Some Initial Thoughts on the Senate Report on Criminal Justice Reform

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

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

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

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

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

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

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

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

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

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

 

 

 

Can R v Antic “Bail” Out The System? A 150th Birthday Wish

R v Antic is a welcome decision from the Supreme Court of Canada. No one can argue with a re-affirmation of what is at the core of our criminal justice system – the presumption of innocence. Justice Wagner neatly reminds us of the key role that the principle of fundamental justice has in our adversarial system. Indeed, one can argue that the presumption of innocence is at the very heart of our system and reflects a cherished societal value. That value is not just a “legal” one but a moral one as well. To presume people are essentially “good” is a comforting thought and one we should promote and celebrate. But, as recognized in the Antic decision, we tend to forget the “good.” This type of “reminder” is needed in the courts of law where justice is meted out in often chaotic circumstances. “Justice” happens in times when the court list seems endless and in circumstances where the parade of in-custody accused make it difficult to separate them into individuals. The Antic decision should make for a pause that is welcome.

Antic not only assists in humanizing the system but also in ensuring the courts, when faced with a heavy case load, are mindful of the authority it wields. The “ladder of liberty” approach the judicial interim release section creates is not something to be side-stepped or even two-stepped. Each rung must be deliberately weighed before proceeding onward and if a rung of the ladder feels “right,” if the weight placed on it works, then pursuant to section 515, the journey stops. It stops because reasonable bail is constitutionally guaranteed. It stops because the presumption of innocence is weighing in on the side of justice. It stops because it should.

 

Bail is complicated. If you ask any Provincial Court Judge what exactly they do day in and day out, they will tell you two things: bail and sentencing. The beginning and end, so to speak. These two procedures are the book ends of our justice system and without the proper use of them, the whole structure can fall and fail. In the post-Jordan fall-out, we need to be aware of these bookends and what a culture of complacency means as it relates to the proper administration of justice. Are we missing something then when we point fingers at trial delays or is it merely part of the heavy weight the system feels as it climbs up the rungs of the ladder.

 

Antic should then be a call to action for everyone. A call to be ever mindful of the underlying core values that push our justice system along and that make it an integral part of our unique Canadian democracy. In a few weeks, we will be celebrating our 150th year as a nation. We should at that time also be re-committing ourselves to the Charter values that define us and bring us together as a nation. This includes respect for the proper administration of justice through our commitment to make the system better for all those who walk its halls. This can and should be done by all stakeholders working together for, as Justice Wagner described it, an “enlightened criminal justice system.” Let’s take direction from the highest court and instead of resisting change, let’s make it happen. This is my birthday wish for Canada. Let’s blow out a candle and see it done.

The Delicate Balance of Sentencing: The Application of the Totality Principle in Regulatory Offences

Chief Justice Lamer succinctly described the sentencing process and the sentencing judge’s role in that process in R v M(CA), [1996] 1 SCR 500 (CanLII):

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. (at para 91)

In the recent split decision of the Alberta Court of Appeal in Alberta (Health Services) v Bhanji, the court considered the “delicate” balance needed in determining a fit global sentence in quasi-criminal or regulatory offences where the only sanction available is a monetary one. Specifically, in Bhanji, the penalty provision in section 73 of the Public Health Act, RSA 2000, c P-37 was at issue. However, in an arena where public safety is paramount and sanctioning limited, this “delicate” balance is difficult to maintain. Indeed, the response tends to be a pure mathematical exercise, an apportioning of blame through numbers.  The Bhanji decision is an excellent reminder that regulatory behavior does matter and that sentencing is not mere number crunching, nor is it simply “the cost of doing business” (at para 17). Rather, regulatory sanctioning must be an even-handed reflection of society’s disapprobation for public welfare misconduct. In an era where the health and welfare of the “community” is becoming increasingly more important to societal well-being and sustainability, regulatory responses must keep pace with this priority.

The facts of Bhanji describe an all too familiar scenario. The motel at issue in the case was owned by a married couple through a closely held numbered corporation. The motel was part of a family inheritance and the couple, who did not live in the area, employed a manager for the property. The facility was inspected by public health officials and on June 6, 2011 the corporation was ordered to repair the facility, which was in a derelict condition, posing public health and safety hazards. Renovation work was started but some long-term residents remained on site despite the poor condition. The remedial repair efforts continued for a lengthy period, causing the health officials to issue an Order for closure of the motel on June 8, 2012. Finally, on October 4, 2012, the corporation, the couple, and their seventy-two-year-old uncle, who was helping with the renovations, were charged with 144 offences under the Public Health Act covering the period from June 27, 2011 to September 6, 2013. During some of the time covered in the Information, although the facility was not in compliance with the Act, there were no real risks to the public as there were no residents (at para 17).

The offences were narrowly framed, pertaining to several specific violations in each motel unit. Many of the offences overlapped by relating to similar violations for closely connected items of disrepair. For instance, two charges for the same unit engaged the same issue of bathroom disrepair and involved the same problem, a lack of proper waterproofing of the shower/bath area: one offence was a failure to maintain the wooden shower frame and the other offence alleged inadequate caulking. Every individual motel unit which suffered the same deficiency was the subject of a separate charge. In the majority’s view, this type of “doubling up” of charges resulted in “over charging” for the number of offences arising out of the same transaction and the number of closely related parties charged (at para 76).

The sentencing principles engaged in the regulatory sentencing process would be familiar to any criminal lawyer making sentencing submissions in the criminal courts. Section 3 of the Provincial Offences Procedure Act, RSA 2000, c P-34 incorporates applicable Criminal Code provisions, to the extent the provisions are not inconsistent with the Act or regulations, effectively importing the “Purpose and Principles of Sentencing” as found in sections 718 to 718.2. Of note, and not referenced in Bhanji is a further sentencing section, 718.21, added to the Code in 2003, on factors to consider in sentencing an “organization.” The term “organization” is defined under section 2 of the Code and includes a “body corporate” or any business association such as a company or partnership. I will return to these sentencing factors later in this post. The section that is discussed in Bhanji is the fundamental sentencing principle as codified under section 718.1, that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

This key concept of proportionality is central to the Bhanji decision as it directly engages the further sentencing concept of “totality.” The concept of totality, arising both from common law and statute, requires that the global or total sentence imposed on an accused, or in the regulatory sense, the defendant, must not be, in the words of section 718.2(c) of the Criminal Code “unduly long or harsh.” This sentencing concern was at issue in Bhanji as multiple parties were charged with multiple offences resulting in a total fine of some magnitude. The four defendants entered a plea of guilty to count one in the Information, which was an offence of failing to comply with the remedial work orders for 801 days pursuant to section 73(2) of the Act. Under that provision, an offender is liable to a fine of not more than $100 for each day of non-compliance, resulting in a potential maximum fine for each of the defendants of $80,100. Considering the close relationship of the defendants, the Bhanji family would be liable for a maximum fine of $320,400 on that count. The defendant corporation entered pleas of guilty to 40 of the further 143 charges with each charge having a maximum fine of $2000, amounting to a total maximum fine of $80,000 for the 40 offences. These further counts related to specific deficiencies identified in the original inspection. There was, therefore, an overlapping of the actus reus or prohibited acts, as delineated in these original violations, with count one, which was the failure to comply with the subsequent order to remediate those deficiencies. The total potential fine for all counts and for all defendants was $400,400.

At the sentencing hearing, the prosecutor urged the trial judge to impose a global monetary penalty that was not simply “a cost of doing business” and reflected the sentencing principle of deterrence (at para 9). The prosecutor grouped the 41 offences into three categories: general maintenance issues, items relating to public health, and more serious violations involving risks to the safety or lives of the guests and tenants. On count one, where the maximum global fine would be $320,400, the prosecutor submitted the “starting point” would be half the amount or $160,200 divided evenly between the four defendants, $40,050 per defendant (at para 10). For the remainder of the corporate convictions, the prosecutor suggested the maximum fine for the seven offences in the most serious category and the balance of the offences should attract a fine of $1000 each, again 50% of the maximum, for a total fine of $47,000. In real terms this would be a global fine of $207,200.

The defendants’ counsel, who acted for all four parties, submitted that the penalty should consider the defendants’ actions to remediate and should recognize that for a part of the period of non-compliance, the facility was without tenants. Counsel also identified the potential for “over-charging” through multiple counts against multiple closely related parties. Additionally, the motel, due to its poor state, was not profitable. In other words, the fines would not be merely a “cost of doing business” but would be a very real penalty to the defendants. Counsel submitted the fine on count one should be $2500 for Mr. and Mrs. Bhanji and $1000 for the uncle. For the corporation, the global fine should be $52,250 with a “global discount” for totality, bringing it down to $22,250. The final amount for all defendants would be $28,250, close to 14% of the fine suggested by the prosecutor.

The sentencing judge acknowledged that the sentencing principles engaged in the case involved deterrence, proportionality and totality. On count one, involving non-compliance with remedial work orders, the court imposed $20,000 fines on Mr. and Mrs. Bhanji separately and a $3000 fine on the uncle. The corporation was fined $50,000 plus the maximum fine of $2000 for seven of the most serious breaches and $1000 for each of the remaining 33 charges for a total of $97,000. The global fine for all counts on all defendants equaled $140,000 (at paras 18-19).

On appeal the Summary Conviction Appeal Judge found that the global fine, based on precedent, was not proportionate to the gravity of the offence and the culpability of the various offenders and that therefore the sentencing judge had imposed an unfit sentence (at para 21). Further, the sentencing judge failed to appreciate the mitigating factors that the defendants were not in flagrant or deliberate violation of the work orders and that the motel was empty for much of the non-compliance period. Additionally, although the sentencing judge referred to the correct sentencing principles, there was no indication of how the judge applied the concept of totality to the global fine. Ultimately, the sentence as it stood was unduly harsh and excessive.

The Summary Conviction Appeal Judge allowed the appeal, reduced the sentence on count one to $5000 each to Mr. and Mrs. Bhanji and $25,000 to the corporation, the entity primarily responsible for the offences. For the 40 corporate offences, the sentence was reduced to $25,000. The total fine on all defendants was $63,000. The appeal judge did not adjust the global amount further as the sentence, globally, was fit and appropriate in the circumstances.

Leave to appeal this sentence to the Court of Appeal was permitted on a narrow basis, which the majority called “unfortunate” (at para 31), as it was based on a specific question of law. The question on appeal asked the court to consider the approaches to the application of totality in two previous Alberta Summary Conviction Appeal decisions, R v Goebel, 2003 ABQB 422 (CanLII) and R v 50737 Alberta Ltd, 2009 ABQB 476 (CanLII) to determine if they “overlap, compete with, or duplicate each other, so that full application of both may improperly overcompensate or double deduct for totality” (at para 29). The majority decided that to adequately answer this question, the court needed to consider the broad implications of applying totality in regulatory sentencing where a fine was imposed.

In Goebel, Justice Slatter, who was then on the Court of Queen’s Bench and was a member of the majority in Bhanji, overturned the sentence as the sentencing judge inappropriately imposed a global sentence based on the “condition of the building” as opposed to imposing a fit sentence on each count and then adjusting for totality. In effect, the sentencing judge erred as he imposed a sentence without regard to the nature and severity of the breach. The court found that the approach of the sentencing judge to sentence globally was “not an appropriate way of initially setting a sentence in the case of multiple convictions on multiple counts” (Goebel at para 86). The appropriate approach, according to Justice Slatter, was to impose an appropriate sentence for each count and then to review the global sentence to ensure it was not unduly harsh or excessive. As the sentencing judge “never turned his mind to the appropriate sentence for each count” and gave no “express reasons” for the decision, the matter was remitted to the sentencing court to do so (Goebel at para 89). It should be noted that the offender in Goebel was an individual charged with several Public Health Act violations, some of which were failures to comply with work orders (Goebel at paras 83-84). This case did not engage concerns with sentencing closely-related multi-parties with overlapping multi-charges.

The sentencing approach and the type of defendant in R v 50737 Alberta Ltd. were much different than in Goebel and more akin to the scenario in Bhanji. There, Justice Burrows was reviewing the sentence of three closely-related defendants, a husband and wife and a closely held corporation, for 54 violations of the Public Health Act. The sentencing judge applied the approach recommended by Justice Slatter in Goebel but, according to Justice Burrows, imposed demonstrably unfit sentences in relation to some of the counts by failing to consider multiple charges arising from the same breach in multiple housing units, namely guardrails not to code and deteriorating concrete. It was therefore an error to impose the same fine for each count of the same violation even before consideration of totality of the sentence. In Justice Burrows’ view, “the moral blameworthiness of a violation in respect of 15 balconies is not 15 times the moral blameworthiness of a violation in respect of one balcony when all violations occur at the same time” (50737 at para 33). Instead, the sentencing judge, in considering the totality principle, should have considered a graduated fine for the multiple charges based on the same prohibited act and arising from multiple units (50737 at paras 35-38).

In effect, Justice Burrows considered these type of offences as engaging the criminal law concept of ordering sentences of imprisonment on multiple charges to be served at the same time or concurrently. By employing this power, the sentencing court, in a criminal case, ensures the global sentence adheres to the principle of totality. The imposition of concurrent terms is particularly appropriate where multiple charges arise from the same subject matter or the same series of events. In the regulatory field, where often a monetary penalty is the only sanctioning option, as in the Public Health Act, fines cannot be imposed concurrently but can be imposed pursuant to the spirit of that concept by utilizing graduated fines for similar offences. In R v Great White Holdings Ltd., 2005 ABCA 188 (CanLII), Justice Côté commented on this anomaly and emphasized the duty on the court to review the sentence for its global cogency, especially when arising out of the same set of facts (paras 26, 29). Not only can fines not be imposed concurrently, but they must also be paid as a global amount. Totality is therefore a controlling feature of sentencing fine-only offences where there are multiple counts.

Additionally, the Public Health Act contemplates fine-only penalties within a very specific range. In criminal sanctioning, the options for sentencing an individual offender are varied, providing for a range of sentencing options and for the imposition of a combination of those options. For instance, under section 734(1) of the Criminal Code, a court can order a fine in addition to another sentencing option such as probation or imprisonment. Under section 735, an organization, when convicted of a summary conviction offence, is subject to a maximum fine of one hundred thousand dollars, in lieu of imprisonment. As an aside, traditionally, there were few sentencing options for a corporation convicted of a criminal offence other than monetary sanctions, however the Code amendments which came into force in 2004 provided for the imposition of probation orders on offender organizations. The conditions of these orders can have a profound impact on the corporate culture of an organization by requiring the establishment of “policies, standards and procedures” to reduce the likelihood of further offences (see section 732.1(3.1)(b) of the Criminal Code). For more discussion of these changes in the Code, read A Plain Language Guide to Bill C-45 – Amendments to the Criminal Code Affecting the Criminal Liability of Organizations.

Although criminal law principles are applicable, the court recognized that there are very real differences between regulatory and criminal offences, which must modify the general sentencing approach to proportionality and totality (at para 32). Regulatory offences are not constitutionally required to be full mens rea offences. The presumptive mens rea for regulatory offences, per R v Sault Ste Marie, [1978] 2 SCR 1299 (CanLII), is strict liability, a form of civil negligence. This parliamentary presumptive intention can be rebutted by Parliament in favour of absolute liability, requiring a “no fault” element. However, in accordance with section 7 of the Charter and our principles of fundamental justice, an absolute liability offence is only viable where there is no potential loss of liberty. In other words, where the penalty is fine-only. The fact, therefore, that the public health sanctioning system is purely monetary may suggest that these offences require no proof of a blameworthy state of mind or even no inference of such a fault requirement from the proof of the prohibited act. The concept of proportionality then, that the sanction be consistent with the gravity of the offence and the blameworthiness of the offender, may not have the same gravitas as in the case of an offence where an element of fault is required. However should the offender facing an absolute liability offence have an intention to commit the offence or, in other words, be found blameworthy, that would certainly be a factor aggravating the sentence.

In R v Maghera, 2016 ABQB 50 (CanLII), Justice Jeffrey commented on this aspect of sentencing for absolute liability regulatory offences. The defendant in that case entered pleas of guilty to offences under the Alberta Fair Trading Act, RSA 2000, c F-2, which did attract penalties of incarceration. Nevertheless, Justice Jeffrey noted that “typically the degree of moral blameworthiness will be less than in criminal offences, as will be also the gravity of the offence” (Maghera at para 12). On that basis, there is a different approach to regulatory sentencing which does not require proof of a blameworthy state of mind. The primary sentencing objective in those cases is the “balancing” of “competing considerations in favor of rehabilitation of the offender and protection of the public” (Maghera at para 13). This shift, from individual interests to public interests or from denunciation to the protection of the public from harm, is in a sense the hallmark of a regulatory offence as opposed to a criminal one. It is the consequences of the behavior being sanctioned as opposed to the culpability of the offender being punished. However, the more serious the regulatory offence, as evidenced by the fault requirement, which in turn is proportionate to the possible punishment, the closer that regulatory behaviour comes to criminal law. In the end, much regulatory behaviour, as in the Public Health Act, is concerned with the potential or risk of harm as opposed to actual harm. Sentencing for risk or the potentialities of the conduct is inherent in much regulatory sanctioning (Maghera at para 14).  

The majority in Bhanji found no inconsistency between the Goebel and 50737 decisions. In their view, each case applied the same principles but in differing fact situations. In sentencing, a judge could use either or both approaches depending on the case providing the judge did not “double count” or use totality as a double deduction of the appropriate sentence (at para 78). The majority goes further to give an excellent survey of the sentencing principles to be employed in the case (at para 79). This paragraph gives clear direction for sentencing in this area where totality is engaged.

To elucidate the principle of totality and the approaches used, the majority referred to some previous Alberta Court of Appeal decisions in criminal cases but did not refer to their most recent decision, R v Meer, 2016 ABCA 368 (CanLII). Coincidentally, Justice Watson, the other member of the Bhanji majority, was a member of this panel. Although it was a criminal case, the appellant in Meer argued that the appropriate approach in a case of multiple charges, some of which are related factually, is to group those offences into like categories and then apply the totality principle on each group or category of offences. Then, the sentencing judge, as a “last look,” should review the total global sentence imposed to ensure the global sentence is appropriate. This requirement for an “intermediate totality adjustment” was soundly rejected by the Court of Appeal (Meer at paras 17-19). However, the court did find the sentencing judge erred by not applying the statutory totality requirement under section 718.2(c) of the Code as required in the earlier Alberta Court of Appeal decision of R v May, 2012 ABCA 213 (CanLII), (at paras 13-14), a decision which is referenced in Bhanji.

In the May decision, and as echoed in Bhanji, totality engages the principles of proportionality and of restraint (see R v Proulx, [2000] 1 SCR 61 (CanLII), at para 90, Lamer CJ), both of which must be balanced, indeed “delicately” balanced, in arriving at a just and appropriate sentence. Restraint, returning to Chief Justice Lamer in M(CA), is an underlying tenet of our sanctioning system which tempers the potentially heavy hand of retributive justice by fashioning a fair and human sentence which “invigorates” (see May at para 14) public confidence in the justice system and thereby is consistent with the community’s sense of justice. The comments in Proulx are specifically directed to incarceration as the “last” resort as recognized under section 718.2(d). The sentencing judge, although not required to apply intermediate totality, was required to apply totality globally. In M(CA) Chief Justice Lamer explains the purpose of totality is “to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender” (at para 42). In this paragraph, Lamer CJ approves of the description of totality as requiring “a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is ‘just and appropriate’.”.

However, the Bhanji majority does refer to the case of R v Elliot, 2012 ABCA 214 (CanLII), on the totality issue. Elliot is not referenced in the Meer case but is a decision rendered on behalf of the court by Justice O’Ferrall, the dissenter in Bhanji, as a Memorandum from the Bench. Of interest, Justice Watson, a member of the majority in Bhanji, was also on the Elliot panel. In Elliot, Justice O’Ferrall, for the court, outlines the totality approach to multiple counts, again, as consistent with the earlier case of Goebel and the later decision of Meer (at para 7). Individual sentences must be fit and appropriate, then the court considers which sentences should be concurrent or consecutive based on similarities in the fact situation, and then a final review of the global sentence to ensure compliance with section 718.2(c). If the global sentence is unduly long or harsh, then the judge should reduce the individual sentence, even though in isolation the sentence is fit, or direct that some consecutive sentences be served concurrently. I would add to this discussion that the court in determining concurrent sentences must also be mindful of the direction under section 718.3(4)) to consider imposing consecutive terms under certain circumstances, including where the offences do not arise out of the same series of events or where the accused was on judicial release at the time an offence was committed or where the offences were committed while fleeing from police. The clear tension between the approach to totality and this statutory requirement suggests that sentencing judges must clearly and explicitly articulate how they are crafting a sentence where totality is an issue.

In the end, the majority, after a thorough discussion of the relevant sentencing principles engaged in the case and after due consideration of the aggravating and mitigating circumstances, found the Summary Conviction Appeal Court Judge did not error in overturning the sentencing judge’s disposition and reducing the global fines (at paras 21, 24). Nor did they find, as urged by the appellant, that the appellate judge “double counted” or improperly applied totality concepts in imposing the individual sentences and in the final “last look” (at para 76). As discussed above, the majority was not satisfied that in the unique circumstances of regulatory sentencing, where there is no option to impose concurrent sentences, and where there is a suggestion the offences “overlap” both factually and by relationship of offenders, the original sentence was globally appropriate. The sentencing judge did not merely fail to adequately compensate for totality, the judge also failed to adequately consider the mitigating features of the offence as well as the multi-party/multi-offences conundrum (at para 76). The Summary Conviction Appeal Judge therefore properly reconsidered the matter by considering all relevant sentencing principles.

The dissent of Justice O’Ferrall offers a different perspective, finding there was no error in principle made by the sentencing judge and that effectively the Summary Conviction Appeal Judge substituted his own opinion on a sentence in which there was no clear error. The dissent does not share the multi-party totality concerns that the majority found to be engaged. Indeed, Justice O’Ferrall questions whether the principles of totality as conceived in criminal law even have a place in the regulatory context when monetary fines are the norm (at paras 85, 94, 108, 109). Neither the approach in Goebel nor in 50737 Alberta Ltd., in Justice O’Ferrall’s opinion, was therefore applicable. There was no “discretion” to forgive any of the 801 days of non-compliance and the sentence should reflect that. In finding the original penalty fit, Justice O’Ferrall viewed the aggravating and mitigating features of the case in a much different light than the Summary Conviction Appeal Judge and the majority decision. His position emphasizes the regulatory nature of the sentencing and the overarching objective of regulation to, in the words of Justice Blair of the Ontario Court of Appeal decision in R v Cotton Felts Ltd, (1982), 2 CCC (3d) 287, “enforce regulatory standards by deterrence.” The complexities of sentencing are further reinforced by the special nature of organizations and those peculiar factors that must be considered in sentencing such an offender as evidenced by the Criminal Code sentencing factors in section 718.21. However, it should be noted that some of those factors are more applicable to a large corporation, one less closely held than the case at bar.

The Bhanji decision, despite its specific application, does remind us of the difficulties in crafting an appropriate sentence in any area of criminal or quasi-criminal law. The disjunction between the majority and dissent decisions exemplifies the inherent obstacles found in the “delicate art” of sentencing and helps explain the panoply of decisions, at all level of courts, on the proper approach to those principles. This “delicate” balance of sentencing becomes more fragile and at risk when a confluence of common law and statutory sentencing principles is engaged. In Bhanji, there are issues of proportionality, totality, consecutive terms, multi-parties, multitude of counts, corporations, and closely related offenders superimposed on the strictures of regulatory liability and regulatory sanctioning. In the end, the sentencing judge’s “last look” must, colloquially, “do the right thing.” But how? How does a court reflect society’s desire to protect with the law’s commitment to principle? Do we simply graft onto the regulatory process the punitive sanctioning principles from criminal law and from those principles craft regulatory principles consistent with the uniqueness of the regulatory arena as a quasi-criminal process? Is that even simply done? These are in fact the difficult issues at the heart of the Bhanji case.

Although the court in Bhanji is rightly concerned with this delicate balance, when reading through this case and the other cases engaged in this issue, one realizes that perhaps, as suggested by Justice O’Ferrall’s dissent, this “last look” loses meaning when applied to the regulatory field. To be sure, the courts have it right in terms of principle but the ultimate question may engage whether those principles themselves are appropriate considering the heightened importance of regulation and the deepening moral values we attach to proper regulatory conduct. There is a tension there between what we once thought regulatory behaviour to be - consequence-based conduct which is not inherently wrong - as opposed to what we feel now - conduct which has the great potential to be inherently wrong. In a sense, it is our initial approach to these cases which deserves a second look, including a move away from straight monetary penalties to more “creative” sentencing as found in other regulatory statutes and even as envisioned under section 732.1(3.1) of the Criminal Code, dealing with possible probationary terms on organizations. To end with Lamer CJ’s metaphor in M(CA), the “delicate art” of sentencing needs artists who are fully equipped for their task. 

Episode 49 of the Ideablawg Podcasts on the Criminal Code of Canada: “Just Desserts?” The Offence of Assisting a Deserter Under Sections 54 & 56

In this episode, we will discuss two sections closely related to previous sections involving offences against the integrity of Canada’s security forces. Section 54 specifically relates to the armed forces. As with mutiny, the offence is also found in the National Defence Act but in much greater detail from section 88 (offence of desertion) to sections 90 to 91(absence without leave). The offence was in the 1892 Code (s. 73) and in the precursor to the Code, Burbidge’s Digest of the Criminal Law in Canada (Article 71).

Section 54, entitled “Assisting Deserter,” reads as follows:
54 Every one who aids, assists, harbours or conceals a person who he knows is a deserter or absentee without leave from the Canadian Forces is guilty of an offence punishable on summary conviction, but no proceedings shall be instituted under this section without the consent of the Attorney General of Canada.

Originally, in the 1892 Code, the offence was a hybrid or dual offence, permitting the Crown to prosecute either by indictment or summarily “before two justices of the peace.”  The maximum penalty by way of Indictment was a fine and imprisonment “in the discretion of the court.” If proceeding summarily, the maximum penalty was a two hundred dollar fine with six months imprisonment in default. The 1892 offence required that the accused person was not a member of the armed forces.

Section 56 specifically relates to the RCMP, our national police service, which has militaristic parallels in structure and purpose. This offence too had an equivalent in Burbidge’s Digest under Article 73 and was also in the 1892 Criminal Code under s. 75. Of course, at that time the reference was to the North-West Mounted Police. The current Royal Canadian Mounted Police Act, RSC, 1985, c. R-10 does not have a desertion section per se but does have a provision for terminating a member’s pay and allowances if absent from duty under s. 22. Under the RCMP regulation and pursuant to the Code of Conduct, a member must “remain on duty unless otherwise authorized” or be subject to discipline.

Section 56, entitled “Offences in relation to members of R.C.M.P.,” reads as follows:

56 Every one who wilfully

(a) persuades or counsels a member of the Royal Canadian Mounted Police to desert or absent himself without leave,

(b) aids, assists, harbours or conceals a member of the Royal Canadian Mounted Police who he knows is a deserter or absentee without leave, or

(c) aids or assists a member of the Royal Canadian Mounted Police to desert or absent himself without leave, knowing that the member is about to desert or absent himself without leave,

is guilty of an offence punishable on summary conviction.

The actus reus component of section 54 requires the accused person to “aid, assist, harbours or conceals” in committing the offence. Similar terminology is used under s. 56 in offences relating to RCMP officers. This phrase is also used under s. 299 of the National Defence Act to describe the offence of accessories to desertion or absence without leave under that Act. Section 23 of the Criminal Code, the offence of accessory after the fact, as discussed in a previous podcast (episode 27 and the text can be found here), uses slightly different terminology to describe the prohibited conduct, using the phrase “receives, comforts or assists.” The phrase “harbours or conceals” is found under section 83.23 of the Criminal Code, which is the offence of concealing a person who carried out or is likely to carry out terrorist activity. The offence of procuring, under s. 286.3, refers to “recruits, holds, conceals or harbours.” Similar language is found in the human trafficking section 279.011and 279.01 and in abduction sections 281 to 283. Of course, the party section 21 requires the accused person aids or abets under subsection 1 but under subsection 2, common intention, the act is assisting. It seems, therefore, that s. 54 is a combination of a party offence and an accessory after the fact offence.

It is difficult to contemplate when an act would be “aiding” rather than “assisting.” Dictionary meaning suggests the two words are effectively synonyms as “aid” means “to give assistance.” The term “harbour,” according to the dictionary, includes an aspect of “comfort” as it is defined as “a place of security and comfort” similar to a “refuge.” “Comfort,” is defined as “to give hope and strength to” or “to ease the grief or trouble of.” In the 2016 Ontario Superior Court of Justice decision considering the offence of human trafficking in R v D’Souza, Justice Conlan, in paragraph 146, defined “harbour” narrowly as simply providing shelter and “conceal” as “to hide or keep secret.”

It should be noted that the s. 54 offence cannot be prosecuted without the consent of the Attorney-General of Canada. This requirement suggests the prosecution of this offence requires special scrutiny, adding an additional layer of prosecutorial discretion. There are other offences in the Code requiring similar consent, for example, such as offences related to the Space Station and are committed by crew members of the Space Station pursuant to sections 7(2.3) and 7(2.31). This gives some idea of the delicacy of the offences and requirement for a second look by the federal government prior to prosecution.

The mens rea component for s. 54, as subjective mens rea, can be found in the knowledge requirement that the accused “know” the person so assisted is “a deserter or absentee without leave from the Canadian Forces” or from the RCMP. Again, section 54 must be read in light of the deserter and absentee without leave sections in the National Defence Act. Clearly, the Criminal Code section is to be used in an especially egregious case of accessory after the fact and is an offence in a range of offence-like sections found under the military legislation.  Section 56 also has a knowledge requirement under subsection b and c but the offence must also be committed “willfully.” As per Buzzanga and Durocher, 1979, ONCA, the word can suggest a requirement for a high level of intention or it can denote the general form of subjective mens rea, which includes recklessness. However, considering the additional knowledge requirement, an argument can be made that the accused must have a high level of intention in order to commit the offence.

I could not find any relevant case law on these two sections suggesting they are rarely used. No doubt the requirement for the consent of the Attorney General of Canada to prosecute the s. 54 offence contributes to this lack of use. It also suggests that these sections need to be reviewed in any Criminal Code reform and possibly repealed as historical offences no longer required in our criminal law.

 

 

 

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

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

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

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

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

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

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

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

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

 

Order In the Skyways: A Comment on the Regulation of Drones

The increasing popularity of drones is attracting the attention of the regulatory process as municipalities, such as Calgary, attempt to control the use of drones in public areas through the bylaw process (see section 24(c) of the City of Calgary Parks and Pathways Bylaw 20M2003). In fact, the issue has become so pressing that the federal government recently announced immediate action through the Interim Order Respecting the Use of Model Aircraft  by amending the Aeronautics Act RSC 1985, c. A-2 to more specifically address the “significant risk” the operation of drones have “to aviation safety or the safety of the public.” However, regulation in this nascent area of recreation has not been without difficulties. The extent to which the regulatory regime can effectively and fairly maintain order in the skyways may appear a simple task but as with any statutory process, “the proof is in the pudding” or as in the recent summary conviction appeal against conviction in R v Shah, 2017 ABQB 144 the “proof,” involving the appropriate application of the standard of proof, was lacking.

The Appellant in this case, ably represented both at trial and on appeal by our very own Student Legal Assistance, was flying a recreational remote controlled drone during the evening hours of January 16, 2016 when he was charged under section 602.45 of the Canadian Aviation Regulations SOR 96/433 enacted under the Aeronautics Act. The section states that: “No person shall fly a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.”

R v Shah is an appeal of a summary conviction entered at trial in Provincial Court.  Three grounds of appeal were advanced before Madam Justice J. Antonio (at para 2). The first ground concerns the trial judge’s application of the standard of proof. The second ground involves the proof of the required actus reus elements of the offence, namely the requirement the model be flown “in a manner...likely to be hazardous to aviation safety.” The third ground raises the issue of reasonable apprehension of bias on the basis that the trial judge “pre-determined” the case. The first ground was successful while the other two were dismissed. Justice Antonio has ordered a new trial.

The facts are brief but provide insight into the issues raised on appeal. While on road patrol, two officers observed “some blinking lights in the dark sky” above a park located “just south” of the main runway of the Calgary International Airport (at paras 4 and 6). The officer noticed the lights were above the trees, which the officer “estimated” as 80 feet tall (at para 4). When the officers arrived on scene located at a nearby park, the Appellant was packing away his recreational drone into his car. While the officer was conversing with the Appellant, passenger planes were “coming in for landing with wheels down” at an “estimated” altitude of 200 to 250 feet (at para 6). The officer, did not however, notice any planes in the air when the drone was in use. According to an officer who later tested the Appellant’s drone, the object could fly up to an “estimated” height of 200 feet (at para 7).

The officers were not qualified to give expert evidence and no other evidence was called by the Crown in support of the prosecution. Although initially the Crown attempted to rely on a regulatory requirement imposing a 9 km no-fly zone for drones near an airport, an adjournment revealed that in fact there was no such regulation in place at the time of the incident. Ultimately, the trial judge convicted the appellant of the offence in a brief oral judgment.

Turning to the first ground, the error which resulted in an order for a new trial, Justice Antonio found that in convicting the appellant the trial judge failed to correctly resolve the required standard of proof. It was argued, and referenced by the trial judge, that the matter, as a regulatory offence, was one of strict liability. A strict liability offence, as described by Justice Dickson at page 1326 of the seminal case on regulatory or public welfare offences R v Sault Ste Marie [1978] 2 SCR 1299, is an offence for which the Crown need not prove mens rea as the proof of the conduct is prima facie proof of the offence at which point the burden then shifts onto the defendant to establish a due diligence or mistake of fact defence. Strict liability offences are, as Glanville Williams explained in Criminal Law (2d ed.): The General Part at page 262, a form of negligence with the focus on whether the defendant, as a reasonable person, took all due care in performing the legitimate yet potentially harmful activity.

This form of liability was reviewed under section 7 of the Charter in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 where the Supreme Court unanimously concluded that the Charter requirements are “met in the regulatory context by the imposition of liability based on a negligence standard” (Justice Cory at p 241). However, as proof of the actus reus elements of the offence is key to conviction and considering the Charter values reflected in the presumption of innocence, the Crown, is obliged to prove the actus reus components of a regulatory offence beyond a reasonable doubt (at p 248). This basic proof principle was not clearly recognized by the trial judge in the Shah case when he stated in his reasons for conviction that the Crown “met the burden of establishing” the actions of the Appellant to his “satisfaction, and I’m not certain whether it’s beyond a reasonable doubt” (at para 13). It was this clear error, as found by Justice Antonio, which resulted in the quashing of the Appellant’s conviction and the ordering of a new trial. Hopefully, this decision will highlight this key requirement in future such prosecutions. Certainly, it is the obligation of the Crown to articulate this standard in their submissions.

The second ground of appeal was dismissed by Justice Antonio but still deserves attention. Essentially, the Appellant’s argument was that the Crown was required to prove the drone was operated by the Appellant “in a manner...likely to be hazardous to aviation safety” by way of expert evidence, and that by not doing so the Crown failed to provide any evidence upon which the trial judge could reasonably convict. The Appellant further alternatively argued that the trial judge erred in his interpretation of the term “likely.” Justice Antonio collapsed these two issues and entered into a statutory interpretation exercise, focusing on the word “likely” as it modifies the term “hazardous.”

Through this approach, Justice Antonio found that the required elements of the offence are directed to the likelihood of an aviation hazard, implying “a risk of a risk” and therefore casts “a broad actus reus net” (at paras 21 and 22). On that basis, considering the wide range of possible hazards, Justice Antonio found expert evidence on that issue may or may not be required depending on the facts of the case. As an example, she referred to the R v Khorfan, 2011 ABPC 84 (CanLII) decision wherein Judge Fraser considered expert testimony on the use of a halogen spotlight a “hazard” under the regulations. In Justice Antonio’s view, it would “fall to the next trial judge to determine whether the evidence before him or her” was sufficient to prove the conduct fulfilled the offence requirements of “likely hazardous” (at para 25).

Although Justice Antonio’s reasoning on this issue is attractive and provides for a robust reading of the section consistent with the objective of the regulatory scheme as aviation safety, the salient issue here is not how “likely hazardous” may generally be proven but whether in this specific fact situation there was evidence upon which a properly instructed trier of fact could reasonably convict. In this case, the only evidence before the court was from two officers who had no particular knowledge or expertise in estimating height, never mind any ability to “estimate” the height of an airplane at night in the backdrop of a darkened sky. As cautioned in Graat v The Queen, [1982] 2 SCR 819 (CanLII) police officers testifying in this manner are giving a compendium of observations, which are merely factual observations similar to any other witness’s factual observations. Their evidence is not enhanced by their position as police officers. In other words, these officers were in no special position to make the height estimates. Officers may have some expertise in assessing speed and vertical distance due to their daily role as police officers who enforce traffic regulations, however. they have no particular expertise in assessing altitude. This is not a road hazard but an aviation safety hazard.

In fact, the federal aviation regulations (section 602.14 of the Canadian Aviation Regulations) specify aircraft height maximums when flying over a built-up area. Although the regulations also indicate that those maximums do not apply when the aircraft is landing, there is absolutely no evidence in the Shah case at what point any of those observable aircrafts were in their landing and therefore not subject to the regulated height restrictions. The issue here is not just if the conduct was a “likely hazard” but is this conduct, as observed by the officers on the evening in question, “likely hazardous to aviation safety.” To prove the risk of the conduct to aviation safety beyond a reasonable doubt more cogent evidence was needed to connect the inferences than simply a lay person’s belief that this drone “might” reach a certain “estimated” height and “might” therefore be a hazard to an airborne aircraft which “might” be at another height. Proof beyond a reasonable doubt cannot rest, without more, on such imprecise opinion evidence dependent on an imprecise chain of reasoning. In Professor Wigmore’s words (7 J. Wigmore, Evidence, 1917 at 1-2.), a witness must be a “knower, not a guesser.” This evidential requirement is even more important considering the new changes announced to the aviation regulations which provide for precise statutory limits within which a drone cannot be flown. The new legislation prohibits the flying of recreational drones “at an altitude greater than 300 feet AGL” or “within 9 km of the centre of the aerodrome” circumscribing what would constitute a likely hazardous situation. It is interesting to note that the height in the new regulations differs from the height “estimates” provided by the police officers.

Clearly, there needs to be reliable and probative evidence on the record to make these findings be it expert evidence or not. In the Khorfan decision, for instance, the prosecution called non-expert evidence from an air traffic controller who was on duty the evening of the offence and gave crucial evidence on “aircraft taking off and their height and angle” (at para 30) at that time. This kind of evidence could provide the needed connection between the drone flight altitude and the “likely” aviation safety hazard. This argument ties into the first ground of appeal where concerns were rightly made with the trial judge’s application of the appropriate standard. There was simply no evidence upon which to convict beyond a reasonable doubt.

The final ground of appeal concerns the trial judge’s role as an impartial arbiter of the case, a role which is at the heart of our adversarial system. The test for unreasonable bias for good reason requires a high standard and Justice Antonio correctly articulates the difficulties in advancing such a ground, particularly in provincial court where justice must be done not only fairly but also efficiently. On a certain view, however, this ground is also linked with the first and second grounds of appeal in that the failure to properly apply the required standard of proof resulted in findings which may appear cursory and “pre-determined.”  

In the end, this prosecution was unsatisfactory. Considering the rise in regulation of our day to day activities, this case should be viewed as a caution that even in the realm of public safety, convictions must be based on sound principles and evidence.

Some Thoughts On Teaching Evidence

This week I began teaching Evidence, a required course for the 2Ls. This is my first time teaching the course and yet the rules and principles of evidence seem second nature to me. True, this can partly be explained by my legal career, involving criminal trial and appellate practice, in which I used these principles on a very practical basis. Perhaps, it can also be explained by the fact these rules and principles are generally a matter of common sense and human experience. Certainly, the basic rule of the admissibility of evidence is predicated on that concept: admissible evidence, as a matter of common sense and experience, is relevant when its introduction tends to make a fact more or less probable than the fact would be without it.

However, this initial feeling of comfort and familiarity with the rules and principles of evidence is perhaps why teaching and learning evidence is so crucial to a modern legal education. True, many of the 2Ls in my course will not be trial and appellate lawyers and many of them won’t be obsessively sifting through Supreme Court of Canada judgments to find thematic connections. Rather, evidence is meaningful not because of the rote application of the rules but because of the underlying purpose of these rules which cause us to question the rules and principles themselves. In many ways, this exploration of evidence leads us to re-consider the meaning of law itself.

To make my case, I will refer to some examples from this first week of the course by starting with this concept of “common sense.” Indeed, throughout the trial process, common sense and human experience is a common theme, albeit traditionally it is often perceived through the lens of judicial experience. In support of this contention, read Justice Moldaver’s approach to many criminal law issues in which he applies the “common-sense” paradigm, such as in the 2012 Walle decision or the 2015 Tatton case. I have written further on these decisions here and here. Or, if your bent is more to the civil side, read the 2012 Supreme Court of Canada’s decision in Clements v. Clements where the “but for” test for causation is applied in a “robust common sense fashion” by the majority. However, it is in the consideration of the community sense of how legal constructions are perceived, which seems to be now recognized as a legitimate reference point in judicial interpretation. A previous posting I wrote on this issue considering the SCC case of Anthony-Cook discusses this very point.

Another evidential concept requiring meta-reflection involves the first matter of consideration in the course: what is evidence in the broadest sense, outside of the legal premise. This question leads one to realize that evidence is not just an old shoe or a scrap of paper starting with the words “IOU.” Evidence is about relationships. There are no absolutes in evidence nor are there inherent qualities of an item which makes something, anything, a piece of admissible evidence. These things can only be viewed in relation to the “other.” The shoe is evidence only as it relates to the expert witness who describes the tread as similar to the tread found at the scene of the crime. The scrap of paper becomes evidence of an intention or a promise to pay in a civil action. The above describes just one sort of relationship evidence engenders. There are many more, replete with meaning both inside and outside of the courtroom.

One such outside connection is based on the overarching purpose of evidence as it relates to the truth-seeking function of the trial process. This is a cornerstone of our adversarial system and why we, almost smugly, suggest our form of justice is superior to the investigatory form found in continental Europe. Bringing differing facts to court permits the trier of fact to get at the truth of the matter bringing to light the real events. But what is “truth”? Is it an absolute or is it merely a chimera of what was and is, therefore unattainable? As the historian Carl Becker, a strong proponent of historical relativism, suggested in his provocative piece, “Everyman His Own Historian” published in 1932, the present recollection of the past is really a creation of our own history. Essentially, he argues, as we describe past events we imbed created memories “as may be necessary to orient us in our little world of endeavor.” Are we then constructing a false sense of comfort and security when we suggest our evidentiary rules advance the “truth-seeking” function of our justice system? These are the kind of questions to be asked when faced with the law of evidence.

Another example will make my final point on the expanding properties of thinking about evidence. After discussing the basic rule of admissibility in the second class of the course, we discussed the general exclusionary discretion which permits the trial judge to exclude admissible evidence if the prejudicial effect of the evidence outweighs the probative value. The obvious first question arising from this exception to the basic rule of admissibility involves the meaning of “discretion.” What does it mean, in the legal context, to exercise discretion and what are the repercussions of exercising or not exercising such power? Notice, I used the word “power” to describe the exercise of discretion. Notice, I mentioned that using discretion creates an outcome, of which some will cheer and others will decry. Discretion as a power, as the excellent casebook used in the course, Evidence: Principles and Problems edited by Deslisle, Stuart, Tanovich and Dufraimont suggests, can also be revered or jeered. As pointed out in the readings (pages 176-178), discretion can be a tool of the authoritarian state as every tyrant imposes his will through the exercise of discretion. Conversely, discretion can be the mark of the most tolerant and accepting society as it considers an individual as a concept worthy of respect and personhood even in that individual’s darkest moments. Discretion therefore can be the face of compassion or the mask of fear and terror. In the case of exclusion, discretion is a delicate balancing act in which the rule of law acts as the tightrope and the trial judge as the safety net. But, whether this in fact takes place provides us with more questions to consider.

It is true that teaching about evidence can amount to naval gazing with that inward eye, which can leave us in a state of doubt about almost everything. However, this constant drive to re-examine and re-assess our traditional rules and principles is what, in my view, make our rule of law admirable and meaningful. In this light, perhaps talking about evidence in a law classroom is one of the most “relevant and material” journey in a law career.

 

What is Advocacy?

December is a time for reflection. Law classes are over and marking begins in earnest. It also a time of anticipation as I ready myself for the University of Calgary, Faculty of Law Advocacy “block” weeks starting the first week in January. This is a compulsory program for the 3Ls, which originally was taught over the course of an intensive week to introduce students to fundamental trial skills. Two years ago, I was approached by Alice Woolley, the then Associate Dean, to take on the program as part of the faculty’s curriculum renewal involving the integration of experiential learning and performance-based studies into the regular law school offerings. The advocacy program was already just that - hands on and practice orientated - but it needed something else to make it unique and to make it the capstone course for the new curriculum.

To do this, we placed those fundamental skills in the context of a real trial scenario. In the past, at the end of the block week, the students would present their case before a “trial judge.” The focus then was not on the trial itself but on the presentation of the trial skills. After the course revision, the trial became more than the vessel for the skills, it became the culmination of those skills. Instead of the students performing in court, they interacted with the case in a meaningful way. They learned to appreciate the effort required to take on a complex file for a client. They began to recognize that being a lawyer does not entail simply getting up on your feet and performing. Rather, the students understood that being an effective lawyer involved connecting the fundamental skills with legal knowledge, common sense and ethical obligations of the profession. They realized that the skills themselves are but a piece of the trial puzzle.

I like to think the advocacy course is not about advocacy skills but is about being a skilled advocate. This concept is best explained by Justices Cory, Iacobucci, and Bastarache in R v Rose. The issue in the case involved the timing of a jury address in a criminal case. Pursuant to s. 651 of the Criminal Code, the defence, if they chose to lead evidence, would be required to address the jury first. In the case of Rose, the Crown, who addressed the jury last, impugned the accused’s credibility leaving the defence unable to respond to the allegation. On Rose’s appeal against conviction for second degree murder, the defence argued the jury address requirement under s. 651 infringed section 7 as it denied the accused’s right to make full answer and defence.  The SCC was split 5 to 4 on the decision with Cory, Iacobucci, Bastarache JJ writing the slim majority decision (although Gonthier J concurred with them, Madame Justice L’Heureux-Dube wrote her own concurring judgment) made the following general comments on advocacy in paragraph 108:

“Skilful advocacy involves taking the information acquired as a result of the trial ‑‑ the evidence, the other party’s theory of the case, and various other, intangible factors ‑‑ and weaving this information together with law, logic, and rhetoric into a persuasive argument.”

The trio acknowledged the role of persuasive advocacy in a jury trial, but in their view, addressing the jury last would not give the accused a persuasive advantage.

Although, it is the sentiment of the court in this above quoted sentence, which rings true to me and frames my approach to the advocacy course, I would be remiss if I didn’t refer to the dissent decision in Rose authored by Justice Binnie on behalf of Lamer CJC, McLachlin J and Major J. The dissent also refers to the “skillful advocate,” but in their view, skillful persuasion can mean the difference between guilt and innocence. Justice Binnie explains this position in paragraphs 18 and 19:

18 While it would be comforting to think that in a criminal trial facts speak for themselves, the reality is that “facts” emerge from evidence that is given shape by sometimes skilful advocacy into a coherent and compelling prosecution. The successful prosecutor downplays or disclaims the craftsmanship involved in shaping the story.  Such modesty should be treated with scepticism. The rules of “prosecutorial” advocacy have not changed much since Shakespeare put a “just the facts” speech in the mouth of Mark Antony:

 

For I have neither wit, nor words, nor worth,

Action, nor utterance, nor the power of speech

To stir men’s blood; I only speak right on.

I tell you that which you yourselves do know,

Show you sweet Cæsar’s wounds, poor poor dumb mouths,

And bid them speak for me.

 

Julius Cæsar, Act III, Scene ii.

19 While few counsel would claim Shakespearean powers of persuasion, the fact remains that in an age burdened with “spin doctors” it should be unnecessary to belabour the point that the same underlying facts can be used to create very different impressions depending on the advocacy skills of counsel.  In the realities of a courtroom it is often as vital for a party to address the “spin” as it is to address the underlying “fact”.  As was pointed out by the late Justice John Sopinka, in “The Many Faces of Advocacy”, in [1990] Advocates’ Soc. J., 3, at p. 7:

Notwithstanding that your witnesses may have been reticent and forgetful, and your cross-examinations less than scintillating, the case can still be won in final argument.

Certainly, there is a difference of opinion in the power of persuasion. Yet, I believe both the majority and the dissent are right about the importance of a skillful advocate at trial.

The quote from Shakespeare (as an aside read my previous posting on the use of verse in court decisions – Poetic Justice) leads me even further back in time to find support for the skillful advocate. Socrates, famous for his unapologetic jury address and his wit, employs persuasion in both senses as described in the Rose decision, albeit ultimately to no avail. The ancient Greeks and Romans were of course the masters of rhetoric. Although some may question their form over content approach, it is useful to recall Quintilian, the Roman rhetorician, offering advice to the new orator. In book 3.5 of the Orators Education, Quintilian suggests there are three aims of the orator: to instruct (docet), to move (moveat) and to delight (delectrat).  Cicero, who is Ancient Rome’s best known orator, left many examples of his skillful advocacy in his writings on oratory. Although his advice, to the modern reader may appear at times contrived and overly formalistic, his emphasis on invention, preparation, and strategy is still relevant today. Hortensia, also an admired Roman orator, further enhanced the ancient art of advocacy by imbuing it with a sense of social justice.  

Yet, there is no need to go so far back in time to find examples of great advocacy: Queen Elizabeth I and her rousing Tilbury speech, the deliberate yet inspirational speeches of Abraham Lincoln, Clarence Darrow’s home spun ingenuity, the fictional flare of Atticus Finch, the legendary appellate lawyering of J.J. Robinette, the written advocacy of Madame Justice Wilson, the consummate advocate G. Arthur Martin, and of course, the courtroom “pugilist” Eddie Greenspan. These are just a few of those skillful advocates who can inspire us to think beyond what is possible and be humbled by the power of persuasion.

What is advocacy? It is a mixture of knowledge, preparation, and persuasion. It requires a clarity of thought and a need to have the courage of your convictions. It requires vision, professionalism and passion. This is what I hope our new law school graduates will achieve in January 2017.

 

 

 

 

 

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.

 

 

 

 

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

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

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

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

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

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

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

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

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

Also posted on the Ablawg.ca website.

 

Episode 47: Section 52 – Sabotage or There Is More to This Than A Wooden Shoe (warning: this a long read or listen)

We are continuing our long but worthwhile journey through the Canadian Criminal Code. In this episode, we are still wading through the sections in the Code under “Part II Offences Against the Public Order.”  The section we will discuss today is one of the many “prohibited acts” listed under this heading, along with Alarming Her Majesty (s. 49) and Intimidating Parliament (s. 51). So far, we have learned that these offences come to us from the English common law and have essentially been in our Criminal Code since its inception in 1892. We have also realized that many of these offences have been subsumed under other, more modern, sections of the Code, particularly the terrorism and criminal organization offences.  Although these sections are occasionally referenced in a recent case or two, they remain virtually unused as “relics of the past.”

The section for today’s podcast is sabotage under section 52, which has a different history than the previous sections. The offence came into our Criminal Code later, in the 1951 amendments to the Criminal Code, under s. 509(a) as “acts prejudicial to security.” Soon thereafter, in the 1953-54 amendments to the Code, the section was re-labelled as “sabotage,” with the essence of the offence remaining unchanged. The original placement of the offence, under the mischief sections, tells us that the offence is a form of mischief involving willful damage to property but with a more serious connotation involving prohibited acts against the national interests of the state.

You may rightly ask why such an offence wouldn’t have been in our first Criminal Code? The answer connects us to the etymology of the word “sabotage.” The term “sabotage” does not actually appear in the section, it is found only in the descriptive heading. Even so, “sabotage” is a word readily identifiable: we all have a notional sense of what sabotage is and what it entails. Despite this, the etymology of the word is surprising yet familiar.

The word “sabotage,” according to the online Oxford Dictionary, comes from the French word saboter, meaning “kicks with sabots, willfully destroy.” A sabot was a wooden shoe traditionally worn by the working class – akin to the Dutch wooden clog. According to the Oxford online dictionary, the somewhat apocryphal story connecting sabot to the crime of sabotage involves the French workers, in the early 1900s who protested the advent of the Industrial Revolution and the replacement of machine for man. In these strikes and protests, the workers showed their displeasure by throwing their wooden shoes into the machinery, which “clogged” (pun alert) the inner workings of the machine. The authorities viewed these actions as “sabotage” and so, the story goes, was the birth of a new crime of mischief. Within a few years the crime would have more significance during World War I and thus become an action intersecting intimidation of the government, espionage, and treason but with an element of mischief.

However, etymologists suggest the wooden shoe story is not behind the crime. Apparently the word sabot referred to “bungling” as in doing something very badly or messily. This connects better to the early uses of the word and does tie to labour action, which also explains the exceptions to sabotage as enumerated under s. 52(3) and (4) of our Criminal Code. A great use of the term can be found in the 1907 speech given by Arturo M. Giovannitti, who was an Italian-American social activist and labour union leader. He decried the concept of “sabotage” as murder instead describing it as “giving back to the bosses what they give to us. Sabotage consists in going slow with the process of production when the bosses go slow with the same process in regard to wages.” As an aside, Giovannitti and two other labour leaders were charged in 1912 with “constructive murder” on the basis of inciting a riot which led to a death of a striker by police. All men were eventually acquitted. Giovannitti, who was a self-rep, gave a memorable jury address, an excerpt, provided by the author, Upton Sinclair, himself a social activist, can be found here.

The evolution of this crime antedates the first Code, which explains why it is not in there. However, when you look at what is in the 1892 Code it becomes clear how the crime easily found its way into our criminal law nomenclature. Other mischief sections in the 1892 Code, such as s. 489, prohibit mischief on railways and injuries to the electric telegraphs (s. 492), all of these important infrastructure features of the new state. On that basis, the addition of sabotage seems a rational addition. However, as mentioned earlier due to the labour connection, the final definition of sabotage protects the right to strike and peaceably protest.

Now, let’s look at the actual words found in the section. The first part of section 52, setting out the offence, reads as follows:

(1)  Every one who does a prohibited act for a purpose prejudicial to

                      (a) the safety, security or defence of Canada, or

            (b) the safety or security of the naval, army or air forces of any state        other than Canada that are lawfully present in Canada,

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

The mens rea or mental element requirement can be found in the phrase “for a purpose.” This offence is an example where the prohibited act of the offence is committed for a specific purpose ulterior to that prohibited act or acts. (See para 92 of R v Khawaja, 2010 ONCA 862 (CanLII)). The ulterior purpose is outlined in subsection (1) as “prejudicial” to the safety, security or defence of Canada or safety and security of any armed forces of “any state” lawfully in Canada. This would require the Crown to prove a high level of mens rea and recklessness would not be enough. Again, as mentioned in previous podcasts, the new terrorism offences would cover these prohibited acts and in a much broader manner both in terms of actus reus and mens rea.

In terms of the actus reus of the offence the Crown would not only need to prove the prohibited act as defined under subsection (2) but also the “prejudicial” purpose as enumerated in 52(1)(a) and (b). Turning yet again to the Oxford dictionary the term “prejudicial” may be fulfilled by proving the purpose was to harm or place at risk of harm. If proceeding under (b), the Crown would also need to prove the foreign armed forces was in Canada “lawfully” or under the law. 

The prohibited act is specifically defined in the next subsection (2) as follows:

...an act or omission that

 

              (a) impairs the efficiency or impedes the working of any vessel, vehicle, aircraft, machinery, apparatus or other thing; or

        (b) causes property, by whomever it may be owned, to be lost, damaged or destroyed.

Here the prohibited acts are fairly broad only requiring an impairment (which could include a mere weakening of the productivity) or a hindering (which could include a mere delay) of the thing so impaired or impeded. In terms of the object of the prohibited acts, traditional rules of statutory interpretation such as ejusdem generis and nocitur a sociis, can be applied to argue that the general term “or other thing” must be interpreted in light of the preceding list, here a list of man-made items requiring generated power. Just how broad the prohibited act is can be seen by the definition under (b). Although the Crown would have to prove causation, the consequence can be as simple as an item lost. Further, there is no specific ownership of the item required. This broad prohibited act is thankfully tempered by that more specific mens rea requirement.

There is a militaristic tone to this offence as it pertains to our armed forces and even foreign ones. There are less serious mischief-related offences found under the National Defence Act such as under s. 116. For example in Reid S.A. (Petty Officer 2nd Class) and Sinclair J.E. (Petty Officer 2nd Class), R. v., 2009 CM 1004 (CanLII), the offenders originally faced charges as laid by the Canadian Forces National Investigation Services of sabotage, conspiracy and other mischief-related offences. The two officers impeded access to a military database by making it more difficult to access the information by removing a computer icon. Upon review, the charges of sabotage and conspiracy were dropped with the Director of Military Prosecutions deciding not to prefer those charges but to instead pursue the less serious National Defence Act offences. These “mitigating” facts were relied on by the defence in submissions on disposition. The defence requested a lesser sentence as the more serious charges first laid garnered much media attention and severe repercussions such as a loss of security clearance, computer access and access to classified information. In the end the Court Martial Judge found the offences were still significantly serious to attract a heavy fine and a reduction in rank.

There are also “saving” subsections, which provides an exception to the prohibited acts as outlined under (2). As mentioned earlier, these exceptions under (3) pertain to acts involving labour protests. They are as follows:

(3) No person does a prohibited act within the meaning of this section by reason only that

            (a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;

            (b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or

            (c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.

The final exception to the enumerated prohibited acts under (2) come under (4) and ensure that the section could not be used as it relates to someone, for example, who canvasses door-to-door. It reads as follows:

(4) No person does a prohibited act within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

In the recent case of R v Wagner (2015 ONCJ 66), the court made an analogous reference to s. 52. In that case, the accused person, Mary Wagner, was charged with breach of probation and mischief by interfering with private property by attending a Toronto abortion clinic.  She was a continual attendee at these clinics in a concentrated effort to “persuade” women not to have abortions. On this occasion, she disconcertedly approached a woman in the clinic, while holding a rose in her hand, and softly repeatedly urged the woman to change her mind. When asked to leave she refused and eventually was forcibly removed by the police. One of the arguments advanced on behalf of Ms. Wagner raised the issue of whether or not her efforts to dissuade were acts of protection or defence of the fetuses pursuant to the defence of the person section in the Code. In his reasons for conviction, Justice O’Donnell dismissed this submission but referred to s. 52 sabotage as an offence which exempts behaviour, pursuant to s. 52(4), similar to the type of behaviour engaged in by Ms. Wagner. Certainly attendance at a place for the sole purpose of communicating would also not be contrary to s. 430(1)(c) mischief. However, where that communication interferes with the lawful use of property, then the mischief section would be applicable.

Needless to say there are few cases of sabotage under this section. Although it has been in the Criminal Code for decades, it is a relatively new offence, which was not part of our first Criminal Code. However, the underlying rationale for the offence, to protect national security, is certainly not a new concept. Whether this offence will continue in use considering the push to modernize offences remains to be seen.

 

 

Modernizing Circumstances: Revisiting Circumstantial Evidence in R v Villaroman

This blog also appears on the ABlawg.ca website:

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

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

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

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

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

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

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

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

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

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

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

 

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.

The Probative Value of Technological Evidence (Revised)

As posted on the ABlawg website: www.ablawg.ca:

Corrigendum:: In the original version of this blog posting, the reference to Madam Justice Germaine as the trial judge was incorrect and is now corrected, with apologies, to Mr. Justice Germain.

“After a while circumstantial evidence can be overwhelming!” remarked Mr. Justice Germain in the recent Alberta Queen’s Bench decision, R v Didechko, (2016 ABQB 376, para 86). In this case, Germain J infers guilt on charges of failing to report an accident where death ensues pursuant to s. 252(1.3) and obstruct justice pursuant to s. 139(2) from the circumstantial technological evidence advanced by the Crown prosecutor. The use of such technological evidence, global positioning or GPS and telecommunications cell tower usage, is not unique. Rather what is singular is the evidential purpose for which it is proffered by the Crown as the only evidence available to establish the required factual connection between the accused and the crime. This case is a portent of the future as technological advancements make it possible, and necessary, to use such technological evidence for the investigation and successful prosecution of crime. Didechko is a persuasive example of a “smart” prosecution wherein the Crown utilizes all the evidentiary tools available to create a cohesive and, ultimately, unassailable prosecution. It is also a wake-up call for all those in the legal system to be mindful of the potential effects of technological advances in building a legally cogent case.

In order to appreciate the intelligence of this prosecution, we must review the facts as potential evidence at trial. At the core, Didechko is factually simple. In the early morning hours of October 14, 2012, the eighteen-year-old victim, Faith Jackson, is hit by a motor vehicle. Two firefighters, who by happenstance were nearby when the collision occurred and observed the event, provide immediate assistance but to no avail as Ms. Jackson soon succumbs to her injuries at the hospital. Later that day, the police find a damaged motor vehicle at the side of a road. Using the vehicle identification number, the police can easily establish ownership by a car dealership. Thus far, the investigation uncovers facts which, at trial, can be easily established through witnesses (i.e. the manager of the dealership) and/or documentary evidence. These facts, when tendered into evidence by the Crown, are an example of direct evidence, which, if believed, resolves an issue without any drawing of inferences by the trier of fact. Typically, direct evidence is given by eyewitnesses to an event or issue, such as in this case, the observations of the firefighters who saw the incident unfold.

However, finding a damaged vehicle does not end the matter. In order to establish Mr. Didechko’s legal responsibility the Crown must prove, beyond a reasonable doubt, two vital factual connections: that the abandoned vehicle was the vehicle involved in the fatality and if so, that Mr. Didechko was in care and control of that vehicle at the relevant time. There must be a nexus between the prohibited conduct (the unreported collision) and the person accused of the crime. In terms of the first matter of proof, identity of the vehicle, Mr. Didechko’s counsel, through an agreed statement of fact filed pursuant to s. 655 of the Criminal Code, admitted it was the involved vehicle. That leaves the crucial issue of identity of the driver as the main issue at trial.

Upon further investigation, the facts reveal that at the relevant time, the abandoned and damaged car, which was the dealership’s demonstration vehicle, was signed out by Mr. Didechko. This can be proven by both direct evidence and by Mr. Didechko’s own admission to the police. But this evidence is still not enough to connect Mr. Didechko to the incident as he reported the vehicle stolen during the relevant time period. In other words, According to Mr. Didechko, he was not in possession of the vehicle when Ms. Jackson was killed. According to his police statement, he was asleep at his father’s home at the time of the incident. However, he gave the police a number of contradictory statements regarding when, where, and how the vehicle was taken. There is also evidence, from video recordings and witnesses, that Mr. Didechko attended a number of bars that evening and consumed alcohol. The police now have a possible motive for Mr. Didechko to mislead the investigators regarding his involvement in the hit and run. But how to prove this in court? The direct evidence at hand is not enough to attribute legal responsibility to Mr. Didechko for the fatal collision. It is suspicious but lacks probative value.

A decade ago a Crown prosecutor faced with this dilemma would determine that there was no reasonable likelihood of conviction and withdraw the charges. A decade ago, the police investigators would agree, having exhausted their investigative techniques. But the situation is different now. In Didechko, the police dig deeper and access information that normally lies hidden: the technological footprint of a person’s daily life. As we make our daily rounds, technology follows us. Our smart phones and computers record our contacts, our thought patterns, and our location. Our cars convey us through the City with technology recording the places we go and the speed at which we do it. This information is there waiting to be mined. In the Didechko case, the police mined this information but it is the Crown prosecutor who turned the data into a persuasive narrative and probative evidence of identity.

The Crown thus weaves an overwhelming case by piecing together seemingly disparate evidence, much of which is circumstantial evidence, from which a trier of fact can draw reasonable inferences. The cell phone transmissions provide the location of Mr. Didechko at the relevant time and place, both at and near the scene of the incident and at and near the location where the motor vehicle was abandoned. It establishes the falsity of Mr. Didechko’s statement that he was sleeping at his father’s home at the time. This evidence ties Mr. Didechko to the vehicle as the vehicle’s GPS traces the path of the incident. Evidence of the people he contacts during and after the incident is available through cell phone records, which also connect him to the incident and to the vehicle. For example, Justice Germaine draws an inference from a timely conversation between Mr. Didechko and his brother (based on cell phone records) as the vehicle returns to the scene (based on both GPS from the vehicle and cell tower positions) where the fatally injured Faith Jackson lies. Presumably, according to Germaine J, Mr. Didechko does so in order to assess the state of his jeopardy and the next steps he will take escape criminal liability.

To establish these technological facts, the Crown does not merely rely on the records and data but calls experts to explain GPS and the cell phone system to establish accuracy and reliability of the evidence. It should be mentioned that the defence fully canvasses the admissibility of the technological evidence in a previous application (see R v Didechko, 2015 ABQB 642). The Crown then builds the case further by explaining the interplay of these technologies and creating an exhibit mapping the connections between the cell towers and the use of the cell phone and as connected to the positioning of the motor vehicle. Again, weaving the circumstantial evidence into proof beyond a reasonable doubt. A final piece of evidence emanating from a text message sent by Mr. Didechko some two hours after the incident neatly sums up the case: “something bad happened sry” (at para 73). It should finally be noted that this same technology also assists the accused in his acquittal of dangerous driving causing death pursuant to s. 249(4) as the GPS evidence could not conclusively show he was driving in a manner dangerous to the public.

The use of GPS and cell phone tower evidence at trial is not novel. For instance, GPS evidence is used in Fisheries Act prosecutions, such as in R v Fraser, 2012 NSPC 55. Such evidence is also used in criminal prosecutions to establish a conspiracy or a common purpose to commit an offence such as in R v Crawford, 2013 BCSC 932. It has also been used to assist in assessing the credibility of witnesses in a “he said/she said” sexual assault allegation, such as in R v Aulakh, 2012 BCCA 340.  Rather, what is novel in the Didecheko case is the utilization of this technological evidence as a combined narrative on the ultimate issue of guilt or innocence. Justice Germain at para 30 of the decision suggests that “modern technology has changed the way in which police investigate crime.” I would change that sentiment only slightly to suggest that modern technology has significantly changed the legal landscape and we, as members of the legal community, must be ready to embrace it.

On The DLW Decision and The Meaning of Modernity

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

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

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

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

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

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

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

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

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

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

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

 

 

Episode 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.

 

Who Are the “Parents of the Nation”? Thoughts on the Stephan Case and Section 215 of the Criminal Code ( also published on the ABlawg.ca website)

Much has been written and said on the characteristics of a “good” parent. Such information is easily accessible by anyone with a library card and internet access. It can be found by a click of our mouse on various blog postings (click here for a list of parenting blogs, which share the “real truth” about parenting) and dedicated websites (click here for a list of “not-to-be-missed” websites). Even celebrity has something to say about parenting practices; cue self-styled “lifestyle” guru, Gwyneth Paltrow, who famously has her children on a controversial low-carb, sugar free diet. Social media is another fount of information, often in the form of criticism or apologies. All of these venues enforce a “normative” notion of parenting. But through all this data there seems to be a bright-line drawn between “good” and “bad” parenting. For example, “bad” parents administer cocaine to a child (R v TB, 2010 ONSC 1579), knowingly leave a child in a car for an extended period of time during a hot summer afternoon (R v Huang, 2015 ONCJ 46), or intentionally attacks a child with a knife (R v BJG, 2013 ABCA 260). In those instances, the egregious conduct is not merely “bad” parenting but criminal behavior deserving of state imposed sanctions and its concomitant stigma. Although we can recognize “criminal” parenting when we see it, the real difficulty lies in identifying behaviors that are not so evidently “bad.” The recent Stephan case has ignited a debate on where that line between “bad” and “criminal” should be drawn; or is the line already drawn perhaps not as bright as we might have previously believed?

David and Collet Stephan were convicted of failing to provide the necessities of life to their 19-month old child, Ezekiel, who died from bacterial meningitis after the couple rejected medical treatment for the child opting instead for naturopathic remedies. The seven-day trial attracted intense media and social media attention. For instance, a quick and crude Google search of “David Stephan” provided 91,400 results, while “Collet Stephan” produced 67,700 hits. Interestingly, a Google search for “David and Collet Stephan” netted 40,800 results, while the reverse search of “Collet and David Stephan” suggestively revealed only 912 web hits. This difference can probably be explained by David Stephan’s very public disappointment in the verdict and the “open letter” to the jury he posted on Facebook. In any event, the reaction to the verdict was not homogeneous, with many people supportive of the couple shocked at the guilty verdict, while others were distinctly unsurprised. The reason for this disconnect may lie in the actual offence charged, which is found under section 215 of the Criminal Code.

Section 215(1) creates legal duties on people based on the nature of the relationships between them, or based on undertakings to care for a person in need. Under subsection 2, it is the failure to perform that duty which lies at the crux of the offence. Traditionally, criminal law is disinclined to base criminal sanction on omissions or failures to act. This disinclination can be seen in the parameters of criminal omissions such as found in s. 219, criminal negligence, wherein an omission can be an element of the offence if it involves a “duty imposed by law.” Indeed, such a legal duty can be found under s. 215. Even though omissions sit uncomfortably within the criminal law, section 215 as a crime of neglect has been in the Criminal Code since its inception in 1892.

Section 215 has changed very little over the ensuing 134 years other than making the application of the section gender neutral and increasing the maximum penalty upon conviction. Since 2005, if the Crown elects to proceed by indictment, the maximum sentence is five years incarceration, increased from the previous maximum of two years. On summary conviction maximum has also increased to a period of eighteen months incarceration, up from six months and/or a $2,000 fine. Despite the longevity of this section, there appears to be a surprisingly small number of reported cases (Westlaw search produced 371 cases with 149 of those pertaining to the duty of a “parent” to a child). The historical reason for the parental legal duty was to account for the husband/father deserting a wife and child, which caused an endangerment of life and health (R v Middleton, 1997 CanLII 12350 (ON SC) LaForme J (as he then was) at para 10). Although in later amendments, the definition of “parent” included either spouse, the broader objective of criminalizing parental conduct remained the same.

Case law has distinguished the duty imposed as a result of a familial or familial-like relationship from the duty arising from an undertaking to care for a person in need. In the latter case, it is this “undertaking” to protect and provide for another person which controls the duty. This focus on an “undertaking” has its genesis in contract law as noted in Burbidge’s Digest of the Criminal Law published in 1890 before the Criminal Code was introduced. In Article 269 the duty to provide the necessaries of life arises “by contract or by law, or by the act of taking charge.” This concept of “taking charge” with a resultant undertaking to assist is consistent with common law omissions, which arises from a positive act of the accused. Once an accused acts by undertaking to care for another then the duty to continue those actions arise. Any failure or neglect of that undertaking or duty, which results in harm or a risk of harm, becomes the omission under the criminal law. Much of the legal controversy regarding this duty naturally focuses on the actual initial act or undertaking and in what circumstances the law should find such a duty to exist or not.

In the matter of a “parent, guardian or head of a family” who fails to provide the “necessaries of life” for a child under sixteen years, it is the ongoing nuclear relationship which binds them. Case law, as it relates to a parent’s duty to a child, does not focus on the creation of that relationship. Rather, the more pressing issue, in terms of the actus reus requirements, is whether or not the neglect constitutes the “necessaries of life” which endangers the life or health of the child. In the 1912 Sydney case (20 CCC 376 (SKCA)), the term “necessaries” included “food, clothing, shelter, and medical attendance.” That list was non-exhaustive and depended upon the circumstances of the case. The term also acquires its meaning from the Criminal Code as the heading under which s. 215 is found is entitled Duties Tending to Preservation of Life. By this “preamble,” necessaries must be those which “tend to preserve life” and are not necessaries “in their ordinary legal sense” (Rex v Brooks (1902), 5 CCC 372 (BCCA)).

This uncodified judicial definition of “necessaries of life” has broadened in scope over the years to reflect society’s changing values. Modernity lies at the core of these changes as technological advances, the humanistic approach, and as mentioned earlier, the advent of media has required more or even different parental obligations. The “necessaries of life” has become more than adequate subsistence as it reflects society’s concern to protect the most vulnerable in our society from harm. To that end, Justice G. A. Martin in the 1981 Ontario Court of Appeal case of Popen (60 C.C.C. (2d) 232) found the “necessaries of life” should not be confined to specific necessities such as food and shelter. Rather, it also includes a more general duty to provide “necessary protection of a child from harm” (Popen at para 20). This broader definition was applied in the 1999 Hariczuk case ([1999] OJ No. 1424 (ONCJ)), in which Justice Vaillancourt found a parental duty, under s. 215, to provide a safe environment for a child. Tragically, the accused, who was making great progress in his drug addiction treatment in order to be a “good” parent to his six-year old son, prepared his methadone treatment by mixing it with his son’s favourite beverage. Although Mr. Hariczuk cautioned his son not to drink it, the child did so when he awoke thirsty in the middle of the night. In that case, Hariczuk was convicted of manslaughter.

Although society shares the obligation to protect children as seen through the myriad of child protection legislation both federally and provincially, public policy requires that parents must meet the standard of conduct of a reasonably prudent parent. It is in those cases where the failure in the s. 215 duty is a “marked departure” from the norm, that the criminal law bright-line is drawn between a “bad” parent and a “criminal” one (R v Naglik, [1993] 3 SCR 122, 1993 CanLII 64 (SCC), Lamer CJ at paras 45 to 46). This marked or criminal departure from the accepted standard of care constitutes the mens rea or fault element of the offence under s. 215. It is an objective standard of liability, which does not depend on the awareness or intention of the accused but on the legal construction of a standard embodied by the “reasonably prudent parent.” Therefore, the determination of criminal responsibility depends on "a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health, of the child"(Naglik at para 46; R v JF, [2008] 3 SCR 215, 2008 SCC 60 at para 8).

Despite Lamer CJ’s great efforts in the late eighties and early nineties to imbue the objective standard with the personal characteristics of the accused as a concession to human frailties in order to ensure the morally innocent would not be captured by the criminal law, the “reasonably prudent parent” does not “look” like the accused. The “modification” to the objective standard, if it can even be called that, lies in the requirement that the trier of fact assess the standard in light of the circumstances of the case. Therefore, it is in the determination of the facts and how they connect to both the actus reus and mens rea requirements, which will result in a finding that certain parental conduct is or is not criminal.

Of course, this suggests a range of contextualized conduct that will attract penal sanctioning. In fact, many cases involving the death of a child result in charges of murder (s. 229) or manslaughter (s. 222(5)(a) or (b)) or criminal negligence causing death (s.221). The legal duty found under s.215 can provide the underlying unlawful act for all of these charges, even for the offence of murder, which requires a subjective fault element. For example, in R v Boittneau, (269 CCC (3d) 227, 2011 ONCA 194) the grandparents were convicted of second-degree murder for the neglect of their grandson. Another Alberta trial is soon to begin in which the parents are charged with first-degree murder as a result of the death of their son who died of a bacterial infection, allegedly contracted as a result neglect.  Some cases, not involving a fatality, may be a criminal negligence charge, under s. 219 of the Criminal Code, predicated on s. 215 as the legal duty required as part of the actus reus of the offence. In those cases, the prosecution must not only establish the required elements of s. 215 but must also prove that the conduct of the accused, objectively viewed, displayed a “wanton and reckless disregard for the lives and safety of others” and was a marked and substantial departure from the required standard. The higher degree of departure being both “marked” and “substantial” is consistent with the higher possible penalties upon conviction (see R v ADH, [2013] 2 SCR 269, 2013 SCC 28 Cromwell J at para 61).

Understanding the background and make-up of s. 215 does assist us in discussing the Stephan case and the resultant public interest in the file. In many ways, the circumstances fit easily within the legal duty as outlined in s. 215 and the judicial interpretation of the necessaries of life. There are many cases where a parent’s failure to provide a child with prompt and adequate medical attention has resulted in a conviction under s. 215 or for the more serious offences of criminal negligence or manslaughter. Some of these cases are in the context of the belief system of the parents, typically on religious grounds. In the seminal case of Tutton and Tutton ([1989] 1 SCR 1392), Arthur and Carol Tutton were convicted of manslaughter as a result of stopping their diabetic child’s insulin injections in favour of faith healing. The Supreme Court of Canada sent the matter back for retrial but on the basis of the inadequacy of the charge to the jury on the defence of mistake of fact. In that case too, public opinion was divided. According to a news article describing the conviction, “a number of supporters cried and embraced” the Tuttons.

Although factually, the Stephan case seems to “fit” the kind of conduct prosecuted under s. 215, the emphasis must not be on the tragic outcome but on whether or not the conduct was a “marked departure” from the reasonable parent standard. As with so many legal terms “marked” is not quantified but is to be read in the context of the criminal sanction. As with driving offences, to attract a criminal sanction, the conduct must involve more than mere imperfections. Thus, the question of what is “marked” is not based on “are these parents “bad” parents,” or even, “based on my own personal standards are these parents bad parents,” but rather the question is based on the societal standard in place in the context of the circumstances.  Therefore, it is not those who occasionally slip off that standard or even those who are continually slightly below that standard, who should be subject to society’s ultimate approbation through our criminal law. For instance, in the 2006 Brennan case (243 NSR (2d) 18 (NSPC)), Rhonda Brennan was acquitted of failing to provide the necessaries of life to her two-month old child. The child was born seven and a half months premature. Although the baby initially gained weight and seemed to thrive while in the hospital, once in the mother’s care, the baby’s weight declined. Rhonda generally followed medical instruction, took her baby to the public health nurse and pediatrician, and implemented a feeding regime. In acquitting Rhonda, Provincial Court Judge Tufts found that although she failed to adequately feed the baby, the risk of harm to the child would not have been apparent to a reasonably prudent parent. Another parent may have been more “attuned” to the situation and more “aggressive” in their approach but the accused’s conduct was not a marked departure from the standard.  In the Stephan case people will disagree on the verdict based on their own concept of parenting and strongly held beliefs but, accepting that the jury was properly instructed on the law, the finding of guilt would be based on a finding that in all of the circumstances, objectively viewed, the Stephans’ conduct was a marked departure from that of the reasonably prudent parent.

Still there is room for debate over the criminalization of parenting and the efficacy of permitting the law access into our most intimate relationships (in a different context I harken back to Prime Minister Pierre E. Trudeau’s oft quoted statement that “The state has no business in the bedrooms of the nation”). We should, as a society, discuss where the line should be drawn and when we should “invite” the law into our homes or sanction its entrance through our Criminal Code in the guise of parens patriae (translates to “parents of the nation”). Perhaps we should also reconsider how we judge ourselves and our neighbours, particularly in social media.  In an age of opting out of vaccinations and home schooling, the boundaries of “good” and “bad” parenting seem to shift and waver with each Twitter re-tweet and every Facebook “like”: Was that lunch nutritious enough? Do my kids go to bed too late? Are my children too scheduled? And, finally, am I being judged for my parental decisions? Although all of these concerns are a far cry from the kind of conduct underlying s. 215, all of those criminal cases, including the Stephan case, raise the tension we all feel between private life and public expectations.

 

In Praise of the Passionate Lawyer

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

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

R v LSM and the “Sanctity” of the Joint Submission: A Case Commentary for ABlawg (http://ablawg.ca)

In R v LSM, 2016 ABQB 112, Associate Chief Justice Rooke of the Court of Queen’s Bench of Alberta, sitting as a summary conviction appeal court, considers the “sanctity” of the joint submission and the circumstances in which the subsequent sentence will be varied on appeal. In his view “an appeal of a joint submission should rarely succeed” (at para 20). He supports this position by outlining three very narrow exceptions to this rule. After a thorough analysis of the principles, Associate Chief Justice Rooke reluctantly allows the appeal in part. He does so by finding only one ground of appeal, the ground presented on consent, falls within an exception. The decision, on its face, appears to be a straightforward application of the principles at hand. Yet, on further contemplation, this decision may not be about the “sanctity” of a joint submission but rather about ensuring that, in the end, justice is done.

Associate Chief Justice Rooke immediately frames the issue in sweeping terms in the opening paragraph of the decision: “This case concerns the sanctity of the ‘joint submission’ on a guilty plea and sentence in the administration of justice.” On a review of case law, the descriptor “sanctity” seems overdrawn. Although, joint submissions enjoy a “high level of deference” and must be given “serious consideration” by the sentencing judge (See R v GWC, 2000 ABCA 333, Berger, JA at para 20), they are not inviolable. A sentencing judge is not bound by the proposed sentence. Indeed, as explained by Mr. Justice Berger in GWC (at para 19), it is incumbent on the sentencing judge to undertake “a careful and diligent inquiry of counsel as to the circumstances underlying a joint sentencing submission” before exercising the discretion to accept it.  This is done to ensure the proposed sentence, in accordance with sentencing principles, is a fit one. Accordingly, sentencing judges should only reject a joint submission where the sentence proposed is unfit or unreasonable (See R v Gibson, 2015 ABCA 41 at paras 9 to 10).  Indeed, departing from a joint submission, which is fit, should not be done “even if he or she would impose a harsher sentence which would also be fit and reasonable” (See R v Bullock, 2013 ABCA 44, Berger, JA for the majority at para 18).

Some appellate jurisdictions have taken the position that a joint submission may also be rejected if the sentence is contrary to the public interest and would bring the administration of justice into disrepute. Currently, the efficacy of this additional more stringent ground for departing from a joint submission will be argued on March 31, 2016 before the Supreme Court of Canada in the Anthony-Cook case on appeal from the British Columbia Court of Appeal (R v Anthony-Cook, 2015 BCCA 22). In Alberta, this ground has not been consistently adopted. In the GWC decision, Mr. Justice Berger does refer to this position in paragraph 18 without endorsing it as a viable ground beyond fitness or unreasonableness. In the dissenting decision of Shular, (2014 ABCA 241) Madame Justice Hunt at paragraph 106 does rely on this ground as providing an additional basis for rejecting a joint submission. However, leave to appeal to the Supreme Court of Canada was dismissed in this case (Robert Shular v Her Majesty the Queen, 2014 CanLII 76800 (SCC).

Additionally, the joint submission itself is not considered a binding undertaking between the defence and prosecution. In the 2011 Nixon case ([2011] 2 SCR 566), the Supreme Court of Canada agreed with the Alberta Court of Appeal’s decision that the repudiation of a plea agreement, on the basis it was contrary to the public interest, was not an abuse of process but a proper exercise of prosecutorial discretion. In that instance, the plea negotiation included a joint submission on sentence.  

Even though the original joint submission cannot be considered sacrosanct, is the sentence imposed on the basis of a joint submission essentially “appeal proof?” Associate Chief Justice Rooke finds it is, except in three very narrow circumstances. In his view, where a joint submission is proffered by competent counsel and accepted by a sentencing judge, the offender should not be permitted to “resile” later on appeal (para 2). Further, according to Associate Chief Justice Rooke, the the appeal court should “support” joint submissions by upholding them on appeal (para 21). As he explains, in paragraphs 21 and 25, a joint submission is an efficient and effective way to deal with criminal matters in the “busy docket courts.” It would therefore be counter intuitive to the realities of the practice of criminal law and the quest for finality to provide a further forum for change. The appellate arena is not, as described by Associate Chief Justice Rooke in paragraph 25, an opportunity to express “buyer’s remorse.” This last comment has some truth to it as there must be articulable grounds for appeal in accordance with sentencing principles and s. 687 of the Criminal Code. However, Associate Chief Justice Rooke further contends that a sentence resulting from a joint submission does not exist “until we allege there is an error in the sentencing judge accepting our representations or some other way.” This premise comes very close to suggesting an erroneous position: that even an error in principle should not be a ground for appellate intervention. As argued in this commentary, that is exactly when appellate intervention is not only permitted but also desired.

In any event, Associate Chief Justice Rooke cites three “very narrow” circumstances in which an offender can “resile” from a sentence imposed by way of joint submission (para 2). The first exception is where the sentence imposed is illegal as it is statutorily unavailable (para 3). The second instance is where the sentence, “for some unusual reason,” is demonstrably unfit (para 4). Third, which according to Associate Chief Justice Rooke is the situation in LSM, is where there is a “change in circumstances” after sentence is imposed (para 5).

The first exception, illegality of sentence, makes sense. Certainly, there is an obligation on the appellate court to correct an illegal sentence. Even in cases where an appeal has not been filed within the designated appeal period, the court has allowed extensions to file an appeal where an illegal sentence was imposed (see for example R v MJR, 2007 NSCA 35). In R v Hunter (2004 ABCA 230), the Alberta Court of Appeal vacated the illegal conditional sentence of 18 months imposed for a summary conviction offence, where the maximum sentence was six months incarceration, in favour of time served.

The second exception permits an appeal where, for “unusual” reasons, the sentence imposed is demonstrably unfit. As an example of this, Associate Chief Justice Rooke refers to in paragraph 4 the unusual situation in which competence of counsel is raised on appeal. Granted, competency of counsel as it relates to the efficacy of a joint submission is a valid ground and, due to the presumption of competency, may be viewed as rarely raised. Leaving that situation aside, there may be other situations, not as rare, where a sentence resulting from a joint submission is demonstrably unfit or unreasonable. Associate Chief Justice Rooke in paragraph 21 depicts the heightened circumstances in which a joint submission might occur as a “busy docket court” where counsel “deemed to be competent and knowledgeable in the law” proffer a joint submission thereby “impliedly certifying” the sentence is fit and requesting the sentencing judge to “endorse” it.  Indeed, as mentioned earlier, it is precisely in those heightened circumstances of “busy docket courts” where matters are dealt with summarily, which may provide the perfect environment for an unfit sentence. It is in those scenarios where an accused may too readily accede to a joint submission or where “competent and knowledgeable counsel” may accept a position that upon further reflection may require appellate scrutiny. In the end, it is the ultimate fitness of the sentence imposed by whatever means, which is at issue on appeal. As Mr. Justice Wagner explains in paragraph 3 of the Lacasse decision ([2015] 3 SCR 1089), it is the very credibility of the criminal justice system at risk when an unfit sentence, be it “too harsh or too lenient,” is imposed. An unfit sentence does not become fit merely because everyone agrees to it just as an illegal sentence, imposed on consent, does not then become legal. There are numerous appellate decisions upholding departures from joint submissions to further this contention. Surely, the same reasoning should hold in the converse situation of an offender appealing a sentence he or his counsel agreed to previously, particularly considering it is the offender’s liberty interest which is at risk.

It is the third exception, permitting a variation where there is a change in circumstance after imposition of the sentence, which seems an incongruous ground considering Associate Chief Justice Rooke’s position. Indeed, a change of circumstance (not even a material change of circumstance is required) is a generous ground for intervention. In paragraph 27 of the decision, Associate Chief Justice Rooke attempts to support this ground for intervention by reference to the 2012 decision of the Alberta Court of Appeal in R v Gangl (2012 ABCA 121). There, the majority of the court found the sentencing judge made no errors in imposing sentence yet reduced the sentence. In the majority’s view, the appellant’s circumstances were exceptional and the accused who had “serious health problems” was impacted by the “consequences” of the conviction. As a result, the majority converted the conviction to a conditional discharge. The dissenting justice disagreed as there was no “reviewable error.”

Although Associate Chief Justice Rooke characterizes the Gangl decision as authority for an exception to the general rule, this finding is questionable for two reasons. First, this was a case, according to the majority, for a conditional discharge. A discharge under s. 730 of the Criminal Code, is a sanction in which a finding of guilt is made but no conviction is entered. A discharge, per s. 730, is granted where it is “in the best interests of the accused and not contrary to the public interest.” A consideration in imposing a discharge is whether a conviction would have “serious repercussions” (See R v Sanchez-Pino, 1973 CanLII 794 (ON CA)) for the accused, such as employment difficulties or, as suggested by the court in Gangl, “a number of consequences flow from this conviction” (para 2). Admittedly, the court’s analysis in Gangl is brief and does not discuss the six factors to consider in granting a discharge as required by the MacFarlane decision (1976 ALTASCAD 6 (CanLII)), but, on the face of the record, one could argue that in Gangl there was a “reviewable” error.

Second, this exception for a change in circumstances post-sentence is not a ground for appellate intervention according to the newly released decision of the Supreme Court of Canada in Lacasse and as quoted by Associate Chief Justice Rooke in paragraph 24. Associate Chief Justice Rooke makes further reference to the Ontario Court of Appeal case in Wood (1988, 131 C.C.C. (3d) 250). This is a 1988 case decided before the Supreme Court of Canada decision in Lacasse in which, as previously discussed, emphasizes the importance of deference to the sentencing judge. Further, Justice Lacourciere at paragraph 9, in rendering the Wood decision, states that “certainly the accused is given greater latitude than the Crown on an appeal of this kind in that he is generally not bound to the same extent by the submissions of his counsel as to sentence.” Wood was referred to approvingly in both the GWC decision at paragraph 19 and in the LRT decision (2010 ABCA 224 at para 11). As succinctly put by Justice Lacourciere in Wood (para 9), “the ultimate responsibility to determine the fitness of sentence is on the Court of Appeal.”

Associate Chief Justice Rooke, applying his rule, ultimately finds only one ground of appeal as a matter properly coming under the third exception. Earlier, in outlining this exception in paragraph 5, he offered s. 161 as an example of when such a change in circumstances may occur. This section provides for a variance of conditions in a prohibition order imposed on an offender convicted of any number of sexual offences involving children. As he notes and as contained in the wording of s. 161(3), an application to vary the sentence is heard before the sentencing judge or “where the court is for any reason unable to act, another court of equivalent jurisdiction.” In other words, the proper forum for the change is not on appeal but on application to the originating court.  Yet, Associate Chief Justice Rooke despite the matter of jurisdiction, varies sentence on this ground, not because of s. 161 but because the change in circumstance is a new joint submission proffered on appeal by two competent counsel. One can infer, as equally competent as sentencing counsel. Here, Associate Chief Justice Rooke finds himself between the proverbial “rock and a hard place”: on one hand, he outlined the difficulties of appealing a joint submission, the rarity of success, the limited circumstances it should be done, the sound policy reasons for not permitting such an appeal. On the other, he accedes to the new joint submission, not based on any principles of sentencing, but rather on a procedural availability not even within his purview on a strict reading of the section.

Perhaps, in the end, this pragmatic and experienced trial judge, sitting as a summary conviction appeal court, recognized that principles and rules do not always produce a just outcome. Perhaps, he agrees with the majority of the Alberta Court of Appeal in Gangl that the appellate court “is the last stop on the road to mercy” (see Gangl, Watson JA at para 21). Or perhaps, as initially suggested by Associate Chief Justice Rooke, the LSM decision may indeed be all about the “sanctity” of the joint submission, in whichever forum it is offered and in whatever circumstances it arises.