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

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

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

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

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

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

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

Section 62(1) reads as follows:

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

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

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

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

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

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



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

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

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

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

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

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

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

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

61 Every one who

(a) speaks seditious words,

(b) publishes a seditious libel, or

(c) is a party to a seditious conspiracy,

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) to point out errors or defects in

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

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

(iii) the administration of justice in Canada;

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

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

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

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

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

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

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

Section 57 reads as follows:

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

(a) forges a passport, or

(b) knowing that a passport is forged

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) the exceptions to those requirements,

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

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

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

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

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

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

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

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








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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) for genealogical purposes;

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

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

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

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

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

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

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


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

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

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

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

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

Section 55 presently reads as follows:

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

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

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

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

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

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

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

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

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

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

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





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.





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

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

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

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

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

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

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

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

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

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

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

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

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

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

Episode 45 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 50 Assisting the Enemy and Failing to Prevent Treason

Section 50 continues our discussion of prohibited acts under the Part relating to offences against the public order. Section 50 contains two separate offences: assisting an enemy of Canada to leave the country without consent of the Crown and knowingly failing to advise a peace officer or a justice of the peace of an imminent act of treason. The full section reads as follows:

50(1) Every one commits an offence who

            (a) incites or wilfully assists a subject of

                        (i) a state that is at war with Canada, or

(ii) a state against whose forces Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the state whose forces they are,

to leave Canada without the consent of the Crown, unless the accused establishes that assistance to the state referred to in subparagraph (i) or the forces of the state referred to in subparagraph (ii), as the case may be, was not intended thereby; or

(b) knowing that a person is about to commit high treason or treason does not, with all reasonable dispatch, inform a justice of the peace or other peace officer thereof or make other reasonable efforts to prevent that person from committing high treason or treason.

These offences are indictable and pursuant to subsection 2 of the section, the maximum punishment is fourteen years incarceration. As is evident from the wording of the section, these offences are closely aligned to treason and treasonable acts. Indeed, the offence of failing to inform on a person about to commit treason is essentially an offence of being an accessory or party to the treason, either before the fact or after. Originally, this section in the 1892 Criminal Code was worded to that effect. The change came in the 1915 amendments, most likely as a result of World War One, when the offence of assisting an “alien enemy” was added immediately after the offence of accessory section. In 1927, the two offences were combined under one section. Finally, in the 1953-54 amendments to the Code, the specific reference to accessory was deleted and the section was re-enacted as it stands today.

Needless to say, I have been unable to find any reported decisions on this section other than a reference to the duty to report under s. 50(1)(b). In the 1990 Dersch case, the BCCA considered the seizure of blood samples in a case of suspected impaired driving where the accused was unconscious when the samples were taken for medical purposes. The issue of confidentiality of medical information was considered with the acknowledgement that such confidentiality was subject to exceptional circumstances such as a statutory duty to report. Section 50(1)(b) was cited as an example of such an exceptional situation.

The mens rea requirements for this section is of interest. It could be argued that both offences under this section require a high level of mens rea. In s. 50(1)(a) the use of the word “wilfully” suggests the requirement for a high level of subjective liability, which does not include recklessness. However, the term “willfully,” does not necessarily denote a high level of subjective mens rea as per the 1979 Ontario Court of Appeal case of Buzzanga and Durocher. The contra-argument would rely on the context of this offence, including its connection to treason and the severe punishment attached to conviction, as support for a high level of mens rea. But, s. 50(1)(a) reverses the onus of proof onto the accused by requiring the defence to “establish” that the assistance rendered was not intended. This reverse onus would certainly be subject to a Charter argument under s. 7 and s. 11(d). The mens rea requirement for s. 50(1)(b) is easier to discern as it requires the accused to have knowledge of the expected treason, which clearly requires proof of a high level of subjective liability by the Crown.

Although this section has been historically underused, considering the rise in alleged acts of terrorism, there is a possibility the section could be used in the future. There could be an argument that members of certain terrorist groups are in fact “at war” with Canada and a further argument that these groups in some ways constitute a “state” for purposes of the section. In fact, some of these groups do identify as such. However, in light of new legislation, both within the Code and through other federal statutes, relating to this area, it is more likely the government will prefer to lay charges under this newer legislation, which provides a broader basis for conviction. Probably the best indication of the viability of this section is whether or not it remains in the Criminal Code, in its present form, after the much anticipated government review of the Criminal Code.


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

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

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

Section 45 reads as follows:

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

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

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

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

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

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

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





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


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

Let’s read the section in full:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

           (b) they believe on reasonable grounds that another person

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.


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

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

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

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

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

 (a) to prevent the commission of an offence

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

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

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


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

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

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

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

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

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

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

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

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

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

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



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.