the murder of an RCMP officer during the prohibition era. This and many other stories create the community, the community which Justice Tilleman addresses nineteen times throughout the sentencing reasons. These are the people of Crowsnest Pass whom Justice Tilleman, before asking Derek Saretzky to stand for the imposition of sentence, encourages to heal and move forward. He encourages them to “rebuild” and recreate another iteration of themselves as community, an image not defined by inexplicable tragedy (para 58).

Community also speaks to the offender in this decision. The jury of peers, charged with the difficult and awesome task of determining guilt or innocence, are representative of the shared community of the offender and the victims. It is through the jury process that community members, utilizing the legally embossed analytical tools given to them by the trial judge, engage in community decision making. In the words of Justice Addy in R v Lane and Ross, [1970] 1 OR 681, 1969 CanLII 545 (ON SC) (p 279), juries are the “bulwark of our democratic system and a guarantee of our basic freedoms under the law.” They are also part of the sentencing discourse through their parole ineligibility recommendations, and, in the Saretzky case, they unanimously urged the imposition of consecutive terms totalling 75 years of parole ineligibility (para 24).

Community also defines the victims. Justice Tilleman humanizes the deceased (para 48) through the lens of community as he circumscribes their community space and place by describing “Hanne Meketech—a community elder and dear friend,” and “Terry Blanchette—a young man and father,” and lastly “Hailey Dunbar-Blanchette, an innocent child.” Thus, Justice Tilleman monumentally memorializes their lives in relation to what these victims of violence meant to their community.

The approach taken in this sentencing, the bringing in of community to a forum traditionally partitioned off from community, evokes the Indigenous model for restorative justice as envisioned in R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 (SCC) at para 74 and as skillfully employed by Justice Nakatsuru throughout R v Armitage, 2015 ONCJ 64 (CanLII). This model requires more investigation as we learn from and embrace Indigenous culture, thought, and sense of community. It also brings to mind specialized international courts, such as the traditional Rwandan gacaca courts, which empower community as a step to repairing past harms.

These approaches, superficially, differ greatly from the English common law tradition and often sit uneasily within our sentencing principles geared toward the criminal sanction. But on closer examination, all sentencing approaches cause us to investigate the space, place, and boundaries of the judicial function in the larger sense. Hard cases such as Saretzky require us to reconcile the role of the trial judge, who is at once the arbiter of the facts and purveyor of the law whilst also the guardian and representative of the community’s fundamental values. Difficult cases challenge us to consider how we today in our truly Canadian context should read the roles and responsibilities of judgeship. Conversations over hard cases help us create and define our legal system. In this instance, we are required to pause and consider whether Justice Tilleman was fulfilling a legally recognized juridical role when he permitted community to speak in this decision or whether on a strict reading of our legal principles he overcompensated for community when he elevated the crime beyond the worst offence and worst offender nomenclature to describe it as a crime against community (paras 32, 45). It is this hard case that causes us to consider holistically the post-conviction regime set down for us in the Criminal Code including the long-term offender and dangerous offender regimes, which offer an alternate determination of long term risk and dangerousness of an offender like Saretzky who is deemed “a lethal harm to his community” (para 43).

The delicate balance of sentencing requires a steady hand; a community needs to heal, needs to feel in some way part of the application and presence of justice for matters happening in their living space. Principles of sentencing recognize this role of community. Yet, balance requires linkage and proportionality, and the sentencing court must fulfill the objectives of sentencing in such a manner that this offender is sanctioned for his actions and for his level of moral culpability or blameworthiness. Certainly, Justice Tilleman was aware of this when he emphasized the “deliberate and intentional conduct” of Saretzky in committing the offences (para 34-35). To fulfill these principles then, the court must, through the “judicial lens”, know the offender, the offence and the community.

Sentencing is, in my view along with bail, the most important part of the criminal justice system. Release until proven guilty and meaningful, principled and compassionate sanctioning are the bookends of the Criminal Code. Without either, our system will fall. Recently, the spot light has rightly been on the frailties of the justice system with bail as an indicator, like the canary in a coal mine, of the level of crisis facing us. Sentencing principles (R v Lacasse, 2015 SCC 64 (CanLII)) and plea negotiations (R v Anthony-Cook, 2016 SCC 43 (CanLII)) have received jurisprudential scrutiny but without any real integration into the now widespread discussion of what’s wrong with our justice system and how to fix it. Certainly, the Saretzky decision is not a prime example of “what’s wrong” but it reveals to us where the points of legal inquiry intersect and interface with public confidence and trust in the system. Judges, throughout the trial, make decisions based on the rule of law, and jurors too must confine their decision-making to the parameters of legal principle, which involve the application of common sense and reasonable inferences. However, community, in the fullest sense of the term, is, as Jane Jacobs envisioned it in Death and Life of Great American Cities, the legal equivalent of “eyes on the street”, that idiomatic second pair of eyes, which takes the form of the alter ego of the blindfolded goddess embodied as the community conscience or “community sense of justice”. In what form this communal sense or community space unfolds within the halls of justice is a matter for further reflection and consideration. Justice Tilleman in the Saretzky decision challenges us to do just that.

Kienapple to Jordan: Some Thoughts on How Cases Become Icons

It is mid-August and I am busily writing a paper on W(D). Instantly, all criminal lawyers nod their head. Just the evocation of those initials recalls the penultimate paragraph of Justice Cory where he sets out the “ideally, appropriate instructions on the issue of credibility” and imprints, in words and in precedent, the trial judge’s obligation to assess credibility as an aspect of the presumption of innocence and consistent with the burden and standard of proof in a criminal case. Unsurprisingly, this “idealism” became “the law,” so to speak, as judge’s have taken Justice Cory’s words to heart resulting in over 9000 case citations (CanLii has 8590 mentions to date, while Westlaw finds 9, 133) of W(D) since its release in 1991. The case initials, W(D), have essentially become a constant reminder of the duty of a trial judge in a criminal trial. This transformation from case to icon, is not just about words and precedent, but is about something much more profound. Those two initials, like the madeleine savoured by Marcel Proust in Remembrance of Things Past, conjures up images of the “ideal” democratic society imbued with our principles of fundamental justice, of the impartial and independent trial judge as the gatekeeper extraordinaire, and as a symbol of our “community sense of justice.” Now that’s a heavy burden for one case! Yet, I would suggest, that W(D) does not stand alone in this iconography or more accurately, semiotic state (Umberto Eco, A Theory of Semiotics). Why or how a case attains this status is, I think, an interesting exercise for us to enter into as a different way to understand the development of law and precedent.

First, an admission. I came to this idea from some non-legal reading. Martin Kemp, an art historian and Leonardo Da Vinci “specialist,” not the Martin Kemp who was the bassist for Spandau Ballet, is an engaging and fascinating writer. His authorship glides over the orthodox as in The Oxford History of Western Art, but also wanders into the fringes in The Science of Art: Optical Themes in Western Art from Brunelleschi to Seaurat. His book, Christ to Coke: How Image Becomes Icon, runs through various obvious choices in this image/icon transmutation such as the Coke bottle and E = mc2 but also some non-traditional icons arising from photographic imagery such as the Pulitzer Prize winning photo by Nick Ut of the Vietnamese children running from the napalm blast on June 8, 1972. Although a reading and viewing of this book reveals the many and varied pathways to “stardom” or icon status, it also highlights the element these images share: the ubiquitous-ness of the image in the public psyche. As with Proust’s madeleine, the visual becomes a short hand for an avalanche of memories, facts and emotions. This is one time when a popularity contest works.

So how does all of this translate in the dicta of case law? Those cases which, at the same time are more than their name whilst being represented by just their name, become a short hand or an abbreviation for the case itself. I say, “for the case itself” as these cases go beyond the traditional ratio decidendi of the case and can encapsulate the implementation of that rule of law such as an in-court procedure employed to engage the issues raised in the case as in the Corbett application or as in W(D) an instruction or even more evocative, as a warning such as in Vetrovec. Highest status goes to those cases which become “grammarized” as verbs. Thus, a conviction can be “Kienappled” as referenced by imminent criminal defence lawyer, Alan Gold, at page 302 of his commentary "Appeal Courts - Jurisdiction" in the 1990, Volume 32 Criminal Law Quarterly. Sometimes, grammar changes – instead of a case being “Askoved” (see Alison Hatch Cunningham, North of the 49th Parallel: The Criminal Justice System of Canada, 13 Crim. Just. 21, 27 (1998)), we now, a year after its release, speak of a case being “Jordaned” (see Kelly Egan’s article online from April 28, 2017, Justice ministers focus on five areas to cut court delays). This grammatical construction is also akin to the vocative case in Latin where language directly “calls out” a subject of a sentence, usually done with a judicious use of an exclamation mark. Finally, the “iconizing” of a decision can make what is inanimate an animated object such as the “KGB statement.”

From case to icon means that the dicta or words found in the case are compressed or squeezed into the case name and become part of the verbal lawyerly language we employ in court, in discussions within our profession, and even in the advice we give our clients. Why these particular cases have such impact and such iconic status is a difficult question to answer but may be a result of their instrumentality or even more controversially, their weaponization, as cases which lead to determinative action such as in the Corbett application or as in the Askoved case. Their staying power may also rest on their dual status as used in both the bounded space of the courtroom and the boundless space of social media. As mentioned earlier, icon status also suggests a case meaning which transcends the obvious ratio and implies meaning which touches the inner core of societal ethos.

In a broader view, this inclination for iconography is also about the significance of naming in our society or more accurately our penchant for labelling, categorizing and listing. It leads us to ponder on the purpose of this short hand – are we cutting away too deeply by employing this “sound bite” approach or are we making law more accessible by promoting seminal and pivotal cases into everyday nomenclature? This concept of legal iconography also leads to further speculation on the role of the visual in law and one of my interests in visual jurisprudence as studied by the legal visual theorists, Peter Goodrich at Cardoza School of Law and Richard Sherwin, Director of the Visual Persuasion Project at New York Law School. It finally leads us to even broader considerations of access to justice and the kind of “human-centered design” we must be open to in the next generation of law iconography.  

W(D) is a case but it is more than that but what more it is, I am determined to find out!

 

Unpacking R v Barton

R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles.

The facts are startling, sad, and familiar. Cindy Gladue, a young Aboriginal woman, was paid sixty dollars by Mr. Barton to perform sex acts. Two interactions occurred over two days and on the second evening, Ms. Gladue died in the bathtub of Mr. Barton’s hotel room. She bled to death from a perforated vaginal wall. At trial, Mr. Barton admitted he had sexual contact with the deceased that evening. He admitted he repeatedly pumped his fist into Ms. Gladue’s vagina at which point she started to bleed. He maintained that he did not intend to harm her and that he was unaware of her condition until he awoke in the morning and found her immobile in the bathtub. In his evidence, he called the incident an “accident”. After finding her in an injurious state, Barton tried to mop up the blood, fled the scene, and discarded the bloody towel, only to return to the hotel room soon thereafter at which point he called 911. His statements after the incident, to both friends and the police, suggested Ms. Gladue came to his hotel room and asked to shower in his washroom, where he found her dead the next morning. At the time, he denied any physical interaction with the deceased. At trial, medical evidence was called on behalf of the Crown and the defence. The Crown’s expert contended the perforation was caused by a sharp object, while the defence expert disagreed and opined that weakness in the vaginal structure was the operating cause of the injury.

The trial was heard before a judge and jury in the early part of 2015 and Mr. Barton was ultimately acquitted. An application was made by the Crown, during the trial, to admit “real” evidence in the form of the vaginal tissue of Ms. Gladue to assist in understanding the evidence of the medical expert who examined the tissue (R v Barton, 2015 ABQB 159 (CanLII)). Real evidence is directly observable by the trier of fact. Like direct testimonial evidence of a witness who has personally observed an event, it does not require the trier of fact to draw an inference from the evidence, should it be accepted. Unlike direct testimonial evidence of a witness, the trier of fact becomes the direct observer, acting, in some sense, as the witness to the event. This act of “direct self-perception” or “autoptic proference” as Wigmore described it (John Henry Wigmore, Evidence in Trials at Common Law, revised by John T. McNaughton (Boston: Little, Brown and Company, 1961) vol. 4 at 1150), occurs with all real evidence such as photographs, audio and visual recordings, electronic and hard copy communications or the spent cartridges of a firearm. Similarly, application can be made pursuant to section 652 of the Criminal Code, RSC 1985, c C-46  during the course of a jury trial, up until the verdict is rendered, for a “view” of “person, place or thing” located outside of the Courtroom. These direct observations made by the trier of fact become part of the evidence assessed at trial. Often, real evidence or direct observations by the trier can “speak for itself,” such as those spent cartridges but real evidence, in terms of how it fits into the narrative puzzle, is subject to interpretation. Either way, real evidence is admissible at trial if it is relevant and material to the case. Relevancy depends on authenticity. An item that does not reflect its true nature at the time of the incident is worthless and has no probative value. Applications to admit such evidence are usually, therefore, framed in authenticity terms: Is the item unaltered and unchanged? The application, in this instance, was opposed by the defence, not because the tissue was irrelevant or not authentic but because the prejudicial effect of such evidence before the jury would outweigh the probative value. This exclusionary discretion or gatekeeper function of the trial judge is an important safeguard in ensuring a fair trial while ensuring the truth-seeking function of the trial is not inappropriately compromised. This discretion is an example of the balancing done over the course of a trial. In the area of expert evidence, for instance, the trial judge has an ongoing duty to ensure such evidence stays within its scope to ensure trial fairness (White Burgess v Haliburton, 2015 SCC 23 (para 54) and in R v Sekhon, 2014 SCC 15 (para 46)). In this instance, the trial judge admitted the evidence, recognizing the probative value outweighed the prejudicial effect. It was, in the Court’s opinion, evidence to assist the jury in their consideration of the case. The trial judge also reminded the jury to decide the case fairly and dispassionately and not to base the verdict on an emotional response to the evidence. Although, as noted by the Court at paragraphs 127 and 128, standardized cautions to the jury without contextualizing the instruction to the facts of the case are meaningless.

This narrative of the admissibility of the tissue evidence highlights the balancing required throughout the trial in both the admissibility of evidence and the instructions to the jury. But this story of admissibility goes even further than the bounded space of the Courtroom. Ms. Gladue’s family was devastated with the decision to admit the tissue evidence. To the family, it was a decision that required their input and consent to protect Ms. Gladue’s dignity as an Aboriginal woman. To the friends and family of Cindy Gladue, she was “more than a statistic, more than an addict and more than a piece of tissue” (Death and Life of Cindy Gladue by Kathryn Blaze Carlson, May 15, 2015, The Globe and Mail). In the interview for the Globe article, Ms. Gladue’s mother emphasized that Cindy is “still human, she still has a name, not just ‘prostitute’.” This evidentiary application highlights the concern the Court of Appeal has in Barton with the approach this case represents: We in the justice system are attuned to categories of legal issues to which we must respond such as the admissibility of real evidence, the inadmissibility of bad character evidence, the proper use of circumstantial evidence and the correct legal articulation of the substantive law. We are not trained to be mindful of the larger view of the case which involves a self-assessment of how the case, in totality, presents. We are not recognizing that important societal values, some of which are Charter values, must also be reflected in the justice system. This includes the way we refer to a witness as a “prostitute” rather than a “sex worker” or even why that kind of labelling, done throughout the trial by all participants in the case (para 116) is required. We need to constantly ask ourselves when we prepare and present a case, “why”? Why do we need the witness to be called a “prostitute”? How does it advance the case? Is there another way of making our point that does not fall into stereotypes or is the notion simply not required as its sole purpose is just prejudicial and irrelevant? These basic questions are part of the Court of Appeal’s “re-setting” to the modern approach to the contextual appreciation of a case.

The facts of this case do not serve merely as the framework upon which the legal issues are placed but are the essence of this decision. Woven in between these facts are the legal issues, which, to extend the metaphor, become the fabric of our discussion in this post or the “unpacking” of the case. Typically, this term “unpacking” refers to an analytical unfolding of issues that are difficult to ascertain without some sort of roadmap or guide. In essence, “unpacking” suggests an opening up of the folded map or triptych to reveal the whole route. It requires us to also extend ourselves and to examine the big picture. In seeing the whole, we can then consider how these various packets of legal issues fit together to provide the final outcome. But “unpacking” can also mean what it says – that a journey has ended and it’s time to clean out the baggage. We are done but not finished as when we “unpack” we might re-fold in a different or better way or we may clean and re-start again. We may even discard. After reading Barton and after reflecting on it, this post is about both types of “unpacking”. As I have already suggested, we need to ask broader and deeper questions such as: What is the long view of this decision? Where does it lead us? What will it impel us to do?

Admittedly, all of this may seem too existential for a legal blog but as a practitioner and academic, I am enjoying the pure joy of reading a decision which challenges me to set aside a legal response and instead to think about the kind of justice system which appropriately reflects who we are as a society and who we want to be. It sparks a badly needed conversation about our approach to the law and whether it is approachable for all those impacted by it. I can’t say with certainty that I know what the justice system should look like or can look like but I can say that this is something that we all need to be engaged in because change requires hard work and dedication. It also requires all of us to step out of our comfort zone, which cases such as R v Jordan, 2016 SCC 27 (CanLII), and now Barton push us to do. However, change does not mean we give up what is essential to us as a country committed to Charter values. It simply requires us to be mindful of those values in fashioning our justice system. We should not be pressured into cutting corners or rights in the name of expediency. Rather, we should be scrupulous in our desire to see justice done. Complacency or leaving the status quo, be it trial delay or conviction of the innocent, is a dead end to nowhere. Only thought that leads to action makes a difference.

As I first suggested, the Barton decision is nuanced, providing layers of discussion: I suggest at least seven layers which interconnect. Looking at the first layer of the unpacking of issues, there is an overarching theme, which in my mind extends far beyond the case at hand, relating to instructing the jury in a clear, robust and frank manner. We in the legal profession too often rely on the probity of legal nomenclature to get us to where we are going (model jury instructions can be found on the National Judicial Institute website: https://www.nji inm.ca/index.cfm/publications/model-jury-instructions/). Barton reminds us that justice is not only for those in the know but is also for those who really don’t care to know until they are face to face with questions of justice. Clarity of thought, simplicity of explanation, and frank conversation go a long way to inform the non-legal partners in our justice system. To be truthful, this approach goes a long way for those legal minds who are in the know as well. I will call this approach to jury instructions, in legal language, the modern principled approach, which embodies the contextual approach approved of and utilized by the Supreme Court of Canada in other areas of law such as in statutory interpretation (para 21 of Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC)) and in the admissibility of hearsay (see R v Khan, [1990] 2 SCR 531, and R v KGB,[1990] 1 SCR 740 as the foundational cases). This approach is open to doing law differently, within the bounds of legal principles and within the context of the case at hand. To do otherwise would be to detach the decision-making from the unique narrative offered by each case.  

A modern approach to jury instructions sounds grand but in the context of Barton it finds meaning. This is where the Alberta Court of Appeal provides us with guidance and helpful exemplars for the fulfillment of the modern approach. A jury instruction must provide meaningful assistance to the jury by simplifying the complex law on sexual assault while recognizing no two cases are alike. The trial judge’s role is to also “unpack” by unfolding the trial narrative with the concomitant legal issues as they are relevant in the particular case. The trier must ask, is this a case involving consent or no consent? Or is it an issue where consent is given but vitiated? If so, on what basis is there such a vitiation? This deep dive into the facts, this modern contextual approach, requires the trial judge to specifically identify the essential nature of the offence. As discussed throughout Barton, the emphasis in the charge was askew. For example, the focus should not have been on the “application of force” as required for the “assault” element of the offence but on the “sexual activity in question” per s 273.1 of the Criminal Code, which defines consent for the purpose of sexual offences. As recognized in the decision, sex, which is in and of itself a legal activity, is by nature a touching. This case is not one where the accused denied the sexual conduct so the emphasis in the instructions on a finding of an “application of force” was confusing and unhelpful for the jury (para 189). Instead, the focus for the jury should have been on the amount of force used as an aspect of the sexual activity (paras 193, 194).

Creating a jury charge that fits the case is not the only function of this modern jury instruction approach. A modern principled approach requires balance in the instructions to the jury. But balance does not mean the traditional evidential and procedural safeguards are no longer necessary. Instructions on the presumption of innocence and on impermissible inferences must be part of the discourse between trial judge and jury. However, the trial judge, who must remain balanced in thought and impartial in aspect throughout the trial, has a duty to present all evidence in a fair manner. The accused is to be judged on the evidence and not on improper inferences arising from it. In the Barton case, the trial judge admonished the jury to not engage in “reasoning prejudice” or “moral prejudice” that occurs when a trier draws an inference that the accused was a bad person and worthy of conviction because he consorted with an “unsavoury” person, in this case a “Native girl” who was a “prostitute” (para 130). This classic limiting instruction is given to ensure any potential “bad character” evidence, which is presumptively inadmissible, is not used for that impermissible purpose (see R v Mack, [2014] 3 SCR 3; 2014 SCC 58 para 57).  But in this case, the concern to protect the potential “bad character” of the accused was not informed by the gate keeper function of a trial judge that aims to provide balance and fairness into the trial. Here, again, is the problem with the silo approach to law where case approach is embodied by a check-list of issues. By this one-sided appreciation of “prejudice” in this case, as only the accused person’s prejudice, the full meaning of trial fairness, as functionalized by the gate keeper function of the trial judge, was missing.

The missing instruction, according to the Barton Court, was the lack of instruction cautioning the jury to refrain from entering into similar reasoning or moral prejudice in assessing the status of the deceased as a female, Indigenous sex worker. Similar to the instruction regarding the accused, the jury should have been told not to draw the impermissible inference that because the deceased was a “prostitute”, she implicitly consented to all forms of sexual interaction by virtue of her profession (Barton paras 116-132). This connects to the further error, discussed later in this post, relating to the lack of a section 276 application regarding sexual history evidence. The jury would also have benefited from a direction that Ms. Gladue was not less “worthy” as a person because of how she was “labeled” or defined by society as a female, as an indigenous person, and as a sex worker. Defence counsel and Crown counsel in this case should welcome such instruction as it would completely neutralize any suggestion of “bad personhood” on the part of Barton. It would also humanize the case, placing it in real terms. As eloquently referenced in para 128 of the Barton decision, the case is about relationships between race, gender and status. It is also about the trial judge’s relationship with the jury, the relationships between all parties in the case and the relationships between the justice system and the community. These relationships are at the core of the criminal justice system. They are based on trust and confidence. In these relationships we expect a “fair” trial not a “fixed” one as emphasized by the Court of Appeal in Barton (at para 262).

This kind of instruction, I suggest, is also consistent with the Supreme Court of Canada’s position on the editing or excising of an accused person’s criminal record in R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC). There, the Court considered the prejudicial effect of placing an accused’s criminal record before the jury in a situation where the accused will testify, and the resultant moral and reasoning prejudice which may arise from the accused person’s prior criminal convictions. The concern is two-fold; that the jury will find that the accused is a bad person who has a propensity to commit crimes, and therefore likely committed the present crime and is therefore worthy of punishment and that such a prior record could distract the jury from their duty to determine guilt or innocence on the basis of the evidence before them. Although the Corbett Court recognized the discretion of the trial judge to edit or excise a criminal record to ensure trial fairness, Chief Justice Dickson cautioned that such application must not result in a “serious imbalance” where the Crown witnesses may also have previous convictions and where, as a result, their credibility is attacked (Corbett para 34). This requires the judge to look at the context of the case or the long view of the facts which would be before the jury to ensure the case was not reimagined unfairly and that the truth-seeking function of the Court remained intact. This application is an example of the exclusionary discretion or gatekeeper function of the trial judge I mentioned earlier in this post in which the focus is on trial fairness. The Alberta Court of Appeal in Barton was applying the same reasoning in calling for a more balanced and contextual approach in the jury charge.  

The second layer of issues in the case, which flow from the general concern with the jury instructions, are the numerous specific “traditional” legal errors in the charge identified by the Court. I am labeling these issues as “traditional” as they are the kind of legal errors in instructing a jury one regularly argues on a murder appeal. Here too, I would suggest, the errors are connected. For instance, as I will explain further, the misdirection and non-direction to the jury on the use to be made of the post-offence conduct is related to the misdirection on the “defence” of accident. In turn, these errors are compounded by the misdirection in the charge on unlawful act manslaughter and the inadequate charge on the two potential pathways (standard and Jobidon related as I will discuss later in the post) to manslaughter. I caution again that the purpose of this post is not to thoroughly discuss the legal niceties of these errors. These errors, however, serve to highlight the entanglement of issues found in this case.

Post-offence conduct must be approached by the trier of fact with caution to ensure such potentially damning evidence is considered in its proper context (see R v White, [1998] 2 SCR 72, 1998 CanLII 789 (SCC)). There are instances where an accused person’s actions after the incident “look suspicious” but are in fact consistent with an innocent explanation. Of course, it is within the purview of the trier of fact to accept or reject evidence and to determine the weight, if any, to place on evidence. However, as with impermissible character evidence, the trier of fact should not be concerned with evidence that has no probative value and merely distracts the jury from its duty to fairly and objectively assess the evidence. The concern with post offence conduct is the potential illogical “leap in logic” which can occur should the trier unreasonably infer guilt from evidence that merely “looks bad”. This does not mean that such evidence is presumptively inadmissible. On the contrary, post-offence conduct can be useful circumstantial evidence of guilt, of motive and of credibility, as noted by the Alberta Court of Appeal in Barton (paras 57-75). The misdirection and non-direction on the use of such evidence in Barton impacted the jury instructions on Mr. Barton’s position that what happened was an accident, as his “innocent explanation” seemed to negate a proper instruction on the use to be made of the post-offence conduct (paras 63-69).

The Court in Barton raises the “elephant in the room” concern, which is whether “accident” is a positive defence the jury will be specifically instructed to consider like self defence or duress (paras 184-293). Of course, such an instruction would only be given if the defence has an “air of reality.” This test requires the trial judge to determine “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.” (R v Cinous, [2000] 2 SCR 3 paras 47 to 57) Without entering into a thorough discussion here on that issue, put simply, the Barton Court finds that there is no self-contained “defence” of accident as such a position merely negates the essential elements of a crime, be it actus reus or mens rea. Further, the characterization of the defence as “pure accident” in the charge (para 287) was inconsistent with Mr. Barton’s admission at trial that he repeatedly and forcibly entered Ms. Gladue’s vagina with his fist. I would add that even if “accident” is a “defence,” it is arguable whether, on the evidence, the defence had any “air of reality” such that it was properly placed for consideration before the jury. Further, this emphasis on “accident,” as it is mentioned enhances the error in misdirecting the jury on post offence conduct and on the mens rea for unlawful act manslaughter, which is based on an objective foresight of bodily harm per R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC), and R v Creighton, [1993] 3 SCR 3, 1993 CanLII 61 (SCC). Additionally, the lack of direction on the objective dangerousness of Barton’s actions in the context of a manslaughter charge is in and of itself worthy of appellate intervention.

These “traditional” errors also led to the third layer of legal errors to be unpacked relating to the law of sexual assault, now so sadly prevalent in the appellate courts. These errors impact the substantive instructions on the law of murder and manslaughter, as the element of sexual assault causing bodily harm is integral to a proper understanding of the homicide instruction. This layer takes us back to the beginning as it reveals the fragility of the model jury instructions, the weaknesses inherent in a categorical “check list” approach rather than the modern contextual holistic approach, and the lack of a “humanity litmus test”, which reminds us that this case is about real people, whose voices (or lack thereof in Ms Gladue’s case) are being heard by real people. This set of errors impacts how we generally and traditionally approach the law of sexual assault but also reminds us of the need to step back and look at the case we are presenting and ask ourselves those “why” questions. For the Crown and the defence those “why” questions should be in the context of their theme/theory, strategic decisions including the thought processes on how to present the best and most effective case before the jury that promotes trial fairness. The Court in Barton identified legal errors in the instructions on the law of sexual assault but also in the manner in which the law of sexual assault was presented as part of a “boiler plate” or “fossilized” (para 8) instruction (paras 173-258).

This misdirection in the charge was preceded by and imbued with the missing procedure under s 276 of the Criminal Code or what is known as the “rape shield” law (paras 85-153 of Barton and for further discussion see R v Seaboyer;R v Gayme, [1991] 2 SCR 577). Again, this fourth layer of error relates to the admissibility of evidence that may lead to impermissible, prejudicial, and illogical inferences. Section 276 prohibits evidence whose sole purpose is to perpetuate the “twin myths” (para 89) relating to sexual assault complainants that prior sexual conduct, including being a “prostitute,” means consent was present at the time of the offence and that prior sexuality is a form of “bad personhood” making such a person of “loose morals” less credible. This prohibition is to ensure trial fairness and balance. The same balance that requires the instructing judge to remind the jury that Ms. Gladue, like all people in the justice system—the accused, the lawyers, the witnesses—must be treated with dignity and respect. A person is not to be “judged” by race, sexual orientation, gender or profession.

An application to use prior sexual history evidence for purposes other than the prohibited twin myths relating to consent and credibility is required whenever the accused is tried on a sexual assault charge. However, s 276 does not specifically reference homicide, which requires, according to s 222(5), an unlawful act. Such an unlawful act can be sexual assault or as in this case, sexual assault causing bodily harm. The Barton Court interprets the s 276 requirement that the application is engaged “in proceedings in respect of an offence” as including a homicide, where the underlying act is a sexual offence. This interpretation, using the modern approach as defined by Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, 1998 CanLII 837 (SCC), is consistent with the purpose and objective of the section. To interpret it otherwise would present an absurdity and would be contrary to Parliamentary intention in creating the protection under s 276. The section provides a mechanism whereby the accused can apply to have such evidence admitted if it is connected to a relevant matter that goes beyond the realm of myth and is needed for fair trial purposes and to fulfill the accused’s right to full answer and defence under s 7 of the Charter.

The fifth area to unpack is the obiter comments found in the reasons. There are three areas of concern involving, as already discussed, whether there is a recognized stand-alone “defence” of accident (paras 284-293), the use of public policy in defining or confining consent pursuant to Jobidon, and a call for clarification of the “reasonable steps” requirement for mistaken belief in consent under s 273.2(b). All three of these concerns are valid and worth investigating, particularly the continuing struggle to reconcile R v Jobidon, [1991] 2 SCR 714, 1991 CanLII 77 (SCC), with the much-changed legal landscape on the matter of consent since its release 26 years ago (paras 301-310 and for further discussion see my previous post on Jobidon). Again, these discussions require a detailed response for a later date, however, I would like to acknowledge the pressing issue of the clarification of the “reasonable steps” requirement as raised in Barton (paras 294-300). Section 273.2 enumerates situations where the accused in a sexual assault case cannot rely on the defence of mistake of fact in consent.  Under subsection (b) the mistaken belief in consent defence is unavailable where the accused does not take reasonable steps to ascertain consent. Soon after the release of Barton, the Supreme Court of Canada released R v George, 2017 CanLII 24267 (SCC), involving a charge of sexual interference under s 151 where the accused was 35 years of age and the complainant was 14 and a half years old. Section 150.1(4) of the Criminal Code prohibits a mistake of age defence unless the accused took “all reasonable steps”. In the George case, the Court found that where there is an air of reality to the defence of mistake of fact, the burden is on the Crown to prove beyond a reasonable doubt that either the accused did not honestly believe the complainant was at least 16 or the accused did not take all reasonable steps to ascertain the age of the complainant. Considering the similarity in wording with s 273.2, as recognized by the Barton Court, this obiter issue, which was not raised in the Barton appeal, becomes even more pressing to consider (para 294).

The sixth unpacking involves the notion of appellate review of an acquittal. Section 676(1) of the Criminal Code confines an appeal against acquittal by the Attorney General to a question of law alone. This limitation arises from the core values of our justice system. As articulated by Justice Wilson in the majority decision of R v B(G) [1990] 2 SCR 57, 1990 CanLII 115 (SCC) at 66, the restricted appellate review “reflects the fundamental principle that an accused is presumed to be innocent until proved guilty by proof beyond a reasonable doubt”. In B(G), Justice Wilson reviewed what the term “question of law” entails. Although factual errors alone, as in an unreasonable verdict or sufficiency of the evidence, would not amount to a question of law, a misapprehension of fact could be if it amounted to a misdirection on the law (pages 70-72). Throughout Barton, the Court is careful to characterize the errors as irreversible misdirections and non-directions of law.

As raised earlier in this post, the recent Supreme Court of Canada George decision may have an impact on the obiter legal issues raised by the Court in Barton on the clarification of the “reasonable steps” requirement for a defence of an honest belief in consent under s 273.2(b) of the Criminal Code. George was a case of an appeal against acquittal and it is the comments on the jurisdiction of appellate review of an acquittal, which may pose further discussion points in the review of the Barton decision. For the appellate Court to intervene in an appeal against an acquittal, there must be an error in law and that error must materially impact the not guilty verdict. The threshold for such materiality is quite high. There must be at least an error that with a “reasonable degree of certainty” has a material effect (George para 27). In paras 6 and 52 of the Barton decision, the Court suggests the identified legal errors “might reasonably” have a material bearing on the outcome, which could suggest too low of a threshold. However, later in the reasons the Court clearly finds the specific legal errors did have a material bearing on the acquittal. In any event, although it might seem like semantics, I could see an argument made on a further appeal that the threshold they used was too low. Additionally, the Court in George discussed the concern with conflating what are factual issues with legal issues, whereby the “legal” errors are actually factual ones (George para 17). Again, it would be difficult to suggest the Barton Court entered into the same error. 

A final comment to make, the seventh unpacking, is a connection I see with some of the research I have been doing on the evolving role of the trial judge in a criminal case as the trier of fact, the arbiter of the law, and the gate keeper and guardian of the courts, and the impact the sense of community or societal values is having on this “enhanced” version of the trial judge. I jokingly refer to the new and improved vision of the trial judge as “gate keeper on steroids” but really a trial judge does not sit alone but sits in the heart of the community of justice. It is the relationship or connection between all individuals in the criminal justice system which interests me and which I believe profoundly impacts the way the courts impart justice. It also, in my view, explains why we are now struggling, in an existential way, with our conceptions of what the justice system should be. Cases like Barton, Jordan and even older cases such as R v Anthony-Cook, [2016] 2 SCR 204, 2016 SCC 43 (CanLII), R v St-Cloud, [2015] 2 SCR 328, 2015 SCC 27 (CanLII), and R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), signal a new modern approach to criminal law. If this is so, then we need to be prepared to answer the issues raised in those cases, to be modern in our aspect and approach while continually ensuring the fundamental values embodied in our presumption of innocence and fair trial principles are not diminished and remain central to that modern approach.

The Barton decision is fresh and challenging. It will impact, not only the re-trial of this case but also future cases and has already been cited in a recent Alberta Court of Appeal decision (R v ARD, 2017 ABCA 237 at para 57). We are put off balance by the intricacies offered by the decision but then only until we re-adjust to a new balance. The unpacking we have just undertaken is a step toward discussion and review of what has been done in the past and whether the past can be a jumping off point that, as the Court recommends in Barton, allows for a “re-setting” to the modern approach.

 

 

Some Initial Thoughts on the Senate Report on Criminal Justice Reform

Is delaying justice, denying justice? Yes, but the delay is a denial for all not just specific groups. Justice Cory in Askov recognized the societal dimension to a speedy trial. Although s. 11(b) is couched as an individual legal right, it is in fact a value we all share and an interest involving the public good. We all have a stake in justice and therefore we are all impacted when justice fails us. I have said this many times before – admittedly almost like a broken record – but what is as stake, when the justice system fails, is who we are as a nation. In our 150th year we need to look toward a cohesive and responsive future, which respects all citizens. To me respect comes from a robust and mindful justice system that provides access to those who need it and confidence to those who do not. Thus, the priority in the Senate Report to properly fund Legal Aid across the country should be, in my view, a number one priority.

Law reform is about “best practices.” Indeed, the interim Senate Report from August 2016 and the one now placed before us speaks of this.  “Best practices” is about excellence, integrity and confidence. It is about innovation and alternate strategies. Keeping this in mind, the Senate Report makes fifty recommendations to reform the justice system but identifies thirteen as uniquely pressing and urgent.

In my view, the highlight of these recommendations are the alternate strategies, looking at the administration of court in a subtle way or rather in a different way. Do we need to be bound by the traditional court structure or is there more we can do? Can we borrow from other cultures? Can we bring something that will work better? These innovative forward looking recommendations deserves attention and should receive heightened importance. Under this rubric, we can see many of these thirteen priorities as connected, such as the effects our justice system has on our Indigenous peoples of our country. Can we not learn from their unique perspective and collaborative approach?

Additionally, taking notice of mental health and the fact that substance abuse may go hand in hand with this issue is another priority that connects with innovative strategies and to me is extremely timely and urgent.  The increase of fentanyl use and the carnage resulting from it needs to be addressed. Again, specialized courts and embedded treatment centres id badly needed to address and alleviate the pressure on the justice system.

Again, connected to the above, is the call for a hard look at what needs to be criminalized under our Code. A better and smarter approach to what behaviour needs to be underlined by the criminal law will streamline the system and increase public confidence in the administration of justice. Often administrative penalties can provide the incentive to change behaviour where the criminal law cannot or does not.

Increased and better use of technological change is a must and is an integral part of court innovation. We have technology now but is it being used in the best way? Are we ensuring that the use of technology is sustainable and manageable? Are we providing the right incentives for all stakeholders to use the best practices when it comes to technology? This needs to be explored.

The idea of “judicial officers” to do some of the work of a judge or justice requires a deeper look. It is attractive and it can work to focus the system on those issues that need judicial oversight. However, we must ensure that such a change will not simply be shifting the work elsewhere. A simple shift will not change the culture of the court system.

I have not commented on some of the priorities which cause me concern. The issue of whether there is an alternate remedy under 24(1) to a stay is a complex issue. As a defence lawyer, I am hard pressed to envision an alternate remedy when the Charter breach involves the administration of justice, the most egregious type of Charter violation. Such a violation engages fair trial and full answer and defence concerns. It is a violation that recognizes potential for miscarriages of justice. It is a weighty issue which will need to be explored further by the courts and by me as well in a future blog posting.

Also, my view of the need to retain the preliminary inquiry causes me concern with the recommendation to restrict or end the process. I have spoken on this issue before and written about possible alternatives such as permitting a civil form of questioning where the inquiry is not to determine whether there is sufficient evidence for trial. The preliminary inquiry, as I wrote in my blog on the Stinert decision, is not just an archaic vestige of the past but can be an important safeguard in our justice system which has its roots in the all-important principle of the presumption of innocence. We must be cautious in moving away from such a protection.

I will end my initial thoughts here with a promise to delve deeper into the “big picture” of the law reform in a future posting. In the meantime, I encourage everyone to review the Report and to start thinking about what kind of justice system they envision for Canada.