Here is the audio podcast on episode two section two:
Here is the audio podcast on episode two section two:
Welcome to episode two of the Ideablawg Podcast entitled: Let’s Talk About the Canadian Criminal Code.
As discussed in the last podcast, there is a method to the madness of writing legislation. Indeed the framework or structure of a statute is not whimsical but follows certain prescribed formats. These formats may differ slightly from statute to statute and from levels of government as we learned when we talked about preambles to an act as opposed to a purpose section found within a statute. But in essentials, statutes tend to look very similar.
One of these similarities is found in section 2 of the Criminal Code – found under the interpretation segment of the Code, entitled “definitions.” These words and phrases are definitions of key terms used within the Criminal Code.
Now I called this section hefty yet incomplete. Hefty, because this section 2, which is not broken down into subsections as other sections of the Code are, provides us with a long alphabetical list of words in which some terms are defined quite lengthily. In fact, there are 73 words listed under section 2 from “Act” to “Writing.” Of the 73, 2 are repealed: the term “feeble-minded person” was repealed in 1991 and “magistrate” in 1985 as these terms are no longer used in the Criminal Code. Of course, Canada no longer has any “magistrates” as they are now known as “provincial court judges.”
The term “feeble-minded person,” however, comes from the old rape provisions in the Criminal Code, namely s.148, and came into force through the 1922 Code amendments. It is difficult to read this old section without cringing:
s. 148. Every male person who, under circumstances that do not amount to rape, has sexual intercourse with a female person
(a) who is not his wife, and
(b) who is and who he knows or has good reason to believe is feeble-minded, insane, or is an idiot or imbecile,
is guilty of an indictable offence and is liable to imprisonment for five years.
The term also applied when considering the old insanity defence under the now amended (as of 1991 there is no insanity defence but an offender may be found NCR or “not criminally responsible” as a result of a mental disorder) s.16 of the Criminal Code. Unlike the rape provisions, this term when used in the context of insanity, applied equally to men and women. Interestingly, in the 1984 Supreme Court of Canada decision, rendered a year before the term was repealed, Justice Dickson, as he then was, in the Ogg-Moss case, agreed that the term was “somewhat disturbing to modern sensibilities” but was really equivalent to saying “mentally retarded” or “developmentally handicapped.” Of course, both of those terms today are deemed completely inappropriate as well. The term “mental disability” is now the preferred adjective. There is still a sexual offence related to this: sexual exploitation of person with mental or physical disability under s.153.1 and it applies to both men and women, married or not.
Amazing that the term, “feeble-minded person,” was only repealed in 1985.
I also call out this so-called definition section as being incomplete. Incomplete, because not all words used in the Code are defined. This has a twofold significance: as not every word which we would like to be defined is defined and not every word which is defined is found under this section.
Let's tackle the first thought: not every word we would like to be defined is defined in the Criminal Code. As we ramble through the Code, we will be faced with some crimes for which some essential elements of the prohibited act are not defined for us. At this point our only recourse is to go to the case law. Case law produced, by judges, interpret statutes together with principles found in the common law and come up with legal interpretations or definitions of the words used. If there is no case law on the word or phrase then a lawyer is forced to be creative and come up with a definition, which they hope the trial judge will accept. To be frank, the best starting point to do this is the dictionary. How is this word defined in Webster or Oxford? Then, how is it defined in case law? In other jurisdictions? And so on. To me this is the fun part of being a lawyer – when you can be part of the creation of the law.
An example would be the phrase “planned and deliberate” under s.231(2) of the Code, which is the section outlining when murder is deemed first-degree. The term is only important for sentencing classification and comes into play only after the Crown has proved beyond a reasonable doubt the intention required for murder as found under s.229. This phrase is not defined in the Code but is neatly defined in case law to mean the follows: planned - a scheme or design previously formed, and deliberate - considered and not impulsive.
Now the second thought: not every defined word is found under this section, tells us that there are other places in the Code where words are defined. For instance, there are definitions, as referred earlier, at the beginning of some Parts of the Code such as Part VI Invasion of Privacy.
There are also definitions found within sections of the Code such as the term “crime comic” under s.163(7).
Then there are the hidden gems such as the term “negligence,” an extremely important term as it signifies the level of intention required to commit an offence and is used for one of the most serious offences in the Code s.222(5)(b) manslaughter. Yet, “negligence” is defined only by reference to a title of a section. In section 436, entitled Arson By Negligence, a fairly recent offence in the Code from 1990, the actual section setting out the crime does not use the word “negligence” but instead defines it as follows:
“Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.”
“As a result of a marked departure from the standard of care that a reasonably prudent person would use” is the definition, found in case law, of criminal negligence. I leave it to you to decide if this is indeed a “hidden gem” or merely another example of the complexities of our Criminal Code.
So, in the end, section 2 is not only a list of some definitions but is also a list of what is not defined in the Criminal Code.
But of course it is not that simple.
For example, let’s look at a recent definition added to section 2 – “justice system participant.” The definition is a list of very specific categories of people who come under this term, such as under
(a) “a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council.”
Caution is required, however, as the definition is also very broad: under (b) it is also
“a person who plays a role in the administration of criminal justice.”
The definition does go on to list examples, but clearly this definition is not exhaustive. Imagine if we went to the dictionary for a definition of a word and it said etc, etc, etc.. Not overly helpful is it – so again we are down to case law and a possible argument in court in order to define the definitions and give them boundaries.
Before I close, I would like to discuss s. 2.1, which is a new section added in 2009. This section also provides us with definitions; in fact it is entitled “further definitions – firearms.” Okay, so instead of amending section 2, the government simply added a section 2.1 with firearm specific definitions.
Well, no not really.
Section 2.1 merely points us to the place where the listed terms are actually defined. The section lists words such as “ammunition” and “replica firearm” and tells us that those listed words have the same meaning as in s. 84(1). If we go to s. 84(1), we see a section defining a number of terms, including the ones listed under s. 2.1. This s. 84(1) is in fact the definition section for Part III of the Code on Firearms and Other Weapons. As mentioned earlier a Part may start with definitions of words found within the particular Part. Certainly, there are no definitions in the Code, which contradict, meaning there are no definitions of a term for one Part of the Code and then a different definition for the exact same term in another Part. So why did the government add this s. 2.1? For clarification? For extra emphasis? Why?
Well, in my view, Section 2.1 instead of clarifying actually does the reverse as it leaves the impression that if the word is only defined under a particular Part, that does not necessarily mean that word, if found elsewhere, has the same meaning.
And to make us even more confused, there is a federal statute with definitions, which apply to all federal legislation, as long as it is consistent with that legislation, called the Interpretation Act.
Now that’s confusion for you, that’s the Criminal Code for you, and that is the podcast for this week.
Next week we will discuss this Interpretation Act a bit more when we look at the last of the interpretation sections in the Code: section 3.
Please note: This is the text of the Episode Two of my podcast. I do not have the audio file attached but will be sending out the actual podcast in a separate file.
I recently read a compilation of essays, in a work from an outstanding publishing house Sternberg Press, Thousand Eyes: Media Technology, Law and Aesthetics, on the connection between contemporary art and law, particularly courts of law, where the art theory concept of “representation” and the physical and legal attributes of law intersect through the courtroom. From that connection the comparative analyses are many and varied: the courtroom as theatre, evidence as iconoclastic images, and the changing role of new media. But what struck me was the concept of the law court as a bounded space, which reinforces the separateness of the law world from the real world.
In his essay In Between: Power and Procedure Where the Court meets the Public Sphere, Richard Mohr observes the fixity of our courts within a self-constructed bounded space and the resultant tension between those inside, the legal players, and those outside, the public. He argues this border between the two is not just physical but conceptual as well. Not only does the courtroom have a fixed address with an enclosed space but the rules or procedures too emphasis closure through the rules of evidence, which permit only certain forms of approved facts into its space. This closing off of the law not only impacts public access but also public perception.
Other essays in the collection go further and suggest the advent of new media and the relaxation of media in the courtroom has expanded the courtroom walls and changed the static concept of law. However, one of the editors, Judy Radul for whom the essays were published to celebrate her World Rehearsal Court exhibition, in her essay, Video Chamber, argues to the contrary: in her view, the ability of the courts to be connected elsewhere through, for example, CCTV, makes the court an even more enclosed space “monolithic and unmovable” as the court hunkers down, forever fixed in place, as the images come to it.
This legal architecture then becomes an impactful aspect of the law, particularly in light of the access to justice issues Canada has been recently facing. It may also impact how the Supreme Court of Canada view evidentiary rules: should they unbind the courtroom or provide further enclosure?
The connections between art and law may, at first glance, appear superficial: yes, the lawyers are like actors in a Shakespearean play, albeit their backs are usually to the audience. However, when viewed through the lens of art theory, the representational force of the law cannot be doubted. This is something to think about when arguing in the bounded space of the law.
The following is the text of my first podcast including the actual downloadable podcast found at the end of the text. I am working on adding the podcast to iTunes and will announce this next step when it is completed!
Welcome to the “Let’s Talk About The Canadian Criminal Code” podcast. This podcast is a companion to my blog found at www.ideablawg.ca where ideas and law connect. In this podcast I hope to go through the Criminal Code section by section and discuss some interesting issues arising from each one. Be warned, although the Code ends at s.849, there are so many sections between sections that this podcast will continue for quite some time. Indeed the length of the Code will form part of one of my podcasts. After a few sections, I will do a “brain break” podcast where we will discuss a fact or issue related to the Criminal Code or criminal law in general but not arising directly out of a particular section.
Today we are going to do the obvious and start at the beginning – section 1. On the face of it, Section 1, as with many statutes does not seem to be very important or overly interesting. Typically, the first section of a Federal statute is called the “short title.” The “short title” names the statute in a user-friendly manner. Often when the government brings forward a statute as a Bill, the working title is lengthy and cumbersome. Thus, the short title is a welcome first section.
Note, however, I said this is typical of the first section of a Federal statute. Provinces, who also produce legislation, do not have the same typical format for their legislation. For example, in Alberta many statutes start with a “preamble.” This preamble sets out the government’s purpose for enacting the legislation as a kind of mission statement indicating why the government desires this legislation and what the legislation aims to do. It also acts as a “forshpeis” or “bouche teaser” and gives us, the reader, a taste of what’s to come in the Act. It fills in the statute with emotive content as it speaks to the societal values ultimately expressed by the legislation. Some cynics might say the preamble is the political posturing or propaganda piece of the law. A good example is the preamble to the Alberta Human Rights Act, which reads as follows:
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice and peace in the world;
WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation;
WHEREAS multiculturalism describes the diverse racial and cultural composition of Alberta society and its importance is recognized in Alberta as a fundamental principle and a matter of public policy;
WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all Albertans should share in an awareness and appreciation of the diverse racial and cultural composition of society and that the richness of life in Alberta is enhanced by sharing that diversity; and
WHEREAS it is fitting that these principles be affirmed by the Legislature of Alberta in an enactment whereby those equality rights and that diversity may be protected:
You get the idea.
So the question is: why doesn’t the federal government do this? First, the federal government through Parliament does present their reasons for bringing forward legislation. They write background papers and other such reports posted to their website to bring home to the nation why they consider their laws to be important and essential for living the “good life” in Canada. So they don’t usually need to express it in a preamble. What they will do is have a section in the Act, often near the beginning, where they state the purpose of the legislation such as in The Competition Act and The Contraventions Act. Usually this kind of statement is terser than the preamble I just read to you and form part of the actual legislation. Of course, there is an important
exception: the Constitution Act, 1867 founding our Dominion of Canada comes with a preamble and so does Part 1 of that Act being the Canadian Charter of Rights and Freedoms. The Charter’s “preamble” is short and to the point and reads: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:” I will pause here as I am sure many of you are a little surprised to hear that God has been invoked as a preamble to our Charter. Hmm. I wonder if the Charter breaches s.2(a) of the Charter – the fundamental freedom conscience and religion – in which we protect a person’s right to not believe in a supreme being.
Well, on that note, I leave you to consider the short title section of the Criminal Code. Next week we will consider section 2 – the unwieldy interpretation section.
Thank you for listening to the Ideablawg Podcast – where ideas and law connect!
I start my criminal lectures at MRU with a current events “sweep” of criminal cases to ground the principles and the legal “speak,” learned throughout the course, with what is really going on out there in the real world of crime. This connects concept to context, which is so important in law, in order to teach the student to apply principles to a real life fact situation. This acquired aptitude requires the student to be comfortable outside of the academic rigour of law books, a much-needed skill in the lawyering world, which promotes creativity as the context forces the student to visualize alternate solutions for the legal problem.
As I teach in Alberta, I tend to look locally when I scout out the criminal law news of the week. This past week was so full of connections that we spent a good half hour discussing three of these current cases. Interestingly, the cases themselves were connected as they all referred to the sentence imposed in each particular case.
Of course, sentencing is the last act in a criminal case where there is a conviction. Most of the “legal business” of criminal law is concerned with pre-sentence matters such as the elements of a criminal offence and the application of criminal procedure, particularly in the Charter era. Sentencing is not even taught in the mandatory first year criminal law courses and some law schools do not even offer a sentencing law course. And yet, it is the sentence, the punishment to be imposed, which garners the most public attention and hence catches the most media attention as well.
The reason for this preference is varied. My theory on the popularity of sentencing cases in the media is that sentencing tends to be easily understandable to the average citizen. Everyone appreciates the significance of time in jail. No one needs the Criminal Code to explain that. Furthermore, sentencing is the only piece of the case in which the human aspect is so “front and centre,” no longer taking a backseat to the incident itself.
The victim, at a sentencing hearing, has the right to “speak” through the “victim impact statement” and is not merely a piece of evidence required by the prosecution to fulfill the legal requirements. Instead, the victim becomes a true stakeholder in the outcome as the Judge listens to the victim, not as a witness to the events, but as a participant, whose life was irretrievably changed.
The role of the convicted accused is also transformed from the defensive position wherein a legal “wall” is built around the accused to protect but also to minimize intrusion. It is only at the sentencing hearing that the accused steps out of a caricature of an accused and becomes filled in with the life stories all too familiar in the criminal courts of childhood troubles, conditions of abuse, and social failures. No wonder, it is the sentencing arena to which the public can so readily relate and which brings home, literally, the real life angst of the criminal law.
On that note, it was unsurprising that the class started our current events journey with the Baumgartner case from Edmonton in which twenty-two year old Travis Baumgartner became the first Canadian to be sentenced for consecutive parole ineligibility terms for multiple murders under amendments to the Criminal Code from 2011. Section 745.51 of the Criminal Code permits such a sentence may be imposed by the trial Judge. Note the permissive “may” as the trial Judge is not mandated to impose such a sentence. Indeed, the section also includes the factors to consider in making the decision such as the character of the accused, the nature of the offence, and the circumstances of the incident. If the sentencing arises from a jury trial, the Judge must also consider the jury’s recommendation on whether or not the parole ineligibility should be consecutive under s. 745.21.
Baumgartner, a security guard shot four of his colleagues as they took ATM monies from the busy University of Alberta student HUB Mall. Three of the guards died and the fourth survived. Baumgartner, as part of a plea negotiation, entered a plea of guilty to one count of first degree murder under s.231(2), two counts of second degree murder, and one count of attempt murder. As indicated by Associate Chief Justice Rooke in his reasons "these assassinations and executions were carried out by a cold-blooded killer, all with the simple motive of robbery." In sentencing Baumgartner to the agreed upon total sentence of life imprisonment with no chance for parole for forty years, Justice Rooke found the offence was “some of the most horrendous crimes that anyone can imagine.” However, it was not a case for the maximum parole ineligibility of seventy-five years, as Baumgartner was not the worst offender, being a young man with no prior criminal record and in recognition of the guilty plea, which showed remorse for his actions.
These amendments to the Criminal Code, part of the tough on crime agenda of Harper’s government, did attract much controversy. Critics voiced concerns over the political motivation of the change, suggesting it was merely a “political stunt” done to assuage the public fear of crime without any hard evidence such a change would in fact change crime statistics. In a word, the changes appeared to be more about “retribution bordering on vengeance” as characterized by D’Arcy Depoe of the Criminal Trial Lawyers’ Association and less about the sentencing principles of rehabilitation and deterrence.
On the other hand, sentencing is a punishment and does have an aspect of retribution for retributions sake. Certainly, the public outrage over concurrent sentences for multiple murders is understandable on a gut-level whereby a murder of one is equated with the murder of many. The controversy over this and the other numerous sentencing changes to the Criminal Code, such as the mandatory minimum sentences, is far from over, hence my suggestion that the hot button criminal law issue for 2013-2014 will focus on sentencing and these new amendments.
The other case we considered in class, another robbery case, was closer to the academic home as we discussed the 18 month jail sentence imposed on the ex MRU President Meghan Melnyk. Unlike Baumgartner, there was no joint agreement on sentence. As an aside, it must be pointed out that a sentencing Judge is not bound by a joint submission on sentence. In any event, considering the maximum sentence for robbery is life imprisonment, the sentence, in the eyes of the class seemed light. However, considering the position of counsel on sentence: defence asked for a conditional sentence or in the alternative ninety days, while the Crown asked for four years imprisonment being the typical “starting point” for such offences, the 18 month sentence appears to be within the range. The eyebrow raising part of the matter was Melnyk’s concept of community work. Prior to sentencing she appeared at local High Schools discussing her situation and her gambling problem. Judge Brown, in sentencing Melnyk observed that she was paid for each appearance. This will definitely not be case when Melnyk fulfills the other part of her sentence when she is released from prison - 240 hours of community service.
The final case discussed was a sentence appeal argued before the Court of Appeal for Alberta. The Crown appealed the sentence imposed on ex-Stampeder running back, Joffery Reynolds, who was convicted by former Assistant Chief Judge Stevenson (of the provincial court and is now supernumery or a relief judge) of assaulting (actual convictions were for assault causing bodily harm under s. 267, assault under s. 266, and being unlawfully in a dwelling house under s.349) his ex-girlfriend for which he received a ninety-day sentence to be served intermittedly on weekends and two years probation as well as an apology letter and a five thousand dollar donation. The Crown’s position on sentence at trial and at appeal was for a two to three year sentence, an odd range considering a two year sentence is served in a provincial reformatory and a three year sentence is served in the much harsher federal system.
At trial, the defence recommended a non-custodial, particularly as Reynold’s celebrity status caused a media flurry and a diminishment of his public status. The Crown on appeal pointed to the sentencing Judge’s failure to consider the domestic nature of the offence. In discussion, the class clearly agreed with the Crown on that note, believing their relationship to be something more than just “buddies” as submitted by the defence.
This decision will be interesting as it may tackle the difficulty in sentencing the celebrity and it may also clarify the meaning of “domestic assault.” As an aside, the provincial government recently brought forward legislation to end intermittent sentences, which were used to allviate the burden of imprisonment where an offender had gainful employment. This may not be an issue raised on appeal but I believe this will cause a clash in the courts when the jail refuses to fufill a Judge's order to do so. Keep posted on this issue as well.
The other cases I had but were not discussed I will repeat here but I will not elaborate on today. Another sentencing case – the Paxton dangerous offender application is ongoing before Justice Martin. The Court of Appeal also heard an appeal against the conviction of the young offender in the Cavanagh murder case, which involved a “Mr. Big investigation.” Finally, a little off the crime path but still in the public welfare arena is the concern over work-related deaths in Alberta and the need to tighten regulatory laws in the area. The province recently went to the administrative efficiency of ticketing offenders, both employees and employers, in real-time for real-time breaches. However, the call is for more prosecutions, better outcomes, and a more serious consideration of criminal code charges for work-related incidents.
These cases, in my view, also signal some Canadian criminal law trends as the use of dangerous offender applications increase, as the courts struggle with unique investigation techniques in a Charter world, and as the public demands more and better action in the regulatory field. Keep an eye on my future blogs as we trend through the year.
On a final note is a new upcoming addition to this blog as I enter the world of podcasting. I intend to offer a short podcast on sections of the Criminal Code.