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 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.

 

 

 

 

 

 

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

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

 

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

 

 53 Every one who

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman

This blog also appears on the ABlawg.ca website:

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

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

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

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

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

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

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

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

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

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

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

 

On The DLW Decision and The Meaning of Modernity

Despite our common law system, statute law remains a key source of law in Canada. Its importance cannot be underestimated as lawmakers rely on legislation to implement policy on various social and economic issues. In many ways, legislation is reflective of who we are as a society and serves to reinforce our collective values. No other piece of legislation in Canada exemplifies this more than our Criminal Code, RSC 1985, c C-46. Contained in this piece of legislation is conduct we deem as a society to be so abhorrent, so contrary to who we are, that we will punish those who commit these prohibited acts, often through a loss of liberty. Although the concept of codification relieves us from speculating on the substance of criminal behaviour, it carries with it the mystique of interpreting or discerning Parliamentary intent in creating those crimes. As a result, statutory interpretation is often the main issue in criminal cases as judges wrestle with words, meanings, and intentions. This process is vital in criminal law, where a turn of phrase can mean the difference between guilt or innocence. The difficulty lies in dealing with crimes that carry centuries of established meaning, such as murder, assault, and theft. Yet, the crimes so interpreted must remain relevant. In this blog post, I will explore certain aspects of the DLW judgment, 2016 SCC 22, the most recent Supreme Court of Canada decision employing statutory interpretation principles, on the crime of bestiality (section 160 of the Criminal Code). Here, the Court enters into an age old process of interpretation yet does so, seemingly, in the name of modernity. This case highlights the inherent problems in discerning or interpreting value-laden legislation as it then was and then, ultimately, as it needs to be.

Before we delve into DLW, we must set our general legislative expectations. As mentioned earlier, legislation is based upon sound public policy. Seen in this light, legislation should provide a narrative displaying the objectives and goals of the rules contained within their sections. It should provide clarity of purpose with which we can identify. Legislation should be accessible to all, not just in a physical sense, but also intellectually. Moreover, legislation, as a delivery platform, should be flexible and responsive to the societal values it is meant to emulate. However, these expectations seem to dissolve as soon as the ink dries on the paper. In the context of a written document, legislation seems to lose its dynamic quality. Indeed, as suggested by Lord Esher in Sharpe v Wakefield (1888), 22 Q.B.D. 239, at p. 242, “The words of a statute must be construed as they would have been the day after the statute was passed,” meaning that the words have a frozen quality as they encapsulate a moment in time. The key is in knowing what that moment reveals, which is crucial for the proper implementation and application of the legislation.

Although, the courts have entered into the legislative fray since time immemorial, or at least since 1235 when the first Act of the English Parliament was passed (see for example, Statute of Merton, Attorneys in County Court Act, 1235), it is still far from clear how the courts perform this interpretive function. To be sure rules have been fashioned such as the “Plain Meaning Rule,” also known as the “Literal Rule,” or the “Mischief Rule” or even the “Golden Rule.” Just to clarify, that is the other Golden Rule, not the biblical one. In any event, sprinkled liberally between these over-arching rules are specific rules and maxims, usually proposed in Latin, making the whole exercise very structured, formalistic, and confusing. Thankfully, this conundrum was noted by Elmer Driedger, long-time Solicitor for the Attorney-General of Canada and author of the seminal work in the area.  In the Construction of Statutes 2nd ed., Toronto, Butterworths, 1983, at 87, Driedger summed up all of the disparate rules into one sentence:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Within the year, in Stubart Investments Ltd v The Queen decision, [1984] 1 SCR 536, the Supreme Court of Canada endorsed this “modern rule.” By 1985, the principle was deemed “oft-quoted” in Vachon v Canada Employment and Immigration Commission, [1985] 2 SCR 417 (at para 48). Despite the Court’s quick embracement of the “modern rule” or “modern principles,” decades later, it is still unclear what this rule encompasses and how “modern” it truly is. This topic is thoroughly canvassed in the fascinating article on the development and use of the “modern principle” authored by Stéphane Beaulac and Pierre-André Côté, entitled “Driedger’s “Modern Principle” at the Supreme Court of Canada: Interpretation, Justification, Legitimization” ((2006) 40 R.J.T. 131. In the paper, Beaulac and Côté persuasively argue that the principle is far from modern, even at the time of its reception by the Court. They posit the principle, as articulated by Driedger in 1983, was simply a rough summary of the main statutory principles in use at the time. Certainly by 2006, the principle was far from “modern” having been in use for years. As an aside, some of these principles can be traced to the thirteen rules of Talmudic textual interpretation, particularly rule twelve, which suggests a contextual interpretation. In any event, the Supreme Court of Canada still confers the moniker, “modern,” to the approach (see R v Borowiec, 2016 SCC 11 at para 18). Its modernity, therefore, appears to be in question.

However, in the spirit of Driedger let us first do a little interpretation on the term “modern.” In the DLW case, “modern” appears to mean “new” as opposed to “old.” Looking at the “grammatical and ordinary sense” of the word “modern,” the Oxford Dictionary, the go-to text for the Supreme Court of Canada (CanLii search found 147 SCC cases referencing the Oxford Dictionary as opposed to a paltry 11 cases for Merriam-Webster), the definition is “relating to the present or recent times as opposed to the remote past” or “characterized by or using the most up-to-date techniques, ideas, or equipment.” Indeed, in Justice Abella’s dissent in DLW, she frames the issue as the new against the old with her newer more “modern” interpretation of the crime as opposed to the majority, written by Justice Cromwell, an old hand at statutory interpretation cases, as the purveyor of the old fashioned, decidedly out of sync with today’s realities.

Abella J accomplishes this new/old dichotomy through her deft use of metaphor directed at the majority decision. The opening paragraph of her dissent utilizes agricultural metaphors of abundance (at para 125) describing the “fertile field” of statutory interpretation with the “routine harvest” of “words and intentions” as “planted” by the lawmakers.  This metaphor brings to mind not only quantity but also the longevity of the interpretative technique as she then extends her position that the crime of bestiality must receive a modern interpretation despite the fact it is a “centuries old” crime (at para 126) whose “roots” are “old, deep, and gnarled” (at para 125). Thus an interpretation of the crime, based on tradition as per the majority under Cromwell J, is not a living tree but an ancient inaccessible relic of the past. Cleverly, Abella J’s opening of the issue is an effective foil to Justice Cromwell’s majority where he characterizes bestiality as a “very old” crime in his opening paragraph (at para 1) but one which cannot be made “new” without clear Parliamentary intention and certainly not through judicial intervention. In paragraph 13, Justice Cromwell hands Justice Abella her thematic metaphor by setting out the “root” of the issue as an interplay between common law and statutory intention. A similar technique was used by Justice Karakatsanis, with Justice Abella concurring, in the dissent in the Fearon case, [2014] 3 SCR 621, 2014 SCC 77 (CanLII), wherein Justice Cromwell too authored the majority decision. There, through the deliberate choice of word use, the dissent of Karakatsanis J breathes modernity in stark contrast to Cromwell J’s reliance on traditional legalistic nomenclature (for further discussion on this see, as published on my website, my previous blog entitled A Fresh Look At Fearon: How Language Informs The Law).

In fact, Justice Abella is right: the issue in DLW is very much bound up with the old and the new as the court is faced with the task of defining the meaning of “bestiality” as it relates to a disturbing child sexual abuse case where a family pet was used to molest a child. The “old” or “traditional” view of bestiality, undefined in the Criminal Code but as gleaned through common law, has the requirement for penetration. This definition fails to not only capture the conduct in DLW but also fails, according to Justice Abella’s dissent, on a cultural, social, and public policy level as well. The irony, in the context of interpreting our codified criminal law, is the reliance on the common law conception of the crime. Since its inception in 1892, the Criminal Code has been the only source, with one limited exception, for identifying which conduct should be considered criminal. If conduct is not proscribed in our Code as a crime, then it is not one. In other words, the common law, or those unwritten rules which have developed over time, cannot create a crime. The only exception being the common law offence of contempt of court pursuant to s. 9 of the Criminal Code. Otherwise, only our Parliament under s. 91(27) of the Constitution Act, 1867 has the authority to create criminal law. Nevertheless, the common law is not ignored in the interpretative process. For the majority, the common law remains unchanged by codification and therefore can be equated with Parliamentary intention. To go any further, in the view of the majority, the courts would be creating a “new” crime, which is not within the judicial function. Conversely, for Justice Abella, the common law conception of bestiality reinforces the present need to move beyond it.

In this sense “modern” can also denote more than a chronological time. It can also, according to the Oxford Dictionary, refer to a “current or recent style or trend in art, architecture, or other cultural activity marked by a significant departure from traditional styles and values.” In this definition, looking at legislation as a “cultural activity” in the broadest sense, Justice Abella’s reading of the term proposes a departure from the traditional “modern principles” through the lens of current societal interests as reflected in the present policy decisions behind the creation of crimes. However, in the realm of traditional statutory interpretation, although Parliamentary intention -through the scheme and objectives of the legislation- lends context to the statutory interpretation process, such context does not necessarily include a deep dive into the policy behind the legislation. Certainly, Driedger’s principles do not directly make reference to it. This lack of clarity, according to Beaulac and Côté in their article, has resulted in uneven judicial treatment of policy in statutory interpretation. For instance, in Canadian Broadcasting Corp v SODRAC 2003 Inc, [2015] 3 SCR 615, at paragraph 55 the majority decision written by Justice Rothstein (Cromwell J, among others, concurring) effectively cautions against the dissent’s use of policy considerations in textual interpretation. In that case, Justice Abella, yet again, writes the main dissenting position. The DLW decision, therefore, is just another example of this interpretive tension. However, considering traditional statutory interpretation in discerning Parliamentary intention was reluctant to go beyond the four corners of the document, the now ubiquitous use of Hansard to elucidate on such intention shows how far the court has and can move from tradition towards modernity. This will definitely be a continuing dialogue within the court to watch for in future cases.

So what of the modernity of the principle in use in the DLW case? It has already been established that this principle has been in use for years and, according to Beaulac and Cote, may even be a mere reiteration of what had been in use prior to 1983. However, as Beaulac and Cote also recognize, Driedger’s principle is both a “method of interpretation” and a “framework for justification.” It is that dual nature, which provides an inherent flexibility to the principle, permitting it to discern or interpret even the most profound words found in our rules of law. Its application, as seen through the discourse in the DLW case, cannot be confined by the four corners of a piece of legislation but must permit a deeper analysis involving societal values and purpose to remain meaningful. In short, it requires, a touch of modernity.

This blog is also posted on Ablawg website: www.ablawg.ca

 

 

Episode 44 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 49 – Alarming The Queen

In this episode, we are still considering Offences Against Public Order involving treasonous conduct. Section 49 prohibits acts tending to alarm Her Majesty or acts that break the public peace. The section reads as follows:

Every one who wilfully, in the presence of Her Majesty,

            (a) does an act with intent to alarm Her Majesty or to break the public peace, or

            (b) does an act that is intended or is likely to cause bodily harm to Her Majesty,

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

The purpose of the section is to protect The Queen from harm, alarm, or even a rowdy crowd. This is a serious offence: Those who are found guilty under the section face up to 14 years incarceration. Although the fault element is clearly subjective, the word “wilfully” does not necessarily denote a high level of intention to be proven and may include the lower level of subjective mens rea of recklessness. That argument is strengthened by subsection (b) which requires that the accused either intend to cause bodily harm or does an act that is “likely” to harm The Queen. This likelihood requirement suggests foresight of risk to the prohibited consequences including recklessness. Alternatively, the section can also be interpreted as to require full subjective intention for an offence under s. 49(a) and a more general form of intention, including recklessness, for a 49(b) offence. This interpretation is supported by the requirement in (b) for the more serious and direct harm to The Queen. However, the sanction is as severe for both prohibited acts. Considering, the offence is listed under s.469 as within the exclusive jurisdiction of the Superior Court, an argument could be made that only the highest level of intention will fulfill the mens rea requirements for both subsections.

To fulfill the actus reus requirements, the accused would have to commit the prohibited acts in the “presence” of Her Majesty. Although this term suggests a face to face encounter, mere presence may mean the accused need only be in the general area.  If that is the interpretation, again, relying on symmetry between the actus reus and mens rea, the accused would have to be aware The Queen was also present at the time of the prohibited acts.

Under (a), the prohibited act is “alarm” or “break the public peace.” Alarm is not defined under the Code, but the term does appear in other sections such as s. 372, the offence of false information. We will on another occasion discuss that section more thoroughly but the wording in s. 372 is similar to s. 49. Under 372 (1), the accused must intend to injure or alarm a person by conveying false information. Notice there is no requirement the accused act “wilfully.”  Under subsection (2), the accused must intend to alarm or annoy a person by making an indecent communication.  This offence is a dual offence, punishable by summary conviction or indictment with a sentence of 2 years less a day (meaning an accused who receives the maximum sentence will be sent to a provincial institution as opposed to a federal institution, which requires a sentence for two years or more). Clearly this offence is viewed as less serious than alarming the titular head of state. Again, this increase in penalty for s. 49 is consistent with the concern with treasonous activities. The other section in the Code, requiring “alarm” is s. 178, in which the accused possesses, throws or injects an offensive volatile substance that is likely to alarm, inconvenience, discommode or cause discomfort to any person or to cause damage to property. According to the dictionary, “alarm” means “a sudden sharp apprehension and fear resulting from the perception of imminent danger.” It seems alarming The Queen means much more than merely surprising her.

The section also prohibits the accused from breaking the public peace in Her Majesty’s presence. The phrase “break the public peace” is unique to the section but the term “public peace” is used elsewhere. “Public peace” is found in s. 88, which prohibits the possession of a weapon dangerous to the public peace. It is also used to describe the duties of a peace officer under s. 2, as someone who “preserves and maintains” the public peace. In the 2004 Supreme Court of Canada Kerr decision, the concurring judgment of Justice Lebel (with Justice Arbour) defined “public peace,” in the context of s. 88. The phrase was an ancient one, referring to the King’s Peace as defined in the 1888 Volume 7 of Murray’s New English Dictionary of Historical Principles, the precursor to the Oxford Dictionary. There, the King’s Peace is defined in a more general sense as the “general peace and order of the realm, as provided for by law.” Hence, the term “keep the peace and be of good behaviour” as found as a condition in common law peace bonds. In Kerr, Justice Lebel preferred a more restrictive meaning to ensure the offence was not overbroad and to relate the phrase to the modern realities of society. Therefore, a breach of the public peace under the Code contemplated actual harm done to a person or harm likely to be done as a result of a disturbance.

Also, as mentioned earlier, this section is a s. 469 offence and within the exclusive jurisdiction of the Superior Court. Like a murder charge, another s. 469 offence, if a person is charged with this crime, the bail hearing must be before a superior court judge. At the accused’s first appearance before a provincial court judge or justice of the peace, the accused would be detained in custody pursuant to s. 515(11) of the Code to be dealt with thereafter in the superior court. Under s. 522, the burden is on the defence to apply for bail and show cause why release is warranted. This is an exception to bail principles and the Charter right under s. 11(e), which presumes release of the accused unless the Crown shows cause for detention. The trial must also be heard before the superior court judge and jury per s. 471, unless the accused and the Attorney General consent under s. 473 to trial by superior court judge sitting alone.

There is no Canadian case law relating to this section. Historically, the section was broader and in the 1892 Code was entitled “assaults on the Queen.”  This original section did require that the accused act “wilfully.” Part of the punishment upon conviction in 1892 was “to be whipped, once, twice, thrice as the court directs.” This offence must be seen in its historical context: at this time there had been several assassination attempts against Queen Victoria. Indeed, the 1892 offence included specific prohibited acts, which parallel these attempts. For instance, it was prohibited to strike or strike at the Queen. In June 1850, The Queen was hit on the head with a short cane. Although not seriously injured, the accused, Robert Pate, was sentenced to 7 years of penal transportation to serve his sentence abroad in the Australian penal colony. In 1906, the offence remained virtually the same but was changed to “assaults upon the King.” The present iteration was from the 1954 Code amendments. Most likely, this section will be changed yet again when King Charles ascends the throne or it may be seen as an archaic section, not worth retaining considering there are other sections in the Code, which would suffice. In any event, this section should be reviewed as part of Criminal Code reform.

For further discussion on the criminal law as seen through “Her Majesty,” read my previous blog entitled In The Name Of Her Majesty’s Criminal Law.

Next podcast, we will continue with the treason theme and discuss s. 50 prohibiting assisting an alien enemy to leave Canada or omitting to prevent treason.

Episode 43: Section 46 – It’s High Time To Talk About Treason – The Ideablawg Podcast on the Criminal Code of Canada

We are now moving our discussion into Part II of the Criminal Code relating to Offences Against Public Order. This Part stretches from s. 46, the subject of this podcast on Treason, to s. 83 on Prize Fights. It is, as you can imagine, a Part dedicated to rambunctious and seditious behaviour, which may impact the community peace and tranquility. It is conduct that covers the high seas, as in s. 74 piracy, as well as the earthy depths, as in s. 70, unlawful drilling. In short, this Part is a panoply of misbehaviours, originating in our historical English common law past yet may still be relevant today albeit in a more modern guise.

So let’s start this podcast with the first three sections: 46, 47, and 48 as they all relate to the offence of treason. These sections are entitled “Treason and Other Offences Against the Queen’s Authority and Person.” A quick glance at the first section 46 tells us that it refers to two offences: high treason, in subsection 1, and treason, under subsection 2. Those sections read as follows:

S. 46(1) Every one commits high treason who, in Canada,

(a) kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her;

                        (b) levies war against Canada or does any act preparatory thereto;  or

(c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.     

(2) Every one commits treason who, in Canada,

(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;

(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);

(d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or

(e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act.

Just what the difference is between high treason and treason should be evident by reviewing the conduct captured by each subsection. The punishment section 46 also tells us that high treason is considered one of the most serious offences in the Code as as it is an indictable offence punishable by life. Treason, on the other hand, is considered on par with high treason in certain circumstances, such as in offences committed under s. 46(a)(c) and (d). If Canada is in “a state of war” against another country, then the offences under s. 46(b) and (e) are also punishable by life imprisonment. Otherwise those offences carry a maximum punishment of fourteen years incarceration. It appears then that in some respects, other than the type of conduct captured, treason and high treason are very similar.

Perhaps at this point, in order to better understand why the offences need to be labelled differently and why the section could not just refer to treason only, we should take a walk down memory lane and look at the historical antecedents of this crime. As with so many of the crimes in our Criminal Code, the crime of treason comes to us from the English common law. However, the concept of treason, or the betraying of one’s country, is very old indeed. The word “treason” can be traced from the Latin word tradere, which means “to hand over” or “surrender.” From this word came the Old French word “traison,” which means treason but is also connected to the Old French verb “trair” meaning to betray. Interestingly, the word “tradition” is also derived from the original Latin root. In essence, as explained in the 1947 article on the subject by S. C. Biggs entitled “Treason and the Trial of William Joyce,” treason is an act of betrayal against one’s country or a breach of allegiance. It is not, however, an act of disloyalty, as Biggs points out, as it is not a crime based on an omission to act. Treasonable conduct does not include a failure to sing the national anthem at a hockey game but does include “certain positive acts which strike at the foundation of the state.”

Treason, in its purest or “highest” form, was, at the time of the introduction of the Criminal Code in 1892, a most serious crime attracting the ultimate punishment of death. Indeed, one convicted of the most serious type of treason was “liable to suffer death.” Conversely, a person convicted of murder, which in the 1892 Code was also a capital crime, was merely “sentenced to death.” While someone convicted of piratical acts with intent to commit violence was also “liable to suffer death.” What import, if any, this difference in language suggested is open to interpretation. A quick look at the internet site of dictionary.com reveals that the term “suffer” can mean “to undergo a penalty, as of death” and the sentence example is “the traitor was made to suffer on the gallows.” How or why this is the example offered is perhaps, something for us to think about. At the very least it underlines the severity and ignominity connected to the crime of treason.

Returning to the 1892 version of treason as found under the then sections 65 to 69, there is a distinction between treason and treasonable acts, which are viewed as less serious and punishable therefore by life. The distinction we now have, between high treason and treason, was effected in the 1974 Code amendments. However, “high” treason was a 12th century concept, an act of betrayal against the king, as opposed to “petit” treason, which was an act of betrayal against a person of lesser stature but still deserving of obedience. These “petty” treasons consisted of breaches against the social order, as in the murder of a lord by his servant or even a murder committed by a wife against her husband. Although the most recent iteration of the offence retains the “high” treason concept, thankfully the petty treason is no longer a valid label. However, the question still remains whether or not even today’s concept of high treason or even treason, is a valid response to acts of public betrayal, particularly in an environment where we now have in the Criminal Code offences of “terrorism.” Another overarching question we must ask is why we need so many differing offences for acts, which may be better understood as coming under the umbrella of more general offences such as counselling and conspiracy to commit murder. 

Leaving the public policy and law reform issues aside for another day, I would like to look at the offence as a charge before the courts. A quick search of Westlaw reveals only a few criminal cases involving the offence of treason. One of the most famous cases is, of course, Louis Riel and specifically the 1885 Privy Council decision refusing leave for Riel to appeal the conviction for treason and the sentence of death. But along side this case are others involving lesser personalities. Most involving wartime actions, such as Israel Schaefer, convicted of treason as a result of enabling people to travel to Austria-Hungary, “a public enemy,” during World War I and assist that country in their war effort. In that 1919 case, the Supreme Court of Canada, refused Schaefer the right to appeal as the decision convicting him was “so clearly right that an appeal from it would be hopeless.” In fact, most reported cases of treason tend to be those prosecuted during that time period.

It must be noted that with the advent of terrorism offences in the Code, there is a renewed prosecution for offences, which involve an aspect of treason or betrayal against the person’s home country. For example, in the 2014 Alizadeh case, Justice McKinnon of the Ontario Superior Court commented, in sentencing the offender to 24 years imprisonment for terrorist acts involving the possession of explosive materials, that Alizadeh “betrayed the trust of your government and your fellow citizens” and had “effectively been convicted of treason, an act that invites universal condemnation among sovereign states throughout the world.” In this modern concept of treason, the act of “war” is diffused as it becomes any act or omission, as defined by s. 83.01 of the Criminal Code, which compels a government to do or refrain from doing an act. 

Before I end this podcast I do want to mention other aspects of the crime of treason, which is peculiar to that particular offence. Section 46(3) makes treason by a Canadian citizen or “a person who owes his allegiance to Her Majesty in Right of Canada” a crime even if it is committed outside of Canada. Similar wording is used in the Security of Information Act to deem certain persons having committed an offence in Canada even if the acts or omission occurred outside of it.

Section 46(4) declares that an act of conspiracy to commit treason is an “overt act” of treason. That subsection is in answer to 46(2), which requires an overt act in furtherance of the treason. This requirement is not always needed for conspiracy in Canada but can be an evidentiary requirement in American conspiracy jurisprudence – see United States v. Skillman, 442 F. 2d 542 (1971). The section clarifies that treasonable conspiracy is an overt act for the purposes of the section. This nomenclature is consistent with treason from the English common law and with the offence of treason in the 1892 Code.

Section 47(3) suggests one cannot be convicted of treason based on the evidence of one witness alone unless the witness is corroborated “in a material particular” by other evidence in the proceeding. Corroboration is also a common law requirement carried into our Criminal Code and is a concept, which recently has fallen away, such in the case of a child witness (see s. 659) or in a sexual assault (see s. 274). However, corroboration is still required for a perjury offence (see s. 133) and for procuring a feigned marriage (see s. 292).

Another unusual requirement is the limitation periods under section 48. Proceedings for treason under 46(2)(a), which is the using of force or violence to overthrow the government, must be commenced within three years from the time when the offence is alleged to be committed. Originally, this limitation applied to all treasonable conduct other than treason where there was an attempt to kill or injure her Majesty or the person did kill or injure the sovereign. The final limitation is from the original Code version requiring that “No proceedings shall be commenced under section 47 in respect of an overt act of treason expressed or declared by open and considered speech” unless an information setting out the overt act and words is laid within 6 days after the alleged words were spoken and a warrant for the accused’s arrest is issued within 10 days after the laying of the information.

These “oddities” are in place to highlight the uniqueness and rarity of the offence. The fact treason is not viewed as a “modern” crime, raises the question of law reform and a removal of the offence from the Criminal Code as those acts underlying the crime could be dealt with through other more general charges in the Code. This argument will have more weight considering the advent of the terrorism offences and the sweeping applicability of those offences when viewed in contrast to the treason sections. Whether this fact will be used in any future Charter argument will remain to be seen but as it stands, treason is a part of our history and a part of our present as found in our Criminal Code

The “Science” Behind R v Tatton

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

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

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

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

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

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

 

 

 

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

                      (a) the nature of the force or threat;

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal fault by reason of intoxication

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

  Application

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

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

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

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

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

 

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

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

Section 32 reads as follows:

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

       (a) is necessary to suppress a riot; and

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

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

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

(a) he acts in good faith; and

(b) the order is not manifestly unlawful.

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

         (a) is necessary to suppress the riot; and

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

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

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

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

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

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

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

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

Preventing breach of peace

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

Arrest for breach of peace

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

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

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

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

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

 

 

 

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

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

The section reads as follows:

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

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

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

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

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

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

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

 

 

 

 

 

Section 25 – The Use of Necessary Force In Law Enforcement Part One: Episode 30 of the Ideablawg Podcasts on the Criminal Code of Canada

As a result of the release of the Iacobucci Report on the Toronto Police Service’s response to people in crisis precipitated partly by the Sammy Yatim incident and the recent Michael Brown incident in Ferguson,  never before has the issue of necessary use of force in law enforcement been so prominent in the public forum. Although much of the present media focus has been around body worn cameras for police to monitor and record police practice relating to the use of force, the Iacobucci Report actually goes further and recommends a “zero death” policy, meaning “no death of the subject, no death of the officer involved or of any member of the public.” Whether or not that is possible is a debate for another day but for our purposes, we need to face the reality that force can be used and is authorized under section 25 of the Criminal Code.

We should first note the section descriptor – “Protection of Persons Acting Under Authority.” The section therefore is not a “use of force” section as we tend to describe it but a section focused on protection of those administering or enforcing the law. The protection afforded by the section precludes attaching criminal liability to the authorized person’s actions. Also note that the section covers all “persons” who are acting under authority and not merely the police. Thus, private citizens benefit from this protection as well. In fact, let’s look at the first part of s.25(1) as it lists the “persons” so protected as follows:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

 (b) as a peace officer or public officer,

 (c) in aid of a peace officer or public officer, or

              (d) by virtue of his office,

 

As is with most sections in the Code, the section is both narrow and broad scope. It is narrow as the persons protected must be acting under authority or as required by law. It is broad as the act can be “anything.” Furthermore, the person so authorized, as already mentioned, may be a private citizen or a law enforcement officer as per the definition of “peace officer” and “public officer” under the s.2 definitions. The section also includes those persons aiding law enforcement and those individuals acting “by virtue of his office,” meaning a person who is acting in a position of a public nature. Now, lets look at the complete subsection 1:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

                  (b) as a peace officer or public officer,

                  (c) in aid of a peace officer or public officer, or

                  (d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

 

 

Thus, the protection against imposing criminal liability is limited and only protects the actor if he or she “acts on reasonable grounds.” If the person does act on reasonable grounds then he or she is “justified” in his authorized actions and “in using as much force as is necessary” for effecting that purpose.  This section outlines a common law defence of justification. I have discussed justifications in previous blogs and podcasts but I will provide a refresher. Justifications (and excuses) are defences, which are available after the essential elements of a crime, both the prohibited act and the criminal intention, have been proven. Thus, these defences are a concession to human frailty and a recognition that people are, well “human,” and may act contrary to the law in special circumstances. These special circumstances usually involve exigent circumstances whereby the person has no choice but to act in a manner inconsistent with the law. In the case of justifications, which are defences of the person and property, the offender, by raising the defence, is challenging the “wrongfulness” of the act. In other words, the act is a crime in name only as the circumstances require that the offender be absolved of any criminal responsibility. Thus, the conduct is not wrong as the offender is justified in using force. Of course, flowing from this argument is the requirement in every justification that the force applied be no more than necessary to repel the perceived harm. This brings us full circle to this section as a “use of force” section and the emphasis on whether or not the force was “excessive” in the circumstances.

It is useful to compare the wording of subsection (1) to the old defence of the person sections. I say, old, as the previous sections 34 to 42 were repealed and replaced by the new sections 34 and 35. In the old section 34, which provided for self-defence against an uprovoked assault where death or grievous bodily harm is not intended, an accused was justified in using force that is “no more than is necessary” to defend himself. As you can appreciate, self defence for a non-authorized person is restricted and the admonishment is to minimize the use of force to what is only required. In contrast section 25 is permissive as the authorized administrator of the law is permitted to use as much force as is required to fulfill his duty. The new section 34 does not use the same language but instead requires that the act be “reasonable in the circumstances.”  The “nature and proportionality” of that response, under the new section, is only one factor in determining the reasonableness of the act in the circumstances of the case. In contrast, section 25 only offers a list of factors in determining the reasonableness of the authorized person’s actions, where the force is “intended or likely to cause death or grievous bodily harm.”

Another similar section, which protects persons in authority, is section 43 concerning the correction of a child. In that section, a schoolteacher, a parent or a person standing in place of a parent is justified in using force to correct a child if the force “does not exceed what is necessary under the circumstances.” Again, this section appears to restrict as oppose to permit. This section does not contain a list of factors in considering the necessity of the actions.

The history of the section also sheds some light on the protection afforded by the section. Originally, the precursor to section 25 covered a number of sections. For example the present s. 25 not only applies to an arrest but also refers to the use of force in executing a warrant, in incarcerating a sentenced offender and in preventing an escape from a penitentiary. In fact, historically, these scenarios were part of the use of force protection but were found in separate sections. For example, in the original 1892 Code under Part II “Matters of Justifications or Excuse,” arguably similar subject matter is covered in the multiple sections from 15 to 44, which comprise over half of the sections found under that Part. There were some changes by the 1905 Code but major changes, as in the compression of the bulk of these sections (essentially sections 15 to 37 from the 1892 version), did not come until the numerous amendments in the 1950s, which resulted in major changes to the 1953-54 Code. It is in this version that the various sections were combined and re-enacted as section 25.

How does the present iteration compare with the 1950s version? The first part of the present section, under (1) to (3), is substantially identical to the version used half a century ago. In other words, no changes have been made to the essential elements of this legal protection. However, significant changes were made to the latter part of the section under subsections (4) and (5) as a result of the 1994 amendments to the Code. Those changes brought in the list of “factors” to assist in the determination of the justifiability of using force “ that is intended or is likely to cause death or grievous bodily harm to a person to be arrested.” In the next podcast we will look at these changes more closely as well as the general issue of excessive use of force under the section.

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

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

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

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

Section 24 has two subsections and reads as follows:

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

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

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

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

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

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

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

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

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

 

 

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

The Hart Case: A Long Way From Wray?

Upon review of the newest Supreme Court of Canada case, the much-anticipated Hart case on the admissibility of confessions resulting from Mr. Big investigations, it is worthwhile to return to the basics. Certainly Mr. Justice Moldaver, in his majority decision, did when he concluded that in the first prong of the applicable evidentiary test is the judicial weighing of the probative value of the evidence against the prejudicial effect. Although Justice Moldaver returns to the 1981 Rothman case as a basis for this “old school” rule, the evidential principle comes from the 1971 Wray case.

John Wray was charged with what was then called non-capital murder – a capital murder was punishable by death and at that time was reserved for the killing of on-duty police officers and prison guards. The victim was shot during the course of a robbery and there were no witnesses to the actual shooting. It was only through the police investigation, namely a lengthy police questioning, that John Wray ultimately signed a statement indicating where he disposed of the rifle used to shoot the victim. The rifle was found in the place so indicated and Wray was charged. At trial, after a voir dire on the admissibility of Wray’s statement, the trial judge ruled the statement inadmissible as it was not voluntarily given. This ruling was not the subject of the subsequent appeals. The issue on appeal was the trial judge’s further ruling that Wray’s involvement in the finding of the rifle was inadmissible as well. The Ontario Court of Appeal unanimously upheld the trial judge’s decision. The majority of the Supreme Court of Canada, with Mr. Justice Martland writing the decision, allowed the appeal and sent the matter back for a new trial.

Although this is a case where the evidence was found to be admissible, it is the principles enunciated in this case which impacted the manner in which trial judge’s viewed admissibility of evidence thereafter. Now, it must be remembered that this case is pre-Charter and yes, there is such an animal. It should also be remembered – and I will not try to sound as if I am nagging – that there are important admissibility issues to consider separate from the usual Charter based arguments. The first consideration when faced with a confession in a case is to review the voluntariness of the statement to ensure the statement was given freely and without hope or advantage. So, although Wary is certainly pre-Charter and if determined today, the analysis under the Charter lens would no doubt differ, the case started a line of reasoning, which can be traced to the Hart decision we have today. What is also fascinating about this line of reasoning is to see how this discretionary evidential principle of exclusion or admissibility – whichever way you want to view it – starts as a very restrictive and rarely to be exercised act to the pro forma requirement of a “new common law rule” as articulated by Justice Moldaver in Hart.

Justice Martland’s reluctance to “approve” of a discretionary exclusion of evidence is palpable. Yet, the English authorities require it.  He clarifies the difference between the “unfortunate” effect on the accused of relevant admissible evidence, which would be prejudicial to the accused and the “allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.” Of special note are the adjectives or qualifiers used by Justice Martland when he finally articlulated the discretion as arising “where the admission of evidence, though legally admissible, would operate unfairly, because, as stated in Noor Mohamed, it had trivial probative value, but was highly prejudicial.” Notice the emphasis added. The added practical difficulty for Justice Martland with excluding evidence on the basis of “unfairness” was the interpretation of that word. In Martland’s view, therefore, the discretionary exclusion of relevant and probative evidence should be “very limited.” This restrictive view of the discretion was reiterated in the Hogan case, in which Justice Martland was a member of the majority.

Within a decade of the Wray judgment, as per the Rothman case, the limited discretion reluctantly approved of by Justice Martland is referred to as an “exclusionary rule” by the then, Justice Lamer, concurring with the majority. Interestingly, Justice Lamer refers to the Wray principle, while Justice Martland writing for the majority does not. Rothman sets out the test to determine whether or not a person taking a statement from an accused is a “person in authority” and broadened the circumstances in which a statement may not have been given freely and voluntarily.

Post Rothamn, the evidential world changed as common law evidential rules become imbued with Charter values. But this transition was not easily done or easily accepted. In Corbett, the Supreme Court of Canada struggled with the constitutionality of s. 12 of the Canada Evidence Act, which permitted the questioning of any witness, including the accused person, on his or her criminal convictions. Although the decision is unanimous in the sense that all six members agreed that s. 12 of the CEA was constitutional and recognized the trial judge, under common law, had the discretion to exclude admissible evidence (however Justices McIntyre and Le Dain did not see this discretion as permitting a trial judge to circumvent a clear legislative directive as found in s.12), there was disagreement over the exercise of that discretion. Thus, it is in Corbett, where Justice Martland’s reticent discretionary rule becomes a fully recognizable discretion in the trial judge to exclude admissible, yet prejudicial evidence. But Corbett, although not mentioned in the Hart case, seems to raise similar concerns. Through the exclusionary discretion of the trial judge, together with other evidential rules that limit the use to be made of the evidence, the law protects the right of the accused to a fair trial, which includes, as stated by the then Chief Justice Dickson, the right “not to be convicted except on evidence directly relevant to the charge in question.” This protection “strives to avoid the risk of prejudicing an accused’s trial.” These words are echoed by Justice Moldaver in the Hart case as he speaks of the “risks inherent in the Mr. Big confessions,” which require a legal response in order to protect “accused persons, and the justice system as a whole” from “abusive state conduct.” It is, therefore, Martland’s reluctant rule, the seemingly rare discretion, which blossomed under the Charter lens, which the Hart Court turns to as the legal protection needed. Yes, we have come a long way since Wray and there is no looking back.

 

 

 

 

 

Section 23.1: The "Limitless" Criminal Law - Episode 28 of the Ideablawg Podcasts on the Criminal Code of Canada

One of the interesting learning moments for me, resulting from this Criminal Code podcast, is the realization that the criminal law has changed in the past three decades, which, in common law time, is a fairly short period of time. Certainly, this section, which we will consider today, s. 23.1 of the Criminal Code, is an example of how the Code can and does change the practice of criminal law. To give perspective, s. 23.1 was added to the Code in the 1985 amendments, while I was in law school. I recall those amendments mostly because I had to “re-learn” the section numbers of the Criminal Code. I particularly recall how the assault section, s. 244, was changed to the section number we use today – s. 265 - and my fear that I would never be able to remember the new section numbers. Considering I needed to look up what the old section number was to write this blog, I wonder how I could have been so worried. What I was not too concerned with at the time was the change caused by s. 23.1, which in hindsight was certainly a much bigger deal than the mere section number changes.

Section 23.1 reads as follows:

For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

Therefore, it is possible for an accused to be convicted of counseling a crime even if the person actually committing the crime is not guilty or cannot be tried and/or convicted. For example, an adult who involves children under twelve in the drug trade can still be convicted as a party even though the children, who are actually committing the crime, cannot be convicted, according to s. 13 Code, as they are statutorily debarred on the basis of age. For more on section 13 of the Code, read or listen to my previous podcast. Additionally, even though an accused who commits a counseled crime while under duress would have a valid legal defence, the person who counseled such an offence under s. 22, may still be convicted. It is also possible for an accused to be convicted as an accessory after the fact even if the fugitive offender is ultimately acquitted of the crime from which he or she was escaping. I will return to accessory in a moment as this particular mode of crime has been viewed as different than the other modes and has caused more legal controversy despite s. 23.1.

Based on the above, particularly the “Oliver Twist” example, it does make sense that the Crown be able to prosecute secondary participants on a separate basis than the main offenders. However, prior to 1985 this was not the case. This did not mean that a person involved in a crime, in circumstances where they might be a party or a counselor or an accessory, could not be charged. Indeed, prior to these amendments the charge of conspiracy was usually laid against the secondary accused. However, as we will see when we finally do arrive at the conspiracy section 465, to found a conviction under the conspiracy section is quite complicated. Certainly, more complicated than basing the offender’s participation through the party section.

Although this concept or ability to prosecute was easily accepted after 1985 for participating as a party or as a counselor to a crime, the issue of being tried as an accessory after the fact, where the fugitive offender was not convicted, was not. To understand the special status of being an accessory after the fact, we must consider the Supreme Court of Canada Vinette case from 1975. In the Vinette case, the accused Vinette was charged as an accessory after the fact to a murder committed by Vincent by assisting Vincent to dispose of the victim’s body. Vincent entered a plea of guilty to manslaughter and at Vinette’s trial, Vincent’s plea, as a “confession,” was admitted against Vinette. Vinette was convicted by the jury but the conviction was quashed by the Court of Appeal on the basis that Vincent’s plea was not admissible against the co-accused Vinette. Mr. Justice Pigeon, writing on behalf of the majority, allowed the Crown’s appeal and upheld the conviction. In Justice Pigeon’s view, the elements of being an accessory after the fact differs from the main offence and therefore is a separate charge. Thus, the usual evidentiary rules pertaining to admissions made by co-accused do not apply and Vincent’s statements are admissible. According to Justice Pigeon, not only was a charge of accessory separate from the main offence but also by its very nature must be committed after the main offence. This chronological requirement also suggested that the main offender must be tried and convicted before the accessory could be found guilty. However, after a line of cases which tried to decipher Justice Pigeon’s suggestion, it was determined that as the Vinette decision made no mention of the now s. 592, which permitted an accessory to be indicted before the main offender, the chronological argument carried no validity. We will eventually come to s.592 and revisit this conundrum.

In any event, the idea that being an accessory after the fact was a unique charge, which was intimately tied to the main offence resulted in a line of cases questioning s. 23.1 in relation to s. 23. In fact, in the delightful decision of the Honourable Justice Woods, on behalf of the British Columbia Court of Appeal in the 1993 Camponi case, the historical common law significance of being charged as an accessory after the fact was traced in light of s. 592 and s. 23.1. Again, I want to keep back some discussion of this for the much, much later s. 592 podcast but needless to say Justice Woods found no problem with trying an accessory after the fact before the main offender and no problem finding an accessory guilty even if the main offender was acquitted. To that end, and in reference to s.23.1, Justice Woods remarked at paragraph 25 of the decision that:

This section was enacted in 1986, c. 32, s. 46. with what must be regarded as an unusually confident legislative tone, it announces an intention to bring greater certainty to the law relating to ss. 21-23 of the Code. Whether it has achieved that lofty goal will be for history to decide. Suffice it to say that in the context of the present discussion its intent seems to have been to put the quietus to any lingering notion that s. 592 preserved, or was intended to preserve, the essence of the common law rule relating to accessories after the fact.

Finally the matter appeared to be truly put to rest when the 1997 Nova Scotia Court of Appeal FJS (also known as Shalaan) case came to the same conclusion as Camponi and this decision was affirmed with brief reasons by the Supreme Court of Canada. Interestingly, the controversy continued, not in the law courts per se but between the lines in the annotated Criminal Codes. In the commentary under s. 23.1, Martin’s Annual Criminal Code references the Supreme Court of Canada FJS case in support of the position that an accessory after the fact could be convicted even if the main offender was acquitted, while in Allan Gold’s The Practitioner’s Criminal Code, as least as of the 2008 version, the commentary dismissed the Supreme Court of Canada’s decision as decided per incuriam.

But we are not finished with this section and the myriad of case law this section has garnered. Recently, on April 3, 2014, the Supreme Court of Canada dismissed the leave application in the Huard case, which raised the constitutionality of the well-established principle, as really encapsulated by s. 23.1, that a party may be convicted of a more serious offence than that of the main offender. In that case, Mr. Huard was convicted as a party to a first-degree murder even though the principal offender was only convicted of second-degree murder. Counsel argued that the principles of fundamental justice, as guaranteed under s. 7 of the Charter, requires that those less morally culpable should not be punished more severely than those more morally culpable. Mr. Justice Watt, on behalf of the Ontario Court of Appeal, dismissed the argument as he found the “mere common law rule” relied upon was not a principle of fundamental justice and s. 23.1 “makes it clear” that a party can be convicted even if the main offender is acquitted or not even tried. As an aside, the Appellant in the Camponi case relied upon an article written by Justice Watt, which he wrote prior to his appointment to the Bench, on accessory after the fact and the ambiguities found in s. 592. This shows that the connections in the Canadian criminal law are indeed endless and it appears that they may be unlimited too!

 

 

Episode 28 of the Ideablawg Podcasts on the Criminal Code - Section 23.1

Section 21- Modes of Participation By Being A Party To An Offence Part One: Episode 23 of the Ideablawg Podcasts on the Criminal Code of Canada

In the next few sections, we are leaving behind the housekeeping/general sections of the Code and moving into modes of participation or the various ways an accused can participate in a crime. The general section heading is called “Parties To Offences,” although it is section 21, which deals with the specific concept of parties to an offence. Yet, the general heading is apt as “party” means to participate in an event, while s. 21 specifies, in legal terms, what is required to be a party under that section.

Before we go to that section, we must step back and consider the concept of “secondary liability.” Secondary liability is where one party (participant in an event) is not directly involved but assumes or is deemed responsible for the actions of another party who is directly involved. This type of liability, in the civil arena, has long been recognized at common law. Examples of such liability are vicarious liability and corporate liability, particularly in the area of copyright and patents.

In the criminal law, however, secondary liability has limited application, partly due to the Charter, which prohibits criminal liability and punishment on those individuals who are deemed responsible for the actions of others on the basis the individual has no mens rea for the crime or often no actus reus as well. Traditionally, in criminal law, as stated by Justice Estey in the 1985 Canadian Dredge & Dock Co case, “a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization.” This was reinforced through the application of section 7 of the Charter, when the SCC, in the 1985 Re B.C. Motor Vehicle Act, emphasized the minimum mens rea requirement for a crime required some form of mens rea, which could be found in objective liability. Thus, secondary liability, which required no mens rea on the part of the person deemed responsible, was contrary to the fundamental principles of criminal law and, therefore, contrary to the Charter.

An example of permissible vicarious liability can be found in the quasi-criminal or regulatory field such as speeding offences based on photo radar. A license plate of a speeding vehicle is caught on camera but the speeding ticket is sent to the owner of the vehicle, whether or not the owner was the actual perpetrator. Thus the owner has neither the mens rea (which in the regulatory field, depending on the punishment, is considered Charter appropriate) or the actus reus for the offence yet is still deemed guilty for purposes of the highway traffic regulation. Such a deeming of liability would be unacceptable in the criminal law as the components of a crime (criminal intention and prohibited act) would be absent and as the Charter requires some form of mens rea be present where an accused person may be subject to incarceration upon conviction. However, in the regulatory field, where public safety is at a premium and the stigma of a criminal conviction is absent, as long as the possibility of jail is not an option upon conviction, vicarious liability is acceptable.

Although this form of secondary liability is not found in the criminal law the traditional common law concepts of parties is acceptable as the accused person, in the party scenario, is criminally liable based on his or her participation in the crime albeit not as the principal or main offender. Parties may have lesser roles in the crime but their participation, in terms of criminal intention and action, is directly connected to them and to the commission of the crime, making them personally criminally responsible.

The parties sections in the Code therefore anticipate two situations of persons deemed parties: one situation as found in the following section 22 of the Code embrace those accused who induce others to commit crimes, with or without that accused person’s direct involvement in the criminal act and the other situation, as in s. 21 involve those accused persons who help others commit crimes.

Now let’s turn to section 21. There are four types of parties to an offence as outlined in this section.

The first type of party is found under section 21(1)(a) and is as follows:

s. 21. (1) Every one is a party to an offence who

         (a) actually commits it;

This may seem contrary to the party principles I just outlined but in fact it is a prosecutorial aide. This subsection, by making a principal or main offender (in other words the accused person who actually commits the offence) a party to an offence, relieves the Crown from specifying in the Information or at trial whether an accused person is the principal offender or a party. Thus, the Crown need not prove at trial that any specific accused was the principal offender as long as the Crown proves each accused knowingly assisted or abetted the other. This means multiple accused can be convicted as parties without anyone being convicted as a principal.

The second type of party is as follows:

s. 21. (1) Every one is a party to an offence who

(b) does or omits to do anything for the purpose of aiding any person to commit it;

Here, the person becomes a party by “aiding” another person, be that person a party or principal, in the commission of the offence. Here, the word “aid” means providing assistance. The party may “aid” by doing something or by failing to do something. The Crown must prove the accused aided as the actus reus or prohibited act of being a party. Remember that the Crown must not only prove an accused is a party but must also prove the elements of the offence to which the accused is a party.

The third way of becoming a party is under s. 21(1)(c):

s. 21. (1) Every one is a party to an offence who

(b) abets any person in committing it.

The actus reus here is abetting, which, according to the SCC in R v Greyeyes, includes "encouraging, instigating, promoting, and procuring" the crime.

To “aid” or “abet” are distinct forms of liability but what is the difference? The best way to explain the difference is through the following example: a person who distracts a security guard in a store so another person can steal an item, is acting as a party to the offence of theft by “aiding” the principal who took the item. Conversely, a sales clerk who encourages and allows another person to take an item is “abetting.”

However, in both of these forms of liability, the mere presence of the accused at the scene of the crime is not enough to convict the accused as a party nor is the mere inaction or passive acquiescence of the accused enough to convict. In the seminal Supreme Court of Canada (SCC) case on the issue, Dunlop and Sylvester v The Queen from 1979, the two accused were charged, with others, for a “gang” rape but were acquitted by the majority of the SCC as, according to the evidence, the two saw the rape but they did not encourage or assist in the act. Neither did they try to stop it, they simply left. Morally wrong - yes -but not legally responsible.

Mere presence and passive acquiescence may be enough if accompanied by other factors such as prior knowledge of the principal’s intention or if the presence of the accused prevents the victim from escaping or receiving assistance. Also, a failure to render assistance may be enough to make an accused person a party if that person was under a legal duty to act. For example, merely watching a crime being committed does not make someone a party unless the person is a police officer (let’s make this easy and say on duty and in the execution of that duty) and is therefore under a legal duty to stop the crime.

The Crown must also prove the mens rea requirement for s. 21(1) by showing the accused intended to assist or encourage the principal accused. However, the Crown need not prove that the accused knew the exact details of the crime to be committed. The accused need only be aware of the type of crime to be committed and must be aware of the circumstances necessary to constitute the offence. A final caution: motive is not intention. The accused need not desire the end result for the mens rea requirement.

If the accused is charged as a party to a murder, the mens rea requirements for murder are applicable. Therefore, the Crown must prove that the accused party intended death or was reckless whether or not death ensued. This requirement is Charter based and requires the Crown prove the accused person had subjective foresight of death. Due to this high level of liability, an accused party may be acquitted of being a party to the murder, even if the principal offender is convicted of murder, but convicted as a party to a manslaughter, which requires a much lower level of mens rea found in the objective foresight of bodily harm. (Click on the hyperlinks for the case authority)

The fourth type of liability as a party under section 21(2), common intention, will be the subject of our next podcast!

 

 

Episode 23 of the Ideablawg Podcast on the Criminal Code of Canada: Section 21(10 - Parties - Modes of Participation

Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcasts on the Criminal Code of Canada

Reviewing the past few episodes, I have noticed a thematic connection: from section 13 to the section 18, the discussion has focused on the availability of specific defences. Today’s section 19 continues that Code conversation by speaking of the “defence” of “ignorance.” The section reads as follows:

Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

In fact, the section does not set out a defence but seems to take away a defence, the one of – I-did-not-know-that-was-a-crime – kind of defence. We know that mistake of fact is an excuse, which if accepted goes to the mens rea or criminal intention required but why should ignorance of the law not be accepted as an excuse considering there are so many laws. Not even a lawyer can keep track of the myriad of laws and regulations out there so why deem knowledge to seemingly naïve citizens?

This presumption of knowledge has actually been in place a long time: not only since the Code’s inception but also since laws were even glimmers in Hammurabi’s eyes.  The actual section comes from the English common law, which hails from a Latin maxim found in Roman law: ignorantia juris non excusat. Once laws were codified and therefore written down for all to see, this idea, that a breach of the law cannot be excused through lack of knowledge, became an important aspect of the internal workings of the law.

One reason for this presumption is to ensure that people did not become a law unto themselves – one cannot pick and choose the laws he or she wishes to follow. Everyone is considered to be equally knowledgeable and therefore equally liable if the law is breached.

Practically, it is about incentives – ignorance is no excuse so you better inform yourself before you do it. This ensured people did not remain willfully blind. Of course, as already mentioned, to inform oneself of all the laws is an almost impossible burden, but section 19 places the information burden, to a certain extent, on the individual as opposed to the state. The government does inform the general public of our laws through publications on websites, books, and, formally, in the Canada Gazette. It is then the responsibility of the specific individual to take advantage of these publications and inform him or her as needed. Putting it into historical context, if a citizen breaks the law, Hammurabi need only say “there is no excuse, the law is clearly here on the Stele!”

Histrionics aside, as I said earlier in the podcast/posting, section 19 “seems” to take away the defence of ignorance of the law. There are two reasons for this caveat.

First, there are numerous scholarly articles on how ignorance is in fact an excuse, in certain circumstances, and that the blanket statement in section 19, and found in the legal principles of most western legal systems, simply does not reflect the true state of the law. In support of this view, I recommend just some of the following articles: “Ignorance of the Law is No Excuse?,” “Ignorance of the Law is No Excuse, Except for Tax Crimes,” “Ignorance of the Law IS an Excuse, But Only for the Virtuous,” and my favourite, “The Death of a Maxim: Ignorance of the Law is No Excuse (Killed By Money, Guns, and a Little Sex.”

Second, there is a defence known as mistake of law, which I submit is not exactly an ignorance of the law excuse, and has found only limited success in the criminal law arena. This defence, known as the defence of officially induced error, is not so much about ignorance as it is about knowledge and from where that knowledge comes. This defence, which has its origins in the regulatory context, is a form of due diligence, which exonerates an accused who reasonably relies upon an erroneous legal opinion or relies upon incorrect advice from an official responsible for that particular area of law. So, the defence does not revolve around a complete failure to inform but around a mistaken but reasonable belief in the interpretation of the law. This exception to section 19 is permitted, as stated in the Supreme Court of Canada Jorgensen case, to ensure “that the morally blameless are not made criminally responsible for their actions.”

The main conceptual difficulty with s.19 is that knowing the law, as in knowing what the section says, does not mean one understands the law or understands what kind of behaviour a particular section may or may not prohibit. Meaning hinges on interpretation and therefore depends upon case law. To access this judge-made law one must have legal expertise. Surely, s. 19 does not take into account the seemingly endless complexities of our laws and of the legal interpretation of them.

On that note, I leave you to consider another Supreme Court of Canada decision, in the McIntosh case, wherein the then Chief Justice Lamer, on behalf of the majority, disapproved of reading-in words into the then s.34, self-defence section, as:

Under s. 19 of the Criminal Code, ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law. Yet we can hardly sustain such a presumption if courts adopt interpretations of penal provisions, which rely on the reading-in of words, which do not appear on the face of the provisions. How can a citizen possibly know the law in such a circumstance?

The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach, which is sensitive to liberty interests. Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law.

Section 19 may provide certainty in the criminal law but the real question is whether it provides clarity.

Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcast on the Criminal Code

Section 18 – A Duress Addendum? Episode 20 of the Ideablawg Podcasts On The Criminal Code of Canada

Last week we discussed the codified version of the common law defence of duress or, as it is know in the Code, “Compulsion By Threats.” This week, we have a section, also concerned with compulsion but the specific compulsion, which may arise as a result of marriage. Section 18 faces this possibility and states as follows:

No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person.

This section is saying that the criminal law does not presume that a person who commits an offence in the presence of a spouse has been compelled to do the criminal act merely by virtue of their relationship. Immediately, one speculates on why it is the marriage relationship singled out in this fashion. Why does the section not speak to the parent/child relationship, which is also a strong bond between two people or even a sibling relationship? The answer lies in the original version of this section and although the present iteration seems benign enough, the historical version, on today’s standards, is much more contentious.

The section was in the original 1892 Code under the then section 13 and was entitled “Compulsion of Wife.” The section was, as you probably guessed, based on gender stereotypes as it held that “no presumption shall be made that a married woman committing an offence does so under compulsion because she commits it in the presence of her husband.” This one-sided notion was changed to gender-neutral language in the 1980 Code amendments. But this still does not explain why this section was codified in the first place.

As I explained in previous podcasts, there are many common law defences available to an accused and still available through s. 8(3). I have talked about the major types of defences that are regularly used today – such as justifications and excuses and the defence of mistake of fact. However, there are other common law defences, which are not regularly used such as the defence of de minimus non curat lex. This translates to the “the law does not concern itself with trifles” and has been used in many different kinds of scenarios such as in theft cases where the subject matter value and/or the criminal actions are trivial. Leaving that aside, there are, as I said, other common law defences and the defence of marital coercion is just one such common law defence.

The defence, if successful, exonerated a woman of criminal responsibility for criminal acts carried out in the presence of her husband on the reasoning that the wife unquestionably obeys her husband and therefore has no choice but to commit the criminal offence. She is not acting under her own volition and therefore should be excused for her conduct. It is a defence that inures only to the benefit of the married woman as in common law the husband is not so duty bound. Although the defence appears to be very similar to the defence of duress there are differences in application. The accused must be the legal wife of the husband in question and therefore legally married at the time. Even an accused who has an honest but mistaken belief of marriage cannot use the defence. There is some case law in the United Kingdom, which also suggest that the coercion need not be physical but can be moral and psychological as well.

Although this common law defence, in a modified form, is still in use in the United Kingdom (the defence cannot be used for murder or treason, see Section 47 of the Criminal Justice Act 1925), section 18 of the Criminal Code abrogates that defence. As we discussed in earlier episodes, common law defences are only available unless they are “altered by or inconsistent with” the Criminal Code and thus the defence of marital coercion, be it husband or wife, is not available. Even so, this does not preclude the accused person from raising the defence of duress, either under the common law or under s.17 as applicable.

As an aside, there is a move to abolish the defence in the UK as a result of the 2013 Pryce case. Vicki Pryce, a well-known government economist, raised the defence in her trial of perverting the course of justice when, at the behest of her then husband, she lied to the police that she was driving the family car allowing her husband to avoid demerit points. The use of the defence in this case, caused an outrage in British society, particularly in light of Pryce’s elevated position in the government. She and her husband were convicted and sentenced to eight months incarceration. Just recently, the UK government announced plans to abolish the defence.

 

 

Episode 20 of the Ideablawg Podcast on the Criminal Code of Canada: Section 18 - A Duress Addendum?