The Hart Case: A Long Way From Wray?

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

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

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

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

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

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

 

 

 

 

 

Section 23 – Accessory As A Mode of Participation: Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous episodes we discussed the party sections of the Criminal Code, a mode of participating in a crime as a participant who is not the main offender but assists the main offender in the commission of a crime. An accused can also participate in a crime as an accessory after the fact under section 23 of the Code. This is not a party section as the accused is not participating in the commission of the actual offence but is assisting an offender after the offence has been committed. This assistance, however, takes on a very specific form. Additionally, it should be noted that as the accused under this section is not participating in the main offence, the punishment for being found an accessory after the fact is less than the punishment of participating in the actual offence pursuant to s. 463 of the Code.

Section 23 reads as follows:

23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.

It should first be noted that in the present section is a reference to subsection 2, which was repealed in 2000. The section also initially contained a further subsection, which was also repealed at an earlier time. Both of these original subsections provided exemptions to the section as a result of marriage. You may recall an earlier podcast wherein we discussed section 18, which also originally contained similar exemptions. In that podcast, I refer to s. 18 as an addendum to the s. 17 compulsion by threats or duress section. Presently, s. 18 clarifies that duress cannot be presumed merely on the basis that the offence was committed in the presence of a spouse. Turning to the original iteration of section 23, what was in the original 1892 Code as section 63, is very similar in essentials to section 23(1) but the additional subsections exempted a married couple from the effects of the section. Thus, under subsection 2 a spouse could not be charged as an accessory after the fact by assisting the other spouse. Further, under subsection 3, no “married woman” could be charged with being an accessory by assisting, on the direction and authority of her husband, another offender or her husband. It was only in the mid-1970s that the Statute Law (Status of Women) Amendment Act removed this subsection 3, which was clearly based on stereotypical presumptions that a husband has certain authoritative “rights” over his wife. At the time, this amending legislation was hailed as a huge step toward gender equality as it was created in response to the recommendations from the 1970 Royal Commission on the Status of Women. Subsection 2, however, which may be viewed as a more gender-neutral exemption, stayed in the Code until 2000 when the amendments found in the Modernization of Benefits and Obligations Act removed the subsection exemption.

What is left of the section is, as already mentioned, quite specific. The actus reus requires the accused to “receive, comfort, or assist” a person who has committed a crime. Although “assist” and “comfort” have specific meanings, the addition of the word “receive,” which is quite broad in aspect, captures a wide range of activity. However, the accused must “receive” for a specified purpose as part of the mens rea of the section. Returning to the actus reus, the Supreme Court of Canada in the Morris case has found that the section requires more than a mere failure to advise the authorities of an offender’s whereabouts. This position is consistent with the traditional common law reluctance to punish omissions and failures. However, advising an offender that the police have the offender’s name and licence plate number may be enough to fulfill the prohibited act requirements. Furthermore, an accused can be convicted of being an accessory even if the offender assisted is not convicted of offence from which he or she was fleeing. Also, due to the amendments repealing subsection 2 and 3, an accused can be an accessory even if they helped a spouse or his or her child.

The mens rea requirements require a high level of subjective mens rea. The accused must have subjective knowledge that the person being assisted has been a party to or has committed an offence. Also, the assistance, comforting or receiving of the fugitive must be for the specific purpose of assisting the fugitive’s escape from the authorities. As a result, proof that the accused was reckless is not enough. The Crown must prove subjective knowledge or deemed knowledge through the doctrine of willful blindness. Therefore, it is not enough for a finding of accessory that the acts of assistance have the effect of helping a person escape the law. Nor is it enough that the acts were undertaken for the purpose of not being suspected of the crime itself. It is therefore difficult to prove an accused participated as an accessory after the fact. As a result, the police tend to charge an offender with other more easily proven offences such as obstruct justice under s.139 or harbouring a suspected terrorist under s. 83.23

Episode 27 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 23 - Accessory After the Fact

Sections 22.1 & 22.2 – When Corporations Are Criminal: Episode 26 of the Ideablawg Podcast on the Criminal Code of Canada

In the early morning hours of May 9, 1992, the small mining village of Plymouth, Nova Scotia witnessed a disaster. The Westray coal mine, which opened only eight months previously, exploded with such ferocity houses shook and windows shattered. In the aftermath, twenty-six miners, working near the end of their shift, perished.  

The mine had a storied history even before it was opened on September 11, 1991. Politics and big business played a large role in the founding of the mine: multi-million dollars worth of Federal and Provincial funds and loans were secured and lucrative agreements with the provincially owned utility company were negotiated. In other words, much was riding on the success of this mine in the heart of Pictou County. So much so that the owners of the mine were eager to portray the mine as a “state of the art” operation even if the realties were very different.  It would be these realities which foretold the tragedy: the Inquiry, headed by Mr. Justice Richards, found the mine was grossly mismanaged, violated numerable safety standards and simply failed to protect the health and safety of its workers. Westray was an “accident” waiting to happen and yet Westray received a safety award a mere eleven days prior to the explosion.

Certainly, Pictou County experienced methane gas explosions before but nothing to match the loss of human life at Westray. This time, something needed to be done. It was clear that the explosion was no mere “accident” but was the inevitable consequence of heedless corporate behaviour. However, out of the whole organization, including the various subsidiaries, two Westray middle managers, who were not even at the mine prior to the disaster, were charged with manslaughter and criminal negligence causing death.  After slowly making their way through court, the charges against the two men were stayed as a result of a Stinchcombe application for a failure to disclose the prosecutorial evidence in a timely manner. In 1997, the Supreme Court of Canada ordered a retrial of the case based on the trial judge’s conduct creating a reasonable apprehension of bias.  The Crown decided not to re-prosecute as there was, in the opinion of the Crown, insufficient evidence to connect the men to the crimes charged. There was also no conclusive evidence to show how or why the methane ignited to cause the explosion. The Crown simply could not prove the men were criminally liable even though the Inquiry report was clear the explosion would not have happened if the corporate body would have followed proper safety measures and if the government had enforced safety regulations.

The question is not how this could have happened but how to ensure that it could not happen again. This is where the story ends but the legislative response begins.

In the last few episodes, we discussed liability and modes of participation: how an individual accused can be criminally responsible for a crime even though he or she was not the principle offender.  The story of Westray extends this theory of participation to corporations and to employer-employee relationships. This legislative story essentially starts on May 9, 1992 but does not come to fruition until June 12, 2003, when the federal government introduced legislation holding corporations criminally responsible for failing to provide a safe workplace. The legislation has three parts, necessitating two categories of amendments to the Code. The first category relates to connecting the corporation to the prohibited conduct. Amending the Code in two areas does this: the first, which concerns us in this podcast, provides the corporate connection to a crime. The second area, which we will discuss further down this Criminal Code road when we come to s. 217.1, provides the legal duty to which corporations must be held. The final category of amendments is the sentencing piece, under s. 718.21, outlining the unique factors to be considered in sentencing a corporation.

Sections 22.1 and 22.2 read as follows:

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority

(i) one of its representatives is a party to the offence, or

(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and

(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.

 

22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;

(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or

(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

Both sections provide a mechanism for an organization to be considered a party to an offence. Section 22.1 outlines the liability in cases of criminal negligence – as would have been the case in the Westray charges of manslaughter and criminal negligence causing death. Please remember that the actual corporate body was not charged in the Westray incident – only those two managers. Section 22.2 outlines liability as a party where the charges are fault based such as fraud or theft.

For negligence based offences a corporation is deemed a party to an offence on the basis of the actions of one or more representatives of the organization, who are acting within the scope of their authority, as long as the senior officer or officers in charge of that aspect of the organization relevant to the offence markedly departs from the standard of care reasonably expected to prevent the representatives or representative from engaging in that prohibited conduct. Similarly under s. 22.2, a corporation would be a party to an offence if a senior officer, with the intent to benefit the corporation, while acting within the scope of their authority, directs other representatives of the corporation to commit the offence or knowing that a representative is or will commit an offence and that officer fails to take reasonable steps to prevent the offence.

As I am sure you have realized these are very complicated sections and it is a difficult way to deem participation but there are reasons for this based on prior case law. Before we come to this I want to highlight some features of these sections for future reference and thought.

First, the sections do not refer to “corporations” but to “organizations.” “Organization” is a defined term under the Criminal Code pursuant to s. 2 and it means:

 a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or

(b) an association of persons that

(i) is created for a common purpose,

(ii) has an operational structure, and

(iii) holds itself out to the public as an association of persons

This definition is extremely broad and under (b) captures really any gathering of people who have come together for a common organized purpose. There is also in the Code the concept of a “criminal organization,” also defined under section 2 and referring to organizations created mainly for a criminal purpose (see s. 467.1) such as a criminal gang or in media nomenclature a biker gang, drug cartel or mafia. So, “organization” would capture both criminal organizations and legitimate organizations, hence the broad definition. Another reason for the broad definition may be the need to ensure an organization cannot “opt out” by tailoring its structure to fall outside of the definition.

Looking back at the sections, although the definition of “organization” is broad, the section operates in very limited circumstances. The sections are very careful to capture only prohibited conduct, which arises out of an individual’s corporate authority and duties. Those criminal actions unconnected to the organization are not relevant. In those circumstances the individual alone would be charged for their actions.

Another limitation in the sections is the distinction between “representatives” of the organization and “senior officer.” Again, looking at the section 2 interpretation section, “representative” means director, partner, employee, member, agent or contractor of the organization and “senior officer” is “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.” The “senior officer” is therefore a specialized representative of the corporation. Thus, the sections are structured around the corporate hierarchy with the senior officers in charge of the representatives, be they director or employee, with the senior officer having an enhanced placement in the organizational structure. To understand why the sections make this distinction and have this requirement, we now must look at the doctrinal dimension of corporate criminal liability.

Traditionally, as criminal law was concerned with intentional or subjective mens rea offences, criminal liability did not attach to the corporation but only to those individual employees who had the required subjective criminal intent. These employees essentially represented the corporation. Thus the “identification theory” was created to attach liability to the corporation but via an actual corporal body in the form of an individual player. This principle, arising from English common law and a 1915 case from the House of Lords provided that the corporation is only liable for what is done by “the directing mind and will of the corp., the very ego and centre of the personality of the corporation.” Case law thus formulated the test to identify the corporation with the senior official who acts as the “directing mind” or “alter ego.” If the directing mind has the requisite fault for the crime, the corporation would be guilty but if not the corporation would be acquitted.  To ensure that the corporation could not “hide behind the corporate veil,” a corporation would still be criminally liable even with no formal delegation of authority to the directing mind, even if the directors were unaware of the actions of the directing mind, and in certain circumstances, even if the corporation expressly prohibited the conduct in question. A corporation, however, would not be liable if the directing mind acted wholly fraudulently and wholly against the interest of the corporation.

Originally the term “directing mind” was defined broadly as in the 1985 SCC Canadian Dredge and Dock case. Due to the size of Canada, there could be, therefore, more than one directing mind could include board of directors, managers or anyone delegated the “governing executive authority” as in regional heads. Since this line of cases, the courts have placed some limits on who is a directing mind. The person must be an officer or manager of a corporation acting in the scope of work duties and responsibilities and must have the authority to “design and supervise the implementation of corporate policy” rather than merely carrying out policy. The problem became that the designers of corporate policy may be so far from the criminal acts that the court cannot find fault with the “directing mind.”

As a result of these weaknesses, critics have called to the end of the “identification theory” in favour of a more individualistic approach. For large multi-national corporations, critics have suggested replacing the theory with liability based on a “corporate culture” which encourages or condones the crime. This is where the new amendments come in as they do go far to reimagining the Identification Theory in favour of a corporate culture aspect. Thus, under section 22.1 a corporation would be guilty of manslaughter if within its organizational structure there was an objective foresight of an unlawful act which could cause bodily harm or if there was a marked departure from the reasonable corporate behaviour.

As an aside, there are further difficulties with section 22.1 on a conceptual basis as it relies upon objective mens rea, which is a marked departure from the standard of care required, and is very different from the traditional criminal law concepts of subjective mens rea. I have discussed in previous blogs (most notably here) the various issues with the importation of objective mens rea into the criminal law through the regulatory field (here wherein I discuss the Costa cruise ship tragedy, and here wherein I discuss laboratory safety and here wherein I discuss the criminalization of prediction -  as in weather and earthquake). It becomes an even wider societal issue as we, as a society, struggle with what kind of behaviour we want to be considered as criminal. This struggle is framed by the special stigma and loss of liberty attached to the criminal law. As a result, only those behaviours we deem egregious should be criminalized. The import of regulatory type behaviour into the criminal law should cause us to pause and question whether these types of behaviour are best addressed in the criminal law as opposed to the regulatory field. Concomitantly, we should be constantly reviewing those crimes presently in the Criminal Code, which no longer reflect societal norms and realities. Similarly, we should question whether the correct response to certain corporate behaviour is the criminal sanction, with its traditional fair trial and due process provisions originally created to protect the individual from the more powerful state. Corporations are not an easy fit into that system and yet certain behaviours, as exemplified by the Westray incident, require that special response of the criminal law.  

Thus, this podcast ends as it started with the story of twenty-six men who died while doing their job. The legacy these men left is found in the Westray memorial found in New Glasgow in Pictou County, in the poem written by a surviving son, and in the legislative amendments, which reflect society’s desire to protect the vulnerable worker through the full force of the criminal law.

 

Episode 26 of the ideablawg Podcast on the Criminal Code of Canada - Sections 22.1 and 22.2 - When Corporations Are Criminal

When Counseling Is A Crime - Section 22: Episode 25 of the Ideablawg Podcasts on the Criminal Code of Canada

Outside of the legal world, people give advice all the time. Friends, neighbours and parents are readily available to give us their point of view and recommendations on everything from how to bake a cake to how to raise our children. But the advice pool does not stop there – just open a newspaper and there is sure to be an advice column or better yet, click on the mouse and there are reams of websites offering assistance, insight and suggestions.

Another descriptor word for advice is counseling – as described in the Merriam-Webster dictionary counseling is the giving of “advice and support” to help people “deal with problems, make important decisions.” Of course the root word is “counsel,” which means as just suggested in the prior sentence but also just happens to be the term used when referring to a lawyer – legal counsel. Presumably then, a lawyer will give “advice and support” on legal matters, steering the client through the legal maze. Again reviewing the dictionary meaning of “counsel,” there is an aspect of “consultation” when one counsels another. Thus, it is an interaction or active process involving a sharing of information and often resulting in a plan of action. In fact, the word “counsel” comes from the Latin word consulere or to consult, consider, or deliberate. It is no coincidence therefore that in ancient Rome, a consul was one of the highest executive positions in the republic.  

So what do we make of a rogue counselor or one who gives, not just bad advice, but advice to commit a criminal offence and an offence is in fact committed? Section 22 of the Criminal Code contemplates this very situation and places such an unscrupulous counselor in the same position as a party to an offence.

 

Section 22 has three subsections and reads as follows:

22(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counseled is a party to that offence, notwithstanding that the offence is committed in a way different from that which was counseled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counseling that the person who counseled knew or ought to have known was likely to be committed in consequence of the counseling.

 (3) For the purposes of this Act, “counsel” includes procure, solicit or incite.

 

There are a number of really interesting points to be made about this section. First, let’s review subsection 1. Not only does this section, as mentioned earlier, deem the counselor as a participant in the actual offence committed but it also attaches criminal liability to the counselor even if the manner in which the actual crime is committed differs from the manner in which the crime was counselled to be committed. An example of this is when Y counsels X to commit a murder by shooting B with a gun but in fact X uses a knife to kill B.  Y is still a party to the murder, even thought the manner of killing is different.

 Second, in 22(2) we see a broadening of the liability. Any person who counsels a crime is a party to every offence the counseled party commits as a result of the counseling as long as the counselor knew or “ought to have known” that such a crime was likely to be committed as a result of the counseling. We will come back to this “knew or ought to have known” concept a little later but this section captures a broader range of conduct. In this situation, if Y counsels X to rob Z of money and X not only robs Z but kills him, then Y may be a s.22 party if Y knew that murder was a likely consequence of his counseling.

Third, in s. 22(3), we have a definition. As you may recall from previous podcasts, definitions are scattered throughout the Code. Some are found in the fairly lengthy definitional or interpretative section 2, some are found at the beginning of a Part and others, like this definition for counsel, is found in the actual section to which it refers. Interestingly, this definition of “counsel” is not the usual definition of “counsel” as found in the dictionary. Indeed, this meaning extends counseling far beyond the usual. To counsel under the section is not merely acting as a consultant or engaging in a discourse wherein advice is given but is much more actively nefarious. 

To “procure, ” as we know appears in the Criminal Code in the context of “procuring” a miscarriage as in section 287 and as in procuring a person to have “illicit sexual intercourse” (I have discussed this term in a previous podcast – Episode 7) or to procure someone to become an inmate of a “common bawdy-house” as in s. 212 (caution – review the newly proposed sections of procurement in Bill C-36 found here). Procure is also used in counterfeit money offence under s.460, extortion by libel in section 302 and procuring a noxious substance under s. 288. Needless to say “procure” does not have the benign aura, which “counsel” seems to have and is, in fact, downright seedy. According to the dictionary, “procure” means to get something through action or effort or to make something available. It is derived from the Latin root procurare and means to take care of. It is a far cry from a Roman Consul.

To “solicit” is again an active word. I need not go to the dictionary meaning for this term. Instead, I will be content with the Supreme Court of Canada definition in the 1978 Hutt case, which struck down the then soliciting for prostitution section of the Code. There, Justice Spence reviewed the meaning of “solicit” and found it required action – a mere smile or inclination of the head was not enough. To “solicit” as a prostitute one must be “pressing and persistent.”

Finally, to “incite” is a volatile word depicting a violent reaction. It means to “stir up” or “urge on.” It too is a word heavily laden with emotion, action, and illegalities.

Now that we are aware of the meaning of counseling in the s. 22 context, let’s return to the mens rea requirement for the section. The fault element for s.22(1) is straightforward: an accused must intentionally counsel another person to commit an offence. In s. 22(2) we have an expanded mens rea requirement as the accused must know or “ought to have known” that the crime committed, even if different from the actual counseled offence, was likely to be committed in consequence of the counseling. The phrase “ought to have known” is not a constitutionally acceptable form of liability for those accused charged with being a party to a subjective liability offence such as murder. In those offences, the Crown must prove that this accused knew the offence committed was a likely consequence of his counseling as per my earlier example.  For objective liability offences, the Crown need only prove that the accused “ought” to have known based upon a reasonable person’s actions in similar circumstances.

Before I leave you with the section, keep in mind that this section only covers counseling to commit an offence where the offence is actually committed. In this section the act of counseling is equated with participation in the crime. There is another section, which we will arrive at, that pertains to when a crime is counseled but is not committed. In the case of s.22, as the criminal acts are complete, the punishment as a counseling party to that crime is the same as the punishment for committing the actual crime. Therefore one who counsels a murder is subject to the penalties for murder upon conviction.

Next week we will consider together two fairly new amendments to the Code – sections 22.1 and 22.2, which deem an organization as a party to an offence, in certain circumstances. 

Episode 25 of the Ideablawg Podcasts on the Criminal Code of Canada - When Counseling is A Crime Under Section 22

Parties Part 2 – Common Intention: Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada

Last episode I introduced the concept of parties in criminal law and we discussed in detail section 21(1) of the Criminal Code, which describes when an accused person becomes a party as an aider or abettor. In this episode, we will look at section 21(2), which is a more general party section relating to the common intention between two or more persons. Caution: do not confuse this section with the inchoate or unfilled crime of conspiracy. They are not the same and in fact a person can be a party to a conspiracy by aiding and abetting the conspirator but we will get to that way down the road when we finally reach section 465.

Section 21(2) reads as follows:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. 

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

“Unlawful purpose” simply means contrary to the Criminal Code. The actus reus is not confined to the specific offence the principal commits and may be any included offence. So, a principal may be convicted of robbery but a party may be acquitted of the robbery but convicted of the lesser-included offence of theft. The same reasoning applies to murder and the lesser-included offence of manslaughter but before we discuss that, let’s discuss mens rea of the section.

Second, is the mens rea requirement. The Crown must prove beyond a reasonable doubt a formation of the common purpose and knowledge that the offence would be a probable consequence of carrying out the unlawful purpose. As there are two categories of mens rea - objective or subjective – the Crown must prove either subjective knowledge, for those offences requiring subjective mens rea, or objective forseeability for those offences requiring objective mens rea.

We have not as yet discussed the difference between these two types of criminal liability. I have written previous blog postings on this issue in The Subjective/Objective Debate Explained and in Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case. I encourage you to review these postings for more details for further explanation but for our purposes, I will give you a fairly brief definition.

The subjective standard requires the Crown to prove, beyond a reasonable doubt, that the accused intended his or her actions while the objective standard requires the Crown to prove, beyond a reasonable doubt, that a reasonable person would have not acted as the accused did in the circumstances of the case. By using a standard of reasonableness as opposed to this particular accused person’s intent, the objective liability is a lower standard of liability and therefore easier for the Crown to prove beyond a reasonable doubt. As a result of the Charter, however, certain crimes must require subjective liability and cannot require objective. Murder is the best example of a purely subjective liability offence. However, the lesser-included offence of manslaughter is considered an objective liability offence, which only requires an objective forseeability of bodily harm.

This difference in mens rea is important for s.21(2) parties. If an accused is charged under the section as a party to a murder, the Crown must prove beyond a reasonable doubt that the accused “knew that the commission of the offence would be a probable consequence of carrying out the common purpose” NOT “ought to have known.” If, however, the accused is considered a party to a manslaughter, then the “ought to have known” phrase applies as it signifies an objective standard.

For punishment purposes, a party faces the same punishment as the principal although a party’s sentence may be lower than that of a principal based on lesser participation in the crime.

Next podcast, we will discuss section 22 and counseling a crime that is committed.

Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 21(2) Common Intention Parties

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

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

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

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

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

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

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

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

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

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

         (a) actually commits it;

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

The second type of party is as follows:

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

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

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

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

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

(b) abets any person in committing it.

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

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

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

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

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

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

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

 

 

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

Section 20 – On Holiday: Episode 22 of the Ideablawg Podcasts on the Criminal Code of Canada

Section 20 is another procedural housekeeping section found under the General Part I section of the Criminal Code. The section validates certain Criminal Code documents issued, executed or entered into on a holiday and reads as follows:

A warrant or summons that is authorized by this Act or an appearance notice, promise to appear, undertaking or recognizance issued, given or entered into in accordance with Part XVI, XXI or XXVII may be issued, executed, given or entered into, as the case may be, on a holiday.

The term “holiday” is not defined in the Criminal Code but is defined in the Federal Interpretation Act under section 35 and includes those non-juridical days in which the courts are closed such as Sunday, Easter Monday and even “any day appointed by proclamation to be observed as a day of general prayer or mourning or day of public rejoicing or thanksgiving.” The definition also includes provincial public holidays and civic holidays.

In terms of the Interpretation Act, a holiday is significant in the computation of time limits. Many legal actions must be taken within a certain period of time to be valid. If such a time limited action is not taken within the proscribed period of time, the action may be statute barred. In those circumstances, the action would be considered legally “dead.” There are, however, some time limits, which can be extended by the Court or even reinstituted in certain circumstances. In any event, a lawyer does not want to miss any time sensitive dates and therefore the calculation of when a matter or document is due is of utmost importance. Section 26 of the Interpretation Act deals with the possibility of such a time limit expiring or falling on a holiday. If that occurs, the matter is considered properly done “on the day next following that is not a holiday.”

However, in the case of the Criminal Code section the concern is less with a time-limited action and more with the issuance, execution, service, and entrance into of particular Code documents on a holiday. In those instances, section 20 preserves the authority and jurisdiction of those documents, including warrants, summons, and appearance notices. Thus, any act done on a holiday in relation to these Criminal Code documents as listed is valid, thus ensuring that those documents also remain valid. No argument can then later be made that the court has no jurisdiction over an accused person who is brought to court under the auspices of a document issued, executed or served on a holiday. Furthermore, no argument can be made that a release from custody is invalid merely because the release documents were issued and entered into on a holiday.

In terms of the history of the section, section 20 was first enacted in the 1892 Code as section 564(3) but only referred to the issuance and execution of warrants on Sunday or a statutory holiday. In the 1953-54 amendments, the authority of the section was broadened and the newly enacted section 20 applied to a warrant or summons. In 1959 (2) was added and validated any bail order made on a Sunday. This is an important addition, as an accused person who is arrested and not released by the police must be brought before a justice for a judicial interim (bail) hearing within 24 hours, if a justice is so available, in accordance with section 503.

In Alberta, for example, the province offers 24-hour bail hearings and therefore, a person may be ordered released on a holiday. This possibility was further taken into account when section 20 was refined by the Bail Reform Act in 1970, which added the further forms of release, such as an undertaking, appearance notice, promise to appear and recognizance, as listed in the present section.

 

 

 

Section 20 - On Holiday: Episode 22 of the Criminal Code of Canada

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Making A Split-Decision In The Supreme Court of Canada

Last month the Supreme Court of Canada released their statistics covering the last decade of decisions. The graphs make interesting reading if you want to know how long it takes for decisions to be rendered or which provinces send the most appeals. If those issues are not at the top of your must-know list, the graph on the number of unanimous decisions versus split decisions may be the graph to pique your interest. The lowest percentage of split decisions in a given year was in 2006, where 20% of the cases heard resulted in a dissenting decision. The highest percentage of dissenting decisions occurred in 2007 with 38% of the cases. Last year, 32% of the cases produced dissents.

What could have made these statistics even more enticing would be a break down on who sits in dissent most often and why. Are there thematic connections? Well, of course there are: a justice dissenting on a specific issue would not be expected to change his or her mind if the same or even similar issue arises. However, change does occur, as we know when reviewing the decade of cases from the 1990s on the mens rea requirements for criminal negligence. This change or shift in the court’s decision-making is appropriate and welcome: we want our courts to be reflective of societal fundamental values and this ability for change in legal principles permits this. We also want our jurists to be open to this change, in a principled way, of course. So, analyzing SCC decisions is a way to track change and to better understand the court’s position or change in position on any given issue.

Instead of waiting another decade for these interesting numerical tidbits, I crunched the criminal law numbers for this year. From January to mid-March there have been 13 criminal cases in which written decisions were rendered. Out of the 13 cases, nine of the cases resulted in unanimous decisions. Quite frankly these unanimous decisions are very short and merely the Court agreeing with the lower level appeal courts. Four cases, however, were split decisions. Roughly, 30.7% of the cases are therefore split or dissent decisions. This percentage is fairly consistent with last year.

 

Now, let’s move away from the empirical side and look at these four decisions for meaning. What kind of split decisions are these?

I have spoken about the Babos case in a previous blog entitled When Dissent In The Supreme Court Matters. This type of split decision, where there is only one Justice in dissent, signifies a fundamental difference in opinion between the majority written by Justice Moldaver, on behalf of the five other justices on the panel, and the lone dissenter, Justice Abella. As such, the dissent is heartfelt and invokes value-laden terms such as the “exceptional assault on the public’s sense of justice” in the face of “egregious state conduct.” Justice Abella, with her background in human rights, is speaking out in a case where her dissent may not really matter in legal principle terms but is a matter with which she disagrees “on principle.” I would call this a “moral/ethical” decision.

The MacDonald case is more benign. It is a “true application” decision. The disagreement does not involve a direct disagreement on the issue at hand but a disagreement on the true or correct application of previously decided legal principles. Thus, the dissent written by Justice Moldaver and Justice Wagner with Justice Rothstein concurring takes umbrage with the majority’s application or misapplication of the Mann case, decided a decade earlier, on the reasonableness of protective police searches. Ironically, Justice LeBel, who wrote the majority decision, was a member of the majority Mann decision. The dissent does not fail to appreciate this irony when they write:

The majority in this case purports to apply Mann.  Respectfully, however, it does not.  Instead, it renders Mann redundant, depriving police officers of the limited search powers they need to protect themselves and the public in fluid and often unpredictable situations of potential danger.

Such a case leaves the legal profession wondering if the Court can’t apply its own case properly, who can? Keep an eye on how this decision, which did not cause the flurry of attention in the legal profession it should have, will affect trial matters in the lower courts.

In Sekhon, the court considered the admissibility of a police officer’s “expert” evidence on drug couriers pursuant to the Mohan criteria. Although, both the majority decision, written by Justice Moldaver, and the dissent, written by Justice LeBel (notice how quickly the tables turn in the SCC in terms of who is in the dissent and who is in the majority!), agree that the evidence was inadmissible, the differences come in the application of s. 686(1)(b)(iii) and whether the appeal should be dismissed as there was no substantial wrong or miscarriage of justice. Again, both the majority and dissent agree on the basics: that the admission of the evidence was not a trivial error. However, in Justice Moldaver’s view the evidence of guilt was overwhelming and therefore it is within the public’s interest not to send the matter back to trial considering the costs to the criminal justice system. Justice LeBel agreed “that ordering a new trial places demands on judicial resources,” however, “this cannot override the appellant’s right to a fair trial based solely on admissible evidence.” In Justice LeBel’s view, the inadmissible evidence went to the very issue before the court – the guilt or innocence of the accused. This kind of decision is the “tug of war” decision.

Finally, the Hutchinson case is the “throw-back” decision. What did we say in Mabior again? While this case does not re-litigate the issues, as Mabior was a unanimous decision written by Chief Justice McLachlin, it does build upon some of the key pronouncements in that case. Thus, in Hutchinson, the majority, written by Chief Justice McLachlin and Justice Cromwell, agree that sexual assault offences protect sexual autonomy but not absolutely as the “blunt instrument of the criminal law” must be used with “appropriate restraint.” On the other hand, the dissent written by Justice Moldaver and Justice Abella view the protection of the sexual integrity of a person, as the controlling issue in the meaning of consent, within the broader context of public policy. Interesting to see the majority speak of traditional criminal law principles in the context of offences, which, for public policy reasons, are the least traditional criminal law offences in the Code. Clearly, there is much more to be said on the issue and a further “throw-back’ decision would not be unlikely.

So, there is a lot to be said about the court’s decisions over and beyond the simple statistical graphs we review every ten years. I wonder what the next few weeks will tell us? 

Section 16: The Defence of Mental Disorder - Episode 18 of the Ideablawg Podcasts on the Criminal Code of Canada

Section 16 describes the defence we now know as mental disorder but which we previously called the insanity defence. It is an incapacity defence, meaning that if successful the accused person is found to be incapable of forming the requisite intent for the crime. Thus, the accused could not even formulate the malicious intent required to commit the crime and is therefore absolved of criminal responsibility. The insanity defence is from English common law; specifically the 1843 British House of Lords Daniel M’Naghten case and thereafter the insanity defence became known as the M’Naghten Rule. This rule was codified into our Criminal Code from the Code’s inception.

In the 1892 Code, the defence was found under s.11. To read the section is a lesson in now inappropriate language as the section absolves those “labouring under natural imbecility” or disease of the mind. Other than this, the section does read very similarly to the present section 16 as a person “labouring” or “suffering,” as we say now, is exempt from criminal responsible if that disease or disorder rendered the person “incapable of appreciating the nature and quality” of his or her actions. However under the 1892 section the accused must also be incapable “of knowing that that the act or omission is wrong.” Let’s quickly look at the present section 16(1) for comparison:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Our present defence requires that the person suffering from a mental disorder must be “incapable of appreciating the nature and quality of the act or omission” or “knowing it was wrong” and not and “knowing it was wrong” as in 1892 version.

The balance of the subsections under the 1892 section 11 is as follows:

2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things, which, if it existed, would justify or excuse his act or omission.

3. Every one shall be presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.

Subsection 2 from the 1892 insanity section qualifies subsection 1 by providing an exception. A person may be “labouring under natural imbecility or a disease of the mind” but if they suffer from specific delusions and are otherwise sane, they cannot use the insanity defence unless those delusions “caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.” Subsection 3 indicates that everyone is presumed sane “until the contrary is proven.” Once an accused is found NCR or not criminally responsible, the person would be held in detention until the “pleasure” of the Lieutenant Governor. This “pleasure” had no time limitation. Although, I will not discuss this here, this indeterminacy was changed in later amendments.

The 1892 version of the defence continued until the 1953-54 amendments at which point the section was re-enacted as s. 16 but this version, again, is quite different from what we have today. The revised section reads very much like the original version except that it changes the “and” “knowing that such act or omission is wrong” to “or.”

In 1975, the Law Reform Commission of Canada, as it then was (it was disbanded in 1993 and re-enacted as the Law Commission of Canada in 1996 but then had its budget cut in 2006 and was closed down), published Working Paper #14 on “The Criminal Process and Mental Disorder.” The significant commissioners at the time were two soon to be Supreme Court of Canada Justices – Antonio Lamer (Vice-Chair and later to be Chief Justice of the SCC) and Gerard La Forest (commissioner) and the Chair, E. Patrick Hartt, who became a Justice of the High Court of Ontario in 1996 and retired in 2001. For more information on the fascinating history of Canada’s law reform agencies, I recommend reading Gavin Murphy’s paper that can be accessed here.

In any event, this Working Paper, although not partially acted upon until the 1991 amendments (which were done in response to the constitutional striking down of the old sections by the Supreme Court of Canada), suggested various fundamental changes to the insanity defence and the procedures surrounding it. As a result, it is with some irony that the Paper opens with the words “It [the Paper] examines many of the important but sometimes neglected problems of mental disorder in the criminal process.” It seems the issue was even further neglected legislatively for a further sixteen years.

However, there was some groundwork done in the intervening time. The government, in 1982, through the Department of Justice, started the Mental Disorder Project as part of a comprehensive review of the criminal process by provincial and federal Minister of Justice officials. In 1983, a discussion paper was published and again the procedural difficulties and inherent unfairness in the system were discussed. Additionally, with the advent of the Charter, the system’s constitutional compliance was questioned. A full report was eventually tabled in 1985 and a draft Bill was introduced in 1986 by the then Minister of Justice John Crosby. The Bill was still under scrutiny when in 1991, the Supreme Court of Canada found the insanity rules and some of the Criminal Code sections unconstitutional in the Swain case. It should be noted that the then Chief Justice Lamer together with Justice Cory and Justice Sopinka wrote what would be the majority decision. Justice La Forest concurred with Justice Gonthier, who agreed substantially with Lamer CJ’s conclusion.

Thus we have the 1991 amendments under which we practice today. Although the new amendments have not anticipated all issues, certainly section 16 is a much better and fairer section than the previous iteration.

The present version retains the presumption of sanity but also clarifies the burden of proof required to overcome the presumption. It must be noted that either the Crown prosecutor or the defence may raise the issue of mental disorder. If this occurs the trier of fact must be satisfied on the civil standard of balance of probabilities that the presumption of sanity does not apply. There is no exception, in the present s. 16, for specific delusions. The balance of the present section 16 (2) and (3) is as follows:

Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

 Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

Although section 16 sets out the defence of mental disorder, the presumption of sanity and the burden of proof, it is Part XX.1 of the Criminal Code, entitled Mental Disorders, which sets out the procedure to be followed in considering the defence. It is a lengthy Part and thus the defence of mental disorder is complex and time consuming requiring often-competing experts and the application of circuitous special procedures. A full discussion on this Part will come when we discuss sections 672.1 to 672.9, much further down this Criminal Code journey.

One last comment on the recent controversial nature of this issue, particularly with the finding that Vince Li, who beheaded a passenger on a bus, was found not criminally responsible due to a mental disorder and was sent to a psychiatric institution for treatment. Just recently Li’s terms of segregation at the hospital were relaxed by the Criminal Code Review Board of Manitoba to permit Li to leave the hospital unescorted. This relaxation has resulted in a call to tighten once again the consequences of a finding of mental disorder.

The Federal Government has been most vocal in wanting changes and introduced last year a Bill C-54 to amend the Code to include strict restrictions on a person found mentally disordered under s.16. Critics of the Bill suggest that the further stigmatizing of the mentally ill will not “make society safer.” The Bill received its First Reading in the Senate in June of 2013. Read the presenting speech made by the original sponsor of the Bill, the then Justice Minister Rob Nicholson, as well as the response speeches here. Read also the article by the Canadian Psychiatric Association on the “fundamental flaws” in the new proposal.

It should also be noted that in a recent legal conference on mental disorder and the criminal justice system, questions were raised on the constitutionality of the proposed new amendments. Although, section 16 has come a long way from M’Naghten and the 1892 Code, the future of criminal responsibility and mental disorder is still unsettled and may only be determined, once again, by court intervention.  

 

Section 16 - The Defence of Mental Disorder: Episode 18 of the Ideablawg Podcasts on the Criminal Code of Canada

Section 15 – De Facto Laws, Criminal Responsibility and War Crimes:Episode 17 of the Ideablawg Podcast

During the Nuremberg trials, many Nazis tried to exculpate themselves by suggesting they were only following superior orders. This was not a valid defence according to the Charter of the International Tribunal under article 8. However, it was a mitigating factor in determining punishment. If the defendant, however, was the superior, according to article 7, the de facto defence was also not available but neither was it to be considered in mitigation. In Canada, prior to the war, obedience to the laws made at the time was a bar to conviction pursuant to English common law and as codified under section 15 of the Criminal Code. However, after the war, in order to conform to international conventions and to ensure the prosecution of war criminals, the Criminal Code was amended to include an exception for war crimes. When the Crimes Against Humanity and War Crimes Act was enacted in Canada in the year 2000 the Code was again amended and the exception was moved from the Code to the new Act under sections 13 and 14.

Section 15 of the Code presently reads as follows:

No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.

 An equivalent to this section has been in the Code since its inception but with different wording. Until the section was re-enacted as s.15 in the 1953-1954 Code amendments, the section “protected” a person from “criminal responsibility” as opposed to barring conviction.

In one of the oldest cases on the issue, the 1911 case of Kokoliadis v. Kennedy from the Quebec Superior Court, Justice Davidson considered to what extent a person was protected from criminal responsibility under the old section. In the case, Justice Davidson turned to the English common law for explanation and determined that laws as an expression of the “will of the legislature” “protects all who obey it and justifies all who do what it authorizes.” Furthermore, the law in question need only be made by persons with de facto or in fact authority, not necessarily legal authority. Thus, even if the authority is ultimately found to be ultra vires under the Constitution Act, the person obeying this law is still within his or her rights. Similarly, when a person is faced with two conflicting laws from two levels of government, he or she cannot be convicted of choosing to follow one over the other.

The purpose of the de facto doctrine, according to case law, “is to preserve law and order and the authority of the government” and “to protect the rule of law.” According to Albert Constantineau, a French-Canadian jurist writing in 1910 on this subject, without this doctrine “insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy.”

For obvious reasons, this de facto doctrine was not applied at the Nuremberg trials and was specifically not accepted at “The Justice Trial,” wherein members of the Reich Ministry of Justice, including the law courts, were tried for their part in upholding Nazi laws.

The applicability and constitutionality of the combined effect of section 15 and the exception to it was at issue in the Supreme Court of Canada Finta case. Both the majority decision written by Mr. Justice Cory and the dissent (in part) written by Mr. Justice La Forest delve extensively into the defence of obedience to superior orders. Both decisions found that the exception to s.15 was not unconstitutional.  In his dissenting reasons, Justice La Forest pointed out that s. 15 was more generous than international law, as we already noted in discussing the International Tribunal Charter. However, the defence under s.15 was available under the military law of other nations and therefore section 15 not only upheld the rule of law as submitted by Constantineau, but also acknowledged the realities of being a member of the military or police force. In La Forest’s view the defence of obedience to superior orders could provide a valid defence “unless the act is so outrageous as to be manifestly unlawful” as in the case of the Nazi atrocities.

When would an order be “manifestly unlawful?” When, according to Justice Cory writing for the majority, “it offends the conscience of every reasonable, right-thinking person” and is “obviously and flagrantly wrong.” According to Justice Cory, if the exception to s. 15 did not exist and obedience to de facto law was permitted in all scenarios “not even the most despotic tyrant, the author and enforcer of the most insidious laws against humanity, could be convicted of crimes committed under his regime.”

Harkening back to Constantineau’s concern that without section 15 chaos would ensue, we can see the tension between upholding the rule of law and the consequences of so doing it. Chaos may reign in not following de facto laws but surely in some situations death will reign in following them. However, in the situation envisioned by Justice Cory and unfortunately realized in our recent past, this conflict resolves itself in favour of using the criminal law as a reflection of society’s fundamental values and the societal abhorrence we feel toward crimes against humanity.

Although we like to believe the age we live in is the most peaceful and civilized, every day as we flip through the news, either digital or in print, we see the fallacy of this belief. Criminal law in Canada is built upon traditions and our Code is no exception but in this case, thankfully, there are exceptions to the rule.

 

 

 

Episode 17 of the Ideablawg Podcast on the Criminal Code of Canada: Section 15 - de facto Laws, Criminal responsibility and War Crimes

When Dissent In the Supreme Court of Canada Matters

Have you ever wondered about the significance of a dissenting opinion in the Supreme Court of Canada? To use one of their favoured terms, dissenting decisions may be signifiers of “incremental change.” Overtime, however, these dissenting opinions may become the majority decision. Certainly, some of Chief Justice McLachlin’s dissents are an example of this – most recently in the air of reality line of cases – see my previous blog on the issue here. Of course, sometimes a dissenting opinion does not signify change but simply signifies dissent – a vocalization of a differing viewpoint or to use probably a trite yet apt Robert Frost analogy “the road not taken.”  The recent Supreme Court of Canada Babos case on prosecutorial misconduct is an example of when dissent for dissent's sake matters.

Justice Abella’s dissent on the issue makes for powerful reading, invoking the sanctity of the justice system and the high standard we expect from our quasi-judicial prosecutors, who stand on behalf of the state as upholders of society’s fundamental values. Even in the adversarial system, the duties of the Crown prosecutor transcend the arena of dispute, as they must defend the law in the pursuit of justice. Justice does not have a stake in the ultimate outcome of guilt or innocence but does impact how the ultimate outcome is achieved.

This role is, as suggested by Madame Justice Abella, timeless and does not crystallize at particular points of a prosecution but must permeate every action or inaction of the Crown.  As she so eloquently said, “Time is not a legal remedy for a fundamental breach of the Crown’s role, and cannot retroactively cure intolerable state conduct.”  Difficult balancing must be done to fulfill this duty but it is of utmost importance in the viability and credibility of the criminal justice system.

So I encourage you to read the dissent and envision an alternate view where “an exceptional assault on the public’s sense of justice” is deemed worthy of dissent.

Section 14 – Consenting To Death: Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada

Although we have not traversed very far into the Criminal Code, we have already discussed some fundamental principles of English common law, including common law defences. Codification, as we have seen, does not usually change these traditional concepts but crystallizes the customary into the written rule. Even with codification, common law has informed the interpretation and implementation of the Code sections through the application of case law. Later, we will see how codification can and has radically changed common law, but the section we are now discussing, section 14 of the Criminal Code, is a reiteration of the common law rule – that a person cannot consent to their own death. The corollary to that presumption is that even if a victim does consent, an accused person cannot use this consent as a defence and is still legally liable for his or her actions. The section reads as follows:

No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Let’s take a deeper look at what this section is saying and what it is not saying. First, the section is actually speaking to us all – not just to an accused person – and acts as a warning: “no person is entitled to consent to have death inflicted.” But why this wording? Why doesn’t the section simply say, “no person shall consent to death?” By putting in the word “entitled,” I submit that not only can we not consent to our own death but we also have no right to do so. This of course opens up a much larger debate on who has ownership over an individual’s life – is it the person or is it the state as the Code seems to suggest? Or is it a combination of the two?

This debate continues, as the Supreme Court of Canada will reopen the issue of the right of a person to die when they consider the constitutionality of the assisted suicide section 241 of the Code in the British Columbia Carter case. I have written previous blogs on the issue: Whose Life Is This Anyway? The Canadian “Right To Die” Debate Part One – Definitions and A Story and Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada. We will further discuss this when we come to the relevant section in the Code but the issue of whether or not society has an interest in the continuance of our individual lives is a weighty one. The difficulty is we do want society to take responsibility for ensuring the necessities of life such as food, clothing and education – all of which by the way have been subject to great constitutional debate. But we do not want society directing the manner in which we live our lives such as our sexual orientation and our decisions around childbirth. Of course, all of these issues are predicated on the decision to live, not on the decision to die. The question “whose life is this anyway?” does not generate an easy or static answer.

The other part of section 14 is a warning to the offender - the victim’s consent cannot be used to relieve the accused of the criminal responsibility for causing the victim’s death. Again, this argument may be raised in an assisted suicide situation but it could also arise in other scenarios such as sporting events. Although we no longer live in a world where a fight to the death is an acceptable spectacle (do we?) this does not mean the issue is dead – excuse my pun. Although dueling under section 71 is a Criminal Code offence, there are contests where death may not be the object but serious bodily harm certainly is and death may be probable if you engage in the “sport” enough times – prize fighting comes to mind. Certainly, in Canada, “blood” sports are either prohibited or highly regulated as in section 83 of the Criminal Code. Recently, the Canadian government changed the meaning of a “prize fight” under this section to permit mixed martial arts events such as the Ultimate Fighting Championships, a highly popular form of entertainment.

Still when death does occur during the course of a sporting event there may be criminal code repercussions. An infamous example is the Todd Bertuzzi – Steve Moore case, when well –known defence man Todd Bertuzzi punched Moore from behind during a hockey game in Vancouver. Moore suffered serious injuries and Bertuzzi was not charged with the more serious criminal negligence, but with the lesser offence of assault causing bodily harm, which is an infliction of bodily harm without consent. Bertuzzi entered a plea of guilty and received a conditional discharge, a lesser punishment available under the Code.  

This brings us to the related consideration of whether one can consent to bodily harm. A much more difficult issue considering many contact sports involve serious injury. It also brings to mind the fistfight or the let’s-take-this outside kind of attitude that is not unknown in bars across the country. Interestingly, this is where common law and codified law intersects. Although we know from section 8(3) that common law defences are available, this seemingly straightforward exception becomes complicated when consent, as in an assault, form an essential element of an offence.

In determining whether or not consent exists as per the Code, how far can a court rely on and apply the common law principles? This was the issue in the Supreme Court of Canada Jobidon case, wherein the accused stepped out of a bar with the victim and engaged in a seemingly consensual fistfight, which left the victim dead and the accused facing a manslaughter charge. Jobidon was acquitted at trial on the basis of the consent but the Ontario Court of Appeal reversed the decision. The majority judgment in the Supreme Court of Canada, written by Mr. Justice Gonthier, found that the common law conception of consent was relevant to whether or not the victim’s consent was applicable in the circumstances. To that end, Justice Gonthier stated at page 738:

If s. 8(3) and its interaction with the common law can be used to develop entirely new defences not inconsistent with the Code, it surely authorizes the courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.  That sort of language cannot be found in the Code.  As such, the common law legitimately serves in this appeal as an archive in which one may locate situations or forms of conduct to which the law will not allow a person to consent.

In accordance with these comments, the SCC took an expansive view of section 8(3) and did not feel encumbered by the argument that consent forms part of the actus reus or prohibited conduct of an offence. In this instance, the common law restricted consent in fistfights, where there was bodily harm, for reasons of public policy – to ensure good order and appropriate behaviors. The Court however was very clear to restrict this decision to circumstances, which “vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.”  This was an important caveat for the court as:

Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game.  Unlike fistfights, sporting activities and games usually have a significant social value; they are worthwhile. 

Indeed, this comment is puzzling. Although sports such as hockey and football are for some worthwhile pursuits, the issue does not lie in the sports themselves but in the injuries occasioned in these sports. Are these injuries equally worthwhile should be the question. The answer lies in the rules of the sport and certainly Bertuzzi’s criminal responsibility depended upon going outside the rules or norms of the sport.  Although only a certain level and type of harm will be tolerated, this tolerance, as it bends and flows, will have an impact on the future of acceptable violence in Canadian society and in Canadian sport.

Episode 16 of the Ideablawg Podcasts on the Criminal Code of Canada; Section 14 - Consenting To Death

Age As A Defence – Section 13: Episode 15 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous podcasts I have spoken of defences, a legal construct which an accused person can use in answer to the charge. There are two essential elements of a crime: the actus reus or prohibited act, which is the illegal behaviour and the mens rea or the guilty mind, which is the fault requirement. Some defences, negate the actus reus or prohibited act requirement of a crime, meaning that the accused cannot be convicted of the crime as the prohibited act was not committed by the accused voluntarily. This would occur, for example, in the following scenario: a person was driving his car with the window partially open and a wasp flew into the car, attacking the driver, and causing him to drive erratically. In that instance, a charge of dangerous driving under s.249 of the Code would fail as the prohibited act or bad driving was involuntary. The accused did not choose to drive in such as manner but external circumstances, beyond the accused person’s control, caused him to do so.

Another category of defences, known as justifications and excuses, are available even though the accused could be found guilty of the crime. If such a defence is successful, the accused is acquitted of the crime as he or she may be justified in committing the crime or may be excused from responsibility. In Episode 11, I explain these defences more thoroughly and I discuss the defence of duress, an example of the defence of excuse, in my previous blog here. Although these defences, if accepted, typically result in a full acquittal, the exception is the defence of provocation, a form of justification, which is only a partial defence, reducing murder to manslaughter, per s.232 of the Criminal Code. See my previous blog on the issue.

There are also defences, which negate the mens rea or the criminal intention required for a crime. Mistake of fact is such a defence where the accused believes in a set of facts, which, if true, would exonerate the accused. In those circumstances, the accused would not have the intention required to commit the offence.

Still another category of defences, which also relates to the mens rea of an offence, is where the accused is incapable of forming the intent required. Incapacity is difficult to use as a defence and tends to require expert medical evidence to establish the incapacity such as in the defence of intoxication (a common law defence, which has been severely limited by the Code under section 33.1) and mental disorder under s. 16 (or insanity as it was originally called). Another form of incapacity, which does not require medical evidence, is incapacity based on age. This is where section 13 comes into play – in fact, child’s play – as the section reads:

No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.

Interestingly, the word “child” is not used in the actual section, although it is used in the descriptive heading for the section, Child Under Twelve. As there is no statute of limitation on criminal offences, meaning that a person is still liable for a crime committed years previously, not using the descriptive word “child” in the actual section does make sense. Also note that although the section states a person under twelve years of age cannot be convicted of an offence, he or she may be charged with an offence. Again, if you have been listening/reading my previous podcasts, the Code seems to be focused on the “end game” of conviction and punishment.

Furthermore, this type of incapacity differs from intoxication and mental disorder as the simple proof of age, which is easily done, bars conviction. Intoxication and mental disorder as a defence, not only may require medical evidence but are complex defences, and in the case of mental disorder, has a complex procedure in the Criminal Code.  Certainly, in the case of mental disorder, an alternate mental health system is available to take over when the criminal law cannot.

So why is there such a limitation and why is it set at under twelve? Perhaps it is time we do a little historical review to find some answers.

In the 1892 Criminal Code, section 9 prohibited conviction of a person under seven years of age. Traditionally, English common law did not attach responsibility to young children for crimes, as children, like the mentally challenged, could not understand the consequences of their actions and therefore could not be held responsible in criminal court. This was the norm until the advent of the 1980 Young Offenders Act, which replaced the Juvenile Delinquents Act, when the present day age of twelve was substituted for the age of seven. This change in age was supported by psychological and medical research, which showed that the neurological development of a young person was not fully advanced until well into the teens. Thus developed the concept that a person under twelve years of age was incapable of forming the criminal intent. The research on this issue is certainly more complex as I have summarized and I invite you to do your own research on this topic. Needless to say, some academics presently question whether the child is truly incapable of forming an evil intent, although most agree that a child, due to developmental factors, should not be treated the same as an adult. Certainly Canada’s Youth Criminal Justice Act is based on that premise.

Politics has also come into the issue as the Conservative Party in 1999, through a private member’s Bill, attempted to change the age of incapacity to a child under ten years of age. This Bill did not survive but this concept has survived and may be raised yet again by the government particularly as the now Justice Minister, Peter McKay, was the sponsor of that 1999 amendment.

Additional pressure to change the age of incapacity comes from media reports of children under the age of 12 committing crimes, usually murder, both here and in the UK. It should however be noted that in terms of statistical evidence, 61% of the offences committed by young offenders are committed by the oldest offenders between the ages of 16 and 17. I know all of this fails to explain why the age barrier is under twelve as opposed to under eleven or under thirteen. I believe much of this is connected to societal perceptions and expectations, which do change over time.

To be sure, even though the criminal justice system is not engaged when a child under twelve commits a crime, the social service system can and will deem such a child in need of protection and he or she will be taken into the child welfare system. The focus is then on the reason why the child acted inappropriately and focuses on treatment and not punishment. However, the difference between these two concepts tends to become blurred in the eyes of a young person. An example of this in Alberta is the Protection of Children Abusing Drugs Act wherein a child using drugs or alcohol may be taken into a protective “safe house.”

Although the child welfare system may seem to be a kinder and gentler way of dealing with a troubled child, the system is rife with problems such as the power of the state to take children from their biological families and the difficulty of treatment without the fair trial procedures as would be required in the criminal courts. On the other hand, the stigma of a criminal charge and the use of the process-oriented criminal justice system, even if it is supposed to look towards rehabilitation of a young person, tend to provide band-aid solutions, where there are consequences, a bit of treatment, but no long-term solutions.

In the end, the criminal justice system is probably not the answer for a troubled child but the child welfare system may not be either. Perhaps, it is time for us to start thinking of alternative ways, proactive ways, to ensure that all children have the opportunity to engage in play and not crime.

 

 

 

Episode 15 - Section 13 Age As A Defence: The Ideablawg Podcasts on the Criminal Code of Canada

Section 12 – Anyone Want To Play Double Jeopardy?: Episode 14 of the Ideablawg Podcast on the Criminal Code of Canada

Double jeopardy, like the presumption of innocence, is a legal term, which is a familiar part of our social discourse. The phrase is at once a movie, a book (actually multiple books), and even a segment of a game show. The concept, that an accused may not be tried or punished for the same offence more than once, is ancient and runs deep in our “fundamental freedoms” psyche. The Greek orator, paid speech writer, and all-around democrat, Demosthenes in his speech of 355 BCE Against Leptines, reminded the Athenian jury that “the laws forbid the same man to be tried twice on the same issue.”  Roman law later codified this concept when they published The Digests or Pandects of Justinian and referred to the maxim ne bis in idem or “not twice in the same” in Book 48, Title 2, Section 7(2). The maxim eventually was subsumed into English common law, however it was strictly defined and originally applied to those acquitted or convicted of capital offences. See Blackstone Commentaries in Book 4, Chapter 26 for more on the English law equivalent.

Not surprisingly, this restricted concept was handed down to us when we codified our Canadian criminal laws. In the 1892 Criminal Code, section 933 codified the Canadian principle under Proceedings After Conviction pertaining to “Punishments Generally.” As it is very similar to our present version under section 12, I will not reproduce it here but please note that the prohibition against double punishment is not limited to capital crimes. Also note that I referred to the concept as “double punishment” and not “double jeopardy.” To explain this difference, let’s read section 12:

Where an act or omission is an offence under more than one Act of Parliament, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

Immediately, it is clear that this section protects double punishment, not double jeopardy – an accused can therefore be charged and tried for similar offences, but once convicted, the accused cannot be punished more than once. This is much different than the American concept of double jeopardy as found in the Double Jeopardy Clause of the Fifth Amendment, in which a person, who is subject to the same offence, is not to be “twice put in jeopardy of life or limb.” In the American version, therefore, even the risk or danger of being convicted is being protected. The Canadian codification in the Code, like the English principle, does not go as far.

In fact, even our Charter protection under section 11(h), albeit broader than section 12 of the Code, is still not as robust as the American conception.  Section 11(h) of the Charter reads: 

Any person charged with an offence has the right if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

The Charter prohibits double punishment, like section 12 of the Code, but also prohibits retrying an already acquitted accused. It is unsurprising that section 12 of the Code does not refer to acquittals considering its antecedents as a section under the punishment part of the original Code. Also, both of these concepts – not to be convicted or tried twice – come from the common law and, as we learned in a previous podcast, common law defences under section 8(3) are still available. Therefore, does section 12 really need to be under the Criminal Code? Those common law defences are known as autrefois acquit and autrefois convict. Autrefois acquit, meaning previously acquitted, and autrefois convict, meaning previously convicted, are actually referred to in the Criminal Code as “special pleas” under s. 607. Yes, we will eventually discuss this section but much much further down this podcast road.

In any event, autrefois convict has been further refined as it only applies after there has been a complete adjudication on a matter including sentence. Before punishment, pursuant to s. 12 of the Code, an accused who has been tried and convicted of offences arising out of the same transaction, can rely on the case law principle prohibiting multiple convictions from the 1975 SCC R v Kienapple. Thus, an accused charged and convicted of driving with over 80 mgs of alcohol (section 253(1)(b)) and driving while impaired (section 253(1)(a)) arising from the same transaction, will not be punished for both offences but will have one of the charges stayed or “kienappled” as defence lawyers like to call it. As an aside there are a few cases, which have become verbs in the legal nomenclature, such as a case being “askoved” or stayed due to a trial not being heard within a reasonable time pursuant to s. 11(b) of the Charter.

The lesson learned from this podcast and the previous podcast on s. 6 the ersatz “presumption of innocence” found in the Code, is that our societal perspective of law is not really reflected in our Criminal Code. Instead our perspective is coloured by the media, by the American experience, and by our own assumptions of what the law is and what the law is not.

Join me for the next podcast when we discuss section 13 of the Criminal Code.

 

 

Episode 14 of the Ideablawg Podcast on Section 12 of the Criminal Code of Canada

Section 11: The Parallel Universe of Criminal and Civil Law: Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada

Today we will step out of our criminal law comfort zone to talk a little bit about the civil law, in particular how criminal and civil law reside in a parallel universe due to section 11 of the Criminal Code.

To start, let’s discuss how civil law and criminal law differ from one another. First, it should be noted that when I speak of “civil law,” I am using this term generously to refer to the legal system controlling private disputes, particularly where there is harm caused either physically (tort law) or through a breach of contractual obligations. Another definition of “civil law” may be the civil law tradition, which comes from the Continental legal tradition (The Napoleonic Code for instance), and involves codified civil statutes governing society, such as found in Quebec.

As you probably already noticed, the main difference between criminal and civil laws is the type of parties engaged in each of these systems. Civil law is between private individuals, whilst criminal is between the state or the government and an individual, although a corporation can also be charged with a criminal offence. Thus, in criminal law we are concerned with public wrongs and harms against society. As, I have mentioned before, the criminal law underlines society’s fundamental values and is reflective of how we view our society at any given time.

As a result of this differing viewpoint, civil and criminal law employ different legal processes, on occasion differing legal rules, and even a different standard of proof. To reflect the specialness of the criminal law, the burden of proof, which is on the state, is beyond a reasonable doubt, and for the civil world it is proof on a balance of probabilities, which is a lower standard of proof than the criminal one.

The civil law also employs some different types of remedies than the criminal law, although sometimes not. Criminal law remedies are about punishment, with the concomitant ideals of retribution and rehabilitation. Typically, civil remedies are about compensation, to ensure the injured party is recompensed for the harm caused. However, there are occasions where these remedies do meet such us in the criminal law when compensation is ordered or in civil law when punitive damages are assessed. This blurring of the lines between civil and criminal law is best seen in the regulatory field of legislation. For further reading on this issue, My Masters Thesis considered the criminalization of regulatory offences and the use of the civil punitive sanction as an alternative.

Now that we understand the differences between civil and criminal, let’s take a look at section 11 of the Criminal Code to try and figure out what it means and what it is doing in our Criminal Code.

Section 11 is entitled Civil Remedy Not Suspended and reads as follows:

No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.

As an aside, a similar section can be found in the 1892 Criminal Code under s. 534. It is under the General Provisions of procedure section of the Code, while the present section 11 is under the General Part.

On the face, the meaning of the section is fairly clear: a civil action may proceed despite a parallel criminal action. In other words, a person charged with an offence can also face a civil suit for his or her actions and that civil case can continue at the same time as the criminal prosecution. However, as discussed in the last two previous podcasts, as the court retains an inherent jurisdiction over its process, a judge, in exceptional circumstances, can suspend a civil case until the criminal matter concludes. The circumstances for such abeyance would involve the right of the accused to a fair trial and the prejudicial effect of a continuing civil case. It must be emphasized that this power is discretionary and there is no automatic right to stay a civil case until a criminal matter is completed.

Another concern for an accused facing a civil suit is the civil requirement for questioning the parties on the suit. Such responses may later incriminate the accused at the criminal trial. However, there is protection for the accused under s.13 of the Charter, which prohibits the use of such testimony in a criminal proceeding, except in a prosecution for perjury or “for the giving of contradictory evidence.” Therefore, the state cannot advance such incriminatory evidence at the accused’s trial unless the evidence forms the basis of a perjury charge or unless the accused testifies at the criminal trial and his testimony at the criminal trial is contradictory to the previous testimony in the civil proceeding. In that instance, the civil testimony does not go in for the truth of its content but can be used to cross-examine the accused on a prior inconsistent statement. However, under provisions in the Canada Evidence Act, an accused must still answer the questions put to him when questioned in a civil case.

There are cases where the civil trial judge has stayed the civil proceeding when the accused is facing criminal charges in the United States. In that forum, the accused, as a Canadian citizen, would not be entitled to invoke the protection of the Fifth Amendment of the U.S. Constitution and would not be protected by the Canadian laws.

Our final consideration is why is the section in the Code. I suggest the section is in place to reiterate the differences between criminal and civil law. The sections speaks of civil remedies or the outcome of a civil case and also a civil suit’s purpose – to enforce a right of the party, which has been harmed, or unrecognized by the other party’s actions. This enforcement is between these two parties – not between Her Majesty and the accused - therefore the action is in respect of different parties. The harm is a private one, and again does not underline the social values at stake in a criminal case. Finally, the standard of proof is lower in a civil suit and therefore a civil remedy may be ordered even if an accused is ultimately acquitted of the criminal case – see the O.J. Simpson trial as an example of this.  So they are different proceedings, for a different reason, making parallel proceedings possible. Finally, there is a desire that civil matters, like criminal cases, be heard in a timely manner to ensure the integrity of the civil system. Of course, with the caveat that, in matters of justice, the criminal case will prevail.

 

 

 

Episode 13 of the Ideablawg Podcast on the Criminal Code of Canada: Section 11

Section 10 of the Criminal Code – Revisiting The Common Law Contempt of Court: Episode 12 of the Ideablawg Podcast on the Criminal Code of Canada

In the last episode, we discussed how codification of Canadian criminal law replaced the common law by prohibiting common law offences but with the exception for the common law offence of contempt of court. Section 10 continues this conversation by providing a mechanism for appealing this lone common law offence to the applicable provincial appellate court. This is therefore a procedural section to ensure that the common law offence, which sits outside of the Criminal Code, is nevertheless subject to the rules of fundamental justice as found in the Code. As straightforward as this section may be, there are two items of interest to point out. Section 10 (1) and (2) read as follows:

   (1) Where a court, judge, justice or provincial court judge summarily convicts a person for a contempt of court committed in the face of the court and imposes punishment in respect thereof, that person may appeal

(a) from the conviction; or

(b) against the punishment imposed.

(2) Where a court or judge summarily convicts a person for a contempt of court not committed in the face of the court and punishment is imposed in respect thereof, that person may appeal

(a) from the conviction; or

(b) against the punishment imposed.

There are two contrasts in this section: first, subsection 1 speaks of “contempt committed in the face of the court,” while subsection 2 refers to contempt “not committed in the face of the court” and second, subsection 1 applies to a “court, judge, justice or provincial court judge,” while subsection 2 applies to a “court or judge.” So, what do these differences mean?

Let’s work through the second contrast first. In order to understand the different wording, we must look to the definitions of these words. Obviously, subsection (1) is broader than subsection (2) as subsection (1) not only refers to “court” and “judge” as does subsection (2), but it also applies to a “justice or provincial court judge.” As we already know from the beginning of these podcasts, section 2 of the Criminal Code is the general definitional section. According to that section, “justice” is:

justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction;

and

 “provincial court judge” is:

a person appointed or authorized to act by or pursuant to an Act of the legislature of a province, by whatever title that person may be designated, who has the power and authority of two or more justices of the peace and includes the lawful deputy of that person.

“Judge” and “court” are not defined under s. 2 but they are general terms used throughout the Criminal Code. When the Code speaks of a specific level of court, then the specific term such as “provincial court judge” or “judge of a superior court of criminal jurisdiction,” which in Alberta would be the Court of Queen’s Bench, is used, or a specific section is referred to such as “a judge as defined in section 552.” However, once that primary designation is given, the Code may then further refer to the entity as simply a “judge.” So “judge” may be interchangeable with any level of judges, except a justice of the peace, who is referred to as “justice” and never “judge.” I would therefore suggest that the meaning of “judge” depends on the context of the section.

The context for our purposes is supplied by the other difference between these subsections, the concept of contempt committed in the face of the court and contempt not committed in the face of the court. We have, in fact, visited this issue already. You may recall in the previous episode, I discussed the differing jurisdiction between the provincial courts and the superior courts. The provincial court derives its jurisdiction from statute, which is the source of its power. Conversely, the superior courts such as the Court of Queen’s Bench of Alberta have inherent jurisdiction or intrinsic powers outside of statute, conferred through the common law. There is no exact description or even limitation of these inherent powers. Legal scholars have been singularly unable to give an all-encompassing definition of the inherent jurisdiction enjoyed by the superior courts but the procedural jurist Sir Jack Jacobs, Q.C (Senior Master of the Supreme Court – England, who was a visiting professor at Osgoode Hall Law School) comes closest in his 1970 article entitled "The Inherent Jurisdiction of the Court" wherein he mused that:

For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction, which is inherent in a superior court of law is that which enables it to fulfill itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner.

Thus this inherent jurisdiction, which cannot be abrogated by the government, is, I submit, the reason the Criminal Code protects the common law contempt of court process. But it is also the uniqueness of the common law offence of contempt of court, which results in the Code exception. Common law contemptdoes have a Criminal Code equivalent in s. 708 contempt of court. But this equivalency is in name only. Section 708 is specifically limited to a witness who fails to attend or remain in court in order to give evidence. Conversely, the common law offence of contempt of court, although not specifically delineated, can be any act, which interferes “with the due administration or course of justice” as found in the 1983 Alberta Court of Appeal Vermette case,  which was upheld by the SCC. There are, however, different classifications of the common law offence and that is where the concept of contempt in the face of the court and contempt not in the face of the court arise. This is also where the differences between inherent jurisdiction and inferior jurisdiction intersect with the differing kinds of common law contempt.

The SCC Vermette case helps to explain these differences. According to the decision, although the provincial court has some jurisdiction to control its own process through a common law contempt charge, this jurisdiction is limited to contemptuous acts within the four walls of the courtroom. Thus, inappropriate acts committed in the presence of the provincial court judge or “in the face” of the court could form the basis of a common law contempt charge. On the other hand, the superior courts by virtue of their ancient and essential inherent jurisdiction had the additional power to cite an individual for contempt ex facie or not in the face of the court, meaning outside of the presence of the judge. It is important to note however that even for those acts committed outside of the court’s presence, the acts must connect to the court’s process. There is no common law contempt without the court as the aggrieved party.

Looking back to section 10, we can now understand why the section refers to both categories of common law contempt to ensure a mode of appeal for both.

I would like to make one more comment on the section as it relates to a judge “summarily” convicting the accused of the common law offence. This refers to the immediacy of the procedure as the court deals with the matter as soon as the judge cites the person for the contempt. There is no formal arrest and the accused does not follow the usual paths of the criminal justice system. There is no right to a jury trial. For more information on this summary process, see the 2003 SCC Arradi case.

 

Episode 12 of the Ideablawg Podcast on the Criminal Code of Canada: Section 10 - Revisiting Common Law Contempt of Court

A Long Holiday Read On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?: Episode Eleven Of The Ideablawg Podcast (And The Text Version!) On The Criminal Code of Canada

Codification can be a good thing: instead of searching multiple statutes to find the criminal offence for which your client is charged, as an English barrister must do, the Canadian lawyer just flips through the weighty but convenient Criminal Code. To be fair to England, they did try to codify their criminal law. In fact, our codified criminal law comes from that English attempt by Sir James Fitzjames Stephen. I say the English "attempt" as even though we Canadians embraced the codification concept, the English Parliament did not. For more information on the history of the Criminal Code and possible reform, I invite you to read my previous blog on the subject entitled The Criminal Code of Canada: Codification and Reform from February 12, 2012.

Codification can therefore provide much needed certainty of the law. There is no guess work with codification – we know it is a crime because the Code says so. Thus, the concept of ignorance of the law is no excuse from the Latin maxim of ignorantia juris non excusat, is crystallized in a compendium of sections of the Criminal Code and even is codified in it as we will see when we discuss s.19 of the Code.

Alas, however, this same reasoning can lead to the conclusion that codification can also be a bad thing. Firstly, codification leaves little room for interpretation. The Criminal Code, as a really, really, long statute, abides by the rules of statutory interpretation, which guides us on the application and meaning of this statute. According to another Latin maxim of statutory interpretation expressio unius est exclusio alterius or “expression of one is the exclusion of the other,” means that what is not written in the Criminal Code is not part of the Criminal Code. This principle is supported by other statutory interpretation rules such as the  plain meaning rule of statutory interpretation, which advises us that the words used in the Criminal Code mean what they ordinarily mean.

These rules have not gone unchallenged and there are interesting articles discussing those issues. For instance, the rule raises the question as to whether or not there truly is an “ordinary” meaning of a word when considering the differing cultures and perceptions of our multicultural nation.

Besides critics of these statutory interpretation concepts, there are other rules of interpretation, which seem contrary to these “closed book” rules, such as the ability of a court to “read-in” words or phrases to a statute to ensure its constitutional integrity. To be sure courts through the ages have read-in phrases and meanings in certain sections of the Code but they have not actually read-in a whole section. 

Thus, through the effect of codification, the Criminal Code captures and defines our criminal law, leaving very little room, if any, for change, unless Parliament so chooses. In this way the dynamic nature of society is not reflected through our laws. Certainly, however our Charter has added a fluid dimension to the Criminal Code by superimposing societal change, albeit incrementally, onto the written word. Instead of a closed book, the Code seems to be more akin to an e-reader, in which the internet can be accessed, on occasion, to elucidate the reader.

The second problem with codification is the isolation of the criminal law from the English common law tradition, which brings with it a rich and varied criminal law. Using another metaphor, codification is like a tree without its roots as common law is an important source of our criminal law. However, the whole purpose of codification would be defeated by the uncertainty caused by permitting the common law to exist outside of codification. How would an accused then know the charge for which he or she was facing without reference to a specific charge found in the Code if unwritten common law could still form the basis of a charge?

This last objection, to permitting the common law to stand as a system parallel to the Criminal Code, is also reflected in our Charter as a principle of fundamental justice under section 11(a) wherein a person charged with a criminal offence has a right to be informed of the specific offence without delay.

Thankfully, the framers of the Code did think of these issues and so we finally come to the sections which we will discuss in this podcast: sections 8 and 9 of the Criminal Code. But first we will look at section 9, which restricts the common law and ensures Canadian criminal law is consistent with the Charter. Section 9, under the heading Criminal Offences To Be Under Law Of Canada reads as follows:

Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730

(a) of an offence at common law,

(b) of an offence under an Act of Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or

(c) of an offence under an  Act or ordinance in force in any province, territory, or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction, or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

This section is actually an enabling section as it ensures that the Criminal Code has full force and effect in Canada and that no one can be convicted or discharged with an offence other than an offence under the Code. This was needed as prior to codification, the sources of law were varied and included laws of the United Kingdom, laws particular to pre-Confederation governments, and laws arising from common law.

It is interesting to note that the section bars punishment for these offences as opposed to prohibiting a person from being charged for these offences. I would suggest that the word “charged,” as under s. 11 of the Charter, refers to the laying of an Information against an accused person, an action which comes at the beginning of the criminal process as opposed to “conviction,” which comes at the end. Thus, the protection of this section is triggered at the end of the trial process when an accused is found guilty by the trial judge and a conviction is entered. The triggering words are similar to the ersatz (see my previous podcast/blog where I explain why I use this qualifying adjective) presumption of innocence found under section 6 of the Code. In effect then, someone may be arrested, charged, and tried for an offence under either 9(a) or (b) or (c), and even found guilty, but it is the judicial action after the finding of guilt and immediately before a conviction or a discharge is entered, which section 9 prohibits. As in section 6, the focus is on punishment and is unlike the Charter sections on legal rights, which so assiduously protect the accused throughout the criminal process; from detention to arrest to charges to pre-trial custody to trial and then to acquittal or punishment.

Of note, is section 11(g) of the Charter that gives a person charged with a criminal offence the right

not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.

This section seems to parallel section 9 but it may be interpreted as giving a broader protection by using the phrase “not found guilty,” and therefore protects an individual before a finding of guilt is made. After the trial judge makes a finding of guilt, the accused is not convicted as he or she may be discharged under section 730 of the Code. Although a discharge is not a conviction, and therefore the accused does not have a criminal record, it is a “sentence” or punishment under the Code. This does seem to be a question of semantics, yet an interesting one to ponder.

There is, however, an exclusion to this decree as the section permits a court to “impose punishment for contempt of court.” Thus, section 9 preserves the court’s “inherent and essential jurisdiction” to cite and punish someone appearing before it for the common law offence of contempt of court. The purpose of preserving this power, according to Justice McIntyre speaking for the Supreme Court of Canada in the Vermette case, was “necessary, and remains so, to enable the orderly conduct of the court's business and to prevent interference with the court's proceedings.”

However, the jurisdiction of the inferior court or provincial court differed from the inherent powers of the superior courts. While the provincial court could only cite someone for common law contempt where the actus reus or contemptuous conduct occurred in the face of or in the presence of the court, the superior court could also use their contempt power in circumstances where the conduct was outside of court or ex facie. This was due to the inherent jurisdiction of the superior courts to maintain discipline within their courts independent of statute as opposed to the provincial or inferior courts whose jurisdiction was purely statutory.

This common law power is still used in courts today, albeit sparingly, and is available even though there are perfectly appropriate charging sections in the Criminal Code, such as s. 139 obstruct justice and s. 131 perjury. I have represented an individual for common law contempt and the unique aspect of the offence is the ability of the accused to proffer an explanation or an apology for the contemptuous behaviour that may be accepted as “purging” the contempt charge. I say “may” as the apology may negate the mens rea required for conviction but a judge is certainly not required to accept an apology as vacating the contempt finding.

Let’s now return to the second section to be discussed today, section 8. We saw how Parliament ensured that the Criminal Code would safeguard an accused’s rights by limiting common law offences and now, section 8, extends this protection by permitting some common law principles, which inure to the benefit of the accused, such as common law defences. In particular, I will read section 8(3):

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

Therefore, all common law defences, unless they are “altered by or are inconsistent with” the Code are available to an accused. The defences specified by the section are “justifications and excuses,” which are complete defences to a criminal charge but apply even though both the actus reus and mens rea of an offence are proven. Although both of these defences are restricted to a reasonable response by the accused to external pressures, they do differ.

An excuse acknowledges the wrongfulness of the action but holds that the accused should not be punished for his or her actions as Justice Dickson stated in the Perka case,

a liberal and humane criminal law cannot hold people to the strict obedience of the laws in an emergency situation.

Examples of an excuse would be the defence of duress, as in the Paquette case, and the defence of necessity as in the Perka case.

Conversely, a justification is where the accused challenges the wrongfulness of the act  as in the circumstances where “the values of society, indeed of the criminal law itself, are promoted by disobeying the law rather than observing it.”

For a fuller discussion on the present law on excuses see my previous blog on duress and the SCC Ryan case entitled Not To Make Excuses, But The Unresponsiveness of the Supreme Court of Canada To The Defence of Duress.

Returning to the exception in the section, which suggests that if the common law defences alter or are inconsistent with codified defences, then the codified versions prevail, we must consider the defence of duress as codified under s.17. As we will discuss when we arrive at s.17, both the common law defence of duress and the section 17 duress are available to certain accused in certain circumstances. We will see that far from the caution that the common law defence where altered or inconsistent cannot stand in the face of the codified defence, the common law defence of duress has actually altered the codified version as a result of the application of the Charter. But we will come to this in due course.

Of course, there is a world of common law defences outside of the Code and outside of the rubric of justifications and excuses such as the common law defence of mistake of fact and the common law defence of mistake of law. Certainly, the common law defence of mistake of fact has been altered for sexual assault offences pursuant to s. 273.2. There are other common law defences, which sadly are sorely underused such as the de minimus defence, or the defence that the law does not consider trifling breaches of the law. These common law defences receive short shrift unfortunately due to the advent of the Charter and the subsequent Charter-weaned lawyers who believe Charter rights are the only kind of defence worth pursuing.

Finally, a note on the legislative histories of these two sections. Section 8 actually was our present section 9 and our present section 9 was the then section 7 until section 6 was re-enacted as the present section 7. Section 7, as you may recall in the previous podcast, involves offences on aircraft and offences occurring outside of Canada. Our present section 9 was enacted as section 8 in the 1953-54 Code amendments. The reversal occurred in the revisions under the 1985 Code when section 8 became section 9. To make matters even more confusing section 8 was present in our original Criminal Code of 1892 under the then sections 7 and 983. In 1906, the sections were combined and re-enacted as sections 9 to 12. The following revisions made a dizzying number of changes until the 1985 revisions re-enacted the then section 7 to the present section 8.

Confusing? As I have complained before in these podcasts, often the government has placed content over form by changing and adding sections to the Code without consideration for placement or sense.

On that historically obfuscating note, I wish one and all a very happy holidays and a happy new year. This podcast will return in January 2014 as we discuss the next section of the Criminal Code of Canada – section 10 when we revisit the common law offence of contempt of court and the availability of appellate remedies.

Episode 11Of The Ideablawg Podcast On The Criminal Code of Canada: On Section 8 And Section 9 Of The Criminal Code - Codification vs. Common Law, Is The Criminal Code Big Enough?

The “Passive- Aggressive” Nature Of Sections 6(2) and 7 – Committing Crimes Outside of Canada: Episode Ten of the Ideablawg Podcast on the Criminal Code of Canada – Text Version

Up to now, the sections in the Criminal Code have been fairly benign – either informational, as in the section 2 definitions, or procedural like the section 5 exemption for the Canadian Forces. Although sections 6(2) and 7 are also procedural in aspect, they are, what I would call, “passive-aggressive” sections.

What do I mean by “passive-aggressive?” These sections, instead of providing information to help us apply the Code, are in some sense giving us a “mini-Code” regarding offences committed outside of Canada. In one breath these sections take away a category of offences and in another they seem to create them.

Let’s look at the passive side of this equation or the section, which takes away offences – section 6(2). I will remind you, and invite you to read or listen to my previous podcast on section 6(1), which discusses why the heading for section 6 is Presumption Of Innocence. I argued, in my section 6(1) podcast, that the section does not actually focus on innocence but on punishment. I will now further suggest that this argument is supported by section 6(2), which does not read as a presumption of innocence section but as a prohibition. Section 6(2) reads as follows:

Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside of Canada.

So this section is prohibiting, in quite a terse manner, our criminal justice system from trying a person for an offence committed in another country. But it is not an absolute prohibition as it has those limiting words “subject to this Act or any other Act of Parliament,” meaning that other sections in the Code can supersede this prohibition as well as other sections in other federal Acts. Indeed, the first exception that comes to mind is the Crimes Against Humanity and War Crimes Act, which is a federal piece of legislation that takes jurisdiction of any person who “commits outside of Canada genocide, a crime against humanity, or a war crime.” The second exception, which comes to mind, is found within the Code itself and is section 7.

Now, let’s look at this “aggressive” section 7, which seems to create offences. It is a lengthy section and although it is entitled Offences Committed On Aircraft, I would suggest it is a section covering much more than simple airspace and does make certain illegal activities committed outside of Canada an offence inside Canada. For the sake of brevity I will not be quoting this whole section. It covers eight and a half pages in my Martin’s Criminal Code, not including the newest amendment of the section on nuclear terrorism. Instead, I will make general comments on the section to give you a sense of its breadth, its weight, and just how broad an exception this section is to section 6(2).

Where section 6(2) is passive, section 7 is on the move, and where it is going is anywhere outside of Canada where an aircraft flies, where navigation is concerned, where ships go, where an oil platform may be drilling, where a space craft may blast off to, where a Canadian astronaut may be sleeping while in space, where nuclear material may be found, where cultural property may be transported, anywhere a public service employee may be committing offences, and where any Canadian commits a crime in accordance with various sections under the Code. The Criminal Code truly has global reach despite its seemingly passive section 6(2).

Of course, section 7 has been amended many times over the years to include all these various scenarios and is therefore a much newer section than section 6(2). Our world has become smaller through ease of travel and this section reflects that reality. But it also reflects a real desire of the federal government to keep jurisdiction over Canadian citizens and the illegal acts they may commit and the further desire of the government to keep tabs on individuals who may be plotting against Canada while outside of Canada. So why the misleading title for the section – Offences Committed On Aircraft? Well, there are many references in this section to aircraft, particularly relating to acts of sabotage or hijacking of a Canadian aircraft outside of Canada. Originally, before the “war on terror,” the section was mostly about aircraft, in response to the high profile hijacking cases of the late 1960s to early 1970s. Then, as the ways and means of committing offences outside of Canada became more varied and as our international obligations to combat these crimes became more pressing, the section was re-shaped and amended as it appears now.

The concept of Canada’s international obligations driving change to the section is seen in the references to these obligations within section 7, such as the Convention for the Protection of Cultural Property in the Event of Armed Conflict. Thus, this section is not just about domestic Canadian criminal law but also about international criminal law. The interplay between Canadian criminal law and international criminal law is complicated. It raises issues of jurisdiction over the offence and over the person, which is what section 7 is all about – ensuring that Canada has the jurisdiction or authority to prosecute certain crimes found in the Criminal Code, which may relate to other federal acts, which have an international aspect to them, such as the Aeronautics Act or, as previously mentioned, the Crimes Against Humanity and War Crimes Act.

Although the section may give Canada the authority to prosecute certain crimes committed outside of Canada, in some cases there may a dual authority, where there are crimes against humanity, to try the case at the International Criminal Court or ICC at The Hague. The International Criminal Court was established pursuant to the Rome Statute, which was adopted by 120 countries in 1998, in response to the seemingly endless international atrocities, which sadly did not stop at the International Military Tribunal at Nuremberg but continued into Rwanda and the former Yugoslavia. Before 1998, these crimes against humanity were prosecuted internationally by an ad hoc court such as the International Criminal Tribunal for Rwanda. As an aside, I had the honour of hearing Senator Romeo Dallaire speak of his role and Canada’s role in the Rwanda disaster. His speech was truly inspirational and a reminder that we do have true “Canadian Heroes.” As another aside, we should be equally proud of Canada’s role in the prosecution of those individuals responsible for the genocide as former Supreme Court of Canada Justice, Louise Arbour, was the Chief Prosecutor in the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

However, these specially constituted tribunals were not seen as enough of a response and hence the Rome Statute and the establishment of the ICC. The ICC has not been without controversy. The international community is not a homogeneous one and the perspectives run wide and deep. For instance, the recent prosecution of the President of Kenya, Uhuru Muigai Kenyatta, has been ongoing since 2010 and has still not advanced to the point of trial, partly due to the devastating terrorist mall attack in Kenya and partly through the efforts of Kenyatta himself. The trial is scheduled to commence February 5, 2014 but his prosecution has brought calls of bias against the ICC. A quick review of the active cases at the ICC reveals why: all 8 situations involve African countries. Thus the critics suggest there is an obvious country bias. The ICC has taken this suggestion so seriously that the court even has an online ICC Forum debating the issue.

Canada, according to a federal government website, contributed to the development of the ICC and is a signatory of the Rome Statute. Canada was the 18th country to sign the treaty and soon thereafter, in accordance with their obligations under the statute, Canada enacted in 2000 the Crimes Against Humanity and War Crimes Act. On behalf of the WEOG or the Western European and others Group of States, Canadian Judge Philippe Kirsch, who was heavily involved in the creation and implementation of the court, sat on the ICC from 2003 to 2009. There is presently no Judge from Canada on the Court. There is however a Canadian presence on the prosecutorial team with James Stewart as the Deputy Prosecutor. I have been on the opposing side to James Stewart when he was an appellate Crown in the Ontario Crown Law office and found him to be a formidable yet honourable adversary.

There is of course more to section 7 than I have time to discuss in a podcast/blog but I hope I left you curious enough to explore some of these issues. The bottom-line is that far from the isolationist bent of section 6, the Criminal Code is truly reflective of Canada’s international interests and obligations. In this way, therefore, the Criminal Code truly becomes a mirror of our “plugged-in” society as the global perspective becomes more and more important to all of us.