In this episode, we are still considering Offences Against Public Order involving treasonous conduct. Section 49 prohibits acts tending to alarm Her Majesty or acts that break the public peace. The section reads as follows:
Every one who wilfully, in the presence of Her Majesty,
(a) does an act with intent to alarm Her Majesty or to break the public peace, or
(b) does an act that is intended or is likely to cause bodily harm to Her Majesty,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
The purpose of the section is to protect The Queen from harm, alarm, or even a rowdy crowd. This is a serious offence: Those who are found guilty under the section face up to 14 years incarceration. Although the fault element is clearly subjective, the word “wilfully” does not necessarily denote a high level of intention to be proven and may include the lower level of subjective mens rea of recklessness. That argument is strengthened by subsection (b) which requires that the accused either intend to cause bodily harm or does an act that is “likely” to harm The Queen. This likelihood requirement suggests foresight of risk to the prohibited consequences including recklessness. Alternatively, the section can also be interpreted as to require full subjective intention for an offence under s. 49(a) and a more general form of intention, including recklessness, for a 49(b) offence. This interpretation is supported by the requirement in (b) for the more serious and direct harm to The Queen. However, the sanction is as severe for both prohibited acts. Considering, the offence is listed under s.469 as within the exclusive jurisdiction of the Superior Court, an argument could be made that only the highest level of intention will fulfill the mens rea requirements for both subsections.
To fulfill the actus reus requirements, the accused would have to commit the prohibited acts in the “presence” of Her Majesty. Although this term suggests a face to face encounter, mere presence may mean the accused need only be in the general area. If that is the interpretation, again, relying on symmetry between the actus reus and mens rea, the accused would have to be aware The Queen was also present at the time of the prohibited acts.
Under (a), the prohibited act is “alarm” or “break the public peace.” Alarm is not defined under the Code, but the term does appear in other sections such as s. 372, the offence of false information. We will on another occasion discuss that section more thoroughly but the wording in s. 372 is similar to s. 49. Under 372 (1), the accused must intend to injure or alarm a person by conveying false information. Notice there is no requirement the accused act “wilfully.” Under subsection (2), the accused must intend to alarm or annoy a person by making an indecent communication. This offence is a dual offence, punishable by summary conviction or indictment with a sentence of 2 years less a day (meaning an accused who receives the maximum sentence will be sent to a provincial institution as opposed to a federal institution, which requires a sentence for two years or more). Clearly this offence is viewed as less serious than alarming the titular head of state. Again, this increase in penalty for s. 49 is consistent with the concern with treasonous activities. The other section in the Code, requiring “alarm” is s. 178, in which the accused possesses, throws or injects an offensive volatile substance that is likely to alarm, inconvenience, discommode or cause discomfort to any person or to cause damage to property. According to the dictionary, “alarm” means “a sudden sharp apprehension and fear resulting from the perception of imminent danger.” It seems alarming The Queen means much more than merely surprising her.
The section also prohibits the accused from breaking the public peace in Her Majesty’s presence. The phrase “break the public peace” is unique to the section but the term “public peace” is used elsewhere. “Public peace” is found in s. 88, which prohibits the possession of a weapon dangerous to the public peace. It is also used to describe the duties of a peace officer under s. 2, as someone who “preserves and maintains” the public peace. In the 2004 Supreme Court of Canada Kerr decision, the concurring judgment of Justice Lebel (with Justice Arbour) defined “public peace,” in the context of s. 88. The phrase was an ancient one, referring to the King’s Peace as defined in the 1888 Volume 7 of Murray’s New English Dictionary of Historical Principles, the precursor to the Oxford Dictionary. There, the King’s Peace is defined in a more general sense as the “general peace and order of the realm, as provided for by law.” Hence, the term “keep the peace and be of good behaviour” as found as a condition in common law peace bonds. In Kerr, Justice Lebel preferred a more restrictive meaning to ensure the offence was not overbroad and to relate the phrase to the modern realities of society. Therefore, a breach of the public peace under the Code contemplated actual harm done to a person or harm likely to be done as a result of a disturbance.
Also, as mentioned earlier, this section is a s. 469 offence and within the exclusive jurisdiction of the Superior Court. Like a murder charge, another s. 469 offence, if a person is charged with this crime, the bail hearing must be before a superior court judge. At the accused’s first appearance before a provincial court judge or justice of the peace, the accused would be detained in custody pursuant to s. 515(11) of the Code to be dealt with thereafter in the superior court. Under s. 522, the burden is on the defence to apply for bail and show cause why release is warranted. This is an exception to bail principles and the Charter right under s. 11(e), which presumes release of the accused unless the Crown shows cause for detention. The trial must also be heard before the superior court judge and jury per s. 471, unless the accused and the Attorney General consent under s. 473 to trial by superior court judge sitting alone.
There is no Canadian case law relating to this section. Historically, the section was broader and in the 1892 Code was entitled “assaults on the Queen.” This original section did require that the accused act “wilfully.” Part of the punishment upon conviction in 1892 was “to be whipped, once, twice, thrice as the court directs.” This offence must be seen in its historical context: at this time there had been several assassination attempts against Queen Victoria. Indeed, the 1892 offence included specific prohibited acts, which parallel these attempts. For instance, it was prohibited to strike or strike at the Queen. In June 1850, The Queen was hit on the head with a short cane. Although not seriously injured, the accused, Robert Pate, was sentenced to 7 years of penal transportation to serve his sentence abroad in the Australian penal colony. In 1906, the offence remained virtually the same but was changed to “assaults upon the King.” The present iteration was from the 1954 Code amendments. Most likely, this section will be changed yet again when King Charles ascends the throne or it may be seen as an archaic section, not worth retaining considering there are other sections in the Code, which would suffice. In any event, this section should be reviewed as part of Criminal Code reform.
For further discussion on the criminal law as seen through “Her Majesty,” read my previous blog entitled In The Name Of Her Majesty’s Criminal Law.
Next podcast, we will continue with the treason theme and discuss s. 50 prohibiting assisting an alien enemy to leave Canada or omitting to prevent treason.