Sections 25.1 to 25.4 – Law Enforcement Justification Provisions: Episode 32 of the Ideablawg Podcasts on the Criminal Code of Canada

In this episode we will discuss what is known as the law enforcement justification provisions, proclaimed in force on February 1, 2002, as found under a compendium of sections from 25.1 to 25.4. These sections acknowledge certain police investigatory practices will involve the commission of offences, particularly where officers operate in a covert or undercover capacity. The most well known investigatory technique subject to these sections would be the “Mr. Big” investigations, which have attracted Supreme Court of Canada notice through the recent cases of Hart and Mack. For a further discussion of the many issues arising in such investigations, I highly recommend Mr. Big: Exposing Undercover Investigations in Canada by Kouri Keenan and Joan Brockman, who are from the excellent criminology faculty at Simon Fraser University.

The sections themselves were created in response to the 1999 Supreme Court of Canada decision in Campbell, wherein the court found that police were not immune from criminal liability as a result of unlawful conduct even if it was executed in good faith and to further a criminal investigation. The Court thus called upon Parliament to legislate such protection, which it did under these sections.

Although these sections make provision for investigators to commit offences in the course of their investigatory duties, the sections also create a mechanism for parliamentary and civilian oversight of such exceptional investigatory techniques. Thus, s. 25.1 contemplates a “competent authority” such as the Federal Minister of Public Safety and Emergency Preparedness or, the applicable provincial equivalents such as in the case of Alberta, the Solicitor General and Minister of Justice, who has the authority to designate “public officers” to act in these investigatory capacities. In addition to this designation, there must be civilian oversight or a “public authority”, in accordance with 25.1(3.1) “composed of persons who are not peace officers that may review the public officer’s conduct.” Furthermore, the designating Minister, under s. 25.1(4) must designate such public officers upon the advice of a “senior official,” who is a member of a law enforcement agency and has been so designated to act as a senior official by the Minister. In some ways, this designation process is rather self-fulfilling or circular considering the actual ministerial official who is receiving the advice chooses or designates the advising official. Upon receiving the senior official’s advice, the Minister must make the public officer designation on the basis of “law enforcement generally” rather on the basis of a specific law enforcement activity or investigation. Therefore, such designation must be viewed in the broader context of law enforcement, according to 25.1(4), and not done on a case-by-case basis. As with many ministerial decisions, this is the only articulated criterion for the designation, which leaves such designation open to broad discretion.

The senior official or advisor to the Minister has broader powers permitting the temporary designation of a public officer without the competent authority, under s. 25.1(6), under exigent circumstances, wherein it is not feasible to have the competent authority or Minister perform the designation and where the public officer would be justified in the circumstances in acting contrary to the Criminal Code. The circumstances of such a designation are set out under 25.1(7) and the justification for such conduct as found under 25.1(8), being that the senior official believes on reasonable grounds that “the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.”  In such exigent circumstances the senior official must notify the Minister of this action “without delay.” This requirement, I would suggest, seems rather contradictory. The purpose of the notification would be to ensure that such actions are not taken without the knowledge of the Minister but in order to effect such awareness, notification would only be fulfilled if in fact the Minister receives the missive and reads it. If the Minister is available to review such a document, one wonders why the Minister is not in the position of making the actual decision, considering the availability of instantaneous electronic communication.

In any event, there are further restrictions on the public officer’s ability and authority to act outside of the Criminal Code. Under subsection (9), further restrictions pertain to instances where the public officer is involved in activity that would be likely to result in loss of or serious damage to property or where a person is acting under the direction of the public officer in accordance with subsection (10). In these specific circumstances, the public officer must not only comply with the circumstances of justification under subsection (8) but must also comply with the further justifications listed under subsection (9). Thus, the public officer must also be personally authorized in writing to act or if such written authorization is not feasible, the officer must believe on reasonable grounds that the acts are necessary to “preserve the life or safety of any person, prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or prevent the imminent loss or destruction of evidence of an indictable offence.” This broad authority and justification to commit criminal offences is tempered by the limitation to the section under subsection (11) that there is no justification for “the intentional or criminally negligent causing of death or bodily harm to another person; the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or conduct that would violate the sexual integrity of an individual.” Section 25.1 also reiterates that all other protections to a police officer in the Code are available and that despite the extraordinary powers under the section, officers must still comply with the rules of evidence.

When a public officer does in fact commit an offence or direct others to do so in accordance with s.25.1, there are further oversight requirements such as under s.25.2, the public officer must file a written report with the senior official as soon as feasible after the commission of the said acts. An annual report is compiled by the competent authority or Minister and made public regarding the previous yearly activities outlining the number of emergency designations made by senior officials’ and the number of written authorizations made by the senior officials under 25.1(9)(a), the number of offences committed by officers as a result, the nature of the conduct being investigated and the nature of the acts committed by the designated officers. However, such report must still preserve the confidentiality, must not compromise ongoing investigations, must not prejudice an ongoing legal proceeding and must generally be not contrary to the public interest. Such annual reports are available online.

For instance, the RCMP publishes such reports through the Public Safety website. Although the 2012 Report is available online, the 2013 Report has not as yet been published most likely as the report must be first tabled in the House of Commons and the Senate for approval. However, provincial reports are available such as the 2013 report from British Columbia. Alberta does not publish a stand-alone report but publishes the information as part of a larger report on the state of the Ministry as a whole. This means the information is not clearly accessible but is found under the heading in the report entitled “Annual Report Extracts and Other Statutory Reports.” The actual 2013 “report” consists of three lines indicating three instances of illegal conduct committed while investigating “homicide and missing persons” and resulted in “minor damage to a vehicle.”

In the previous 2012 Report there were five instances of illegal conduct wherein the officers created the “illusion” of a break in, committed property damage and participated in activities of a criminal organization. This description creates more questions than answers as it is not a crime to create an “illusion” of a crime and it is only those acts contrary to the Criminal Code, which must be reported. If in fact a crime was committed by this “illusion,” for example, if the conduct amounted to a public mischief, then the report should specify the exact crime as opposed to the circumstances in which it was done. Of course, the sections do not provide immunity for certain criminal acts, no matter in what circumstances they are committed, such as an obstruct justice. Therefore, the information needed to provide the appropriate oversight for this activity must be detailed in a transparent and accountable fashion. Similarly, the fact that the officers participated in activities of a criminal organization is unclear considering some of those activities could no doubt be specifically identified as commission of crimes. Compare this to the BC Report, which although brief, contains much more information, such as the number of times the emergency designations were used. Certainly, none of these reports have any information on how the oversight requirements of the provisions, as in the review by the “public authority” or civilian oversight committee, are fulfilled. Considering the Hart and Mack decisions and the Courts concern with the use of investigative techniques, which mimic criminal organizations, such reporting should be reconsidered by government authorities. Additionally, in light of the importance of this oversight function and the fact there is no prior judicial authorization required, the published information should be standardized by the Federal Government and subject to civilian oversight scrutiny.

As with electronic interceptions of private communications, under s. 25.4, within a year after committing the justified offence, the senior officer, who receives the public officer’s written report, must notify “in writing any person whose property was lost or seriously damaged as a result of the act or omission” unless such notification would compromise or hinder an investigation, compromise the identity of an officer or informant, endanger the life or safety of another, prejudice a legal proceeding or be contrary to the public interest. Of possible concern is the exception to notify for reasons of prejudicing a legal proceeding as such prejudice may be in the eye of the beholder. In other words, such non-disclosure may prejudice the accused’s trial, even though disclosure would prejudice the prosecutor’s case. It seems more appropriate, in matters that are before the court, for a judicial authority to balance the prejudicial effects in order to determine whether or not notice should be given. This would be more consistent with Charter rights of disclosure of the Crown’s case to the defence.

Finally, it should be noted that there are provisions, which require a legislative review of these sections within three years of the sections coming into force. The first report of such review was presented in 2006.  One of the concerns raised in the report was the lack of prior judicial authorization for some of the activity. There are other concerns raised but the Committee “lacked sufficient evidence to come to any firm conclusions” and the sections remained unchanged. Indeed the report was entitled “interim” report, although I was unable to locate a “final” one.

It is important to note the paucity of information on the civilian oversight aspect of these sections. There is no reporting of or information pertaining to the composition of the “public authority” contemplated by these sections and the findings of this oversight committee. There was an interesting paper presented at CACOLE conference, which is the Canadian Association for Civilian Oversight of Law Enforcement, in 2002 after these sections were proclaimed in force. The paper presents an excellent overview of the proposed regime and the rationale as well as discussion of similar regimes in other countries such as England and Australia. The impact on civilian oversight was minimal, meaning that there were few or no complaints arising out of the sections. However, the paper does propose some recommendations to the oversight bodies to help reinforce the import of the sections by establishing a code of conduct or policies relating to good faith of police officers and the conduct required by police officers who are authorized to use such extraordinary powers. Certainly, this kind of oversight is being done by individual boards and commissions but is not nationally mandated. Thus, another recommendation is for the Federal Government to integrate the oversight of these activities into the relevant civilian oversight of the participating law enforcement agencies. Certainly this would strengthen public confidence in the system and provide transparency in a rather obscure area of law enforcement. Of note, is the Australian regime, which uses legislation similar to our criminal code provisions, but has added protections involving stringent code of conduct for officers and the use of prior judicial authorization. Certainly the Australian experience involves a far more robust public auditing and monitoring system than here in Canada.  Of particular note is the Australian Annual Report on such activities, known as “controlled investigations,” which is far more detailed than the reporting seen in Canada.

It may very well be that these changes will not happen until and unless the Courts become involved. To date there have been some Charter applications to declare the sections unconstitutional. These applications have been dismissed at the trial level and such arguments have not been made at the appellate court level. The Honourable Mr. Justice Curtis of the British Columbia Supreme Court considered Charter arguments relating to these sections in the Lising case. In that decision, Justice Curtis found the sections were not contrary to s. 7 of the Charter as the sections were not constitutionally overbroad or vague. On the further s. 7 issue of whether or not the lack of prior judicial authorization renders the sections unconstitutional, Justice Curtis ruled that in the extraordinary circumstances of section 25.1, prior judicial authorization is not warranted and in fact impede the intention of the sections. As Justice Curtis stated “The ultimate goal of Parliament in enacting s. 25.1 is the protection of everyone’s right to “life, liberty and security of the person”. This line of reasoning may presage similar arguments, which may be made on the anticipated federal government anti-terrorism efforts that will give CSIS enhanced powers of investigation.

It will be useful to monitor the status of these provisions considering the enhanced national security concerns and the impact of the Hart and Mack cases on the “reverse sting” or “Mr. Big” operations. Yet again it will be the courts who will need to balance the rights of the individual to be free of state interference with the collective right to live in a secure and safe society.

 

 

Section 25 of the Criminal Code Part II: Episode 31 of the Ideablawg Podcasts on the Criminal Code of Canada

In the previous episode, I introduced section 25 of the Criminal Code as a protective measure for those persons enforcing or administering the law and those persons assisting in such activities. Under subsection (1), the section permits the use of force and justifies it if the authorized person acts on “reasonable grounds” and the authorized person uses no more force than is necessary to affect his purpose. Thus, when an authorized person steps outside this reasonable and necessary protection, the force would be considered excessive. However, this justification is qualified under subsection (3) when the force used is “intended or likely to cause death or grievous bodily harm.”

Although, subsection (3) discusses the scenario when the authorized person is not protected under s. 25, in actuality, the subsection establishes when an authorized person would be justified in using, for the want of a better term, “deadly” force. Such force is justified if the authorized person “believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.” However, subsection (3) adds a qualifier to subsection (1), where the force is intended to cause death or grievous bodily harm. In those heightened circumstances not only must the force be reasonable and necessary for the enforcement and administration of the law but it must also be used in the context of a reasonable belief on the part of the authorized person that using such force was necessary to protect himself or others under his protection from death or grievous bodily harm. This qualifier is itself subject to (4) and (5). Thus, under subsection (4) such force is justified where the authorized person is arresting someone in circumstances outlined under the subsection. Further, such force is justified against an inmate who is escaping from the penitentiary if the authorized person believes on reasonable grounds that any of the inmates pose a threat of death or grievous bodily harm and the escape cannot be reasonably prevented by less violent means.

There is a large amount of case law on whether the authorized person falls outside of this section and therefore the force is excessive and not justified. The courts have tended to interpret this section generously and to the benefit of the authorized person using the force. For instance, the court recognizes that in the determination of whether or not the force used was reasonable and necessary, the court must not assess the situation through the “lens of hindsight” but must take into account the immediacy of the decision in light of the heightened emotional and stressful circumstances typically surrounding the event. However, the issue of excessive force is a nebulous one driven by factual considerations. Interestingly, though the court is cautious not to be  “a Monday morning quarterback,” many of these cases involve expert evidence not only on appropriate use of force training but also on the ultimate issue as to whether the force used in the case was in fact excessive. By elevating these cases to almost a scientific interpretation of events, the admonishment not to view the cases through the “lens of hindsight” seems to obscure rather than elucidate. A case-by –case determination, applying the relevant legal principles, seems like a more judicious approach.

I don’t intend to go through the case law on this issue in this blog but I would like to point out how the use of force as authorized under this section has impacted areas both outside of criminal law and in criminal law but in a non-traditional basis. The issue of use of force has greatly impacted tort law and civil litigation against police officer and police services. Some of these cases relate, not just to individual officers but also to the concept of use of force in the tactical decisions made by the police. Thus, in the Alberta Court of Appeal case of Webster v. Wasylyshen from 2007, the court considered whether or not the use of the tactical team in the search of the plaintiffs’ home amounted to excessive force. The Court, in that case, found the use of the team was not an excessive use of force “given the need for public protection in the circumstances known to the police.” Excessive use of force by the police is also an issue, which tangentially finds relevance in certain Charter cases where a violation of Charter rights requires an exclusion of evidence under s. 24(2) as the officers’ excessive use of force shows bad faith on the part of the police resulting in the administration of justice being brought into disrepute. Such an argument was accepted in the dissenting decision of the Supreme Court of Canada 2010 Cornell case.  Further, excessive use of force has been used as a mitigating factor on sentence, where an offender is being sentenced for offences but in which the officers were found to be using excessive force.

Although some form of section 25 has been in the Criminal Code since its inception, the section has continued to be tested by the courts in many differing areas of law. The issues raised under this section will no doubt give rise to further advancements in the test to be used in determining excessive use of force and the circumstances in which the court will make such a finding as the world moves into the digital age and the image finds prominence in the courtroom setting. Instead of “dueling” use of force experts the courts will be faced with “dueling” videotapes emanating from citizen cell phones and officers body worn cameras. These new evidentiary tools will, I suggest, push the evidentiary limits of the law in this area and will, I suspect, provide a whole new area of case law in this area.

 

 

Section 25 – The Use of Necessary Force In Law Enforcement Part One: Episode 30 of the Ideablawg Podcasts on the Criminal Code of Canada

As a result of the release of the Iacobucci Report on the Toronto Police Service’s response to people in crisis precipitated partly by the Sammy Yatim incident and the recent Michael Brown incident in Ferguson,  never before has the issue of necessary use of force in law enforcement been so prominent in the public forum. Although much of the present media focus has been around body worn cameras for police to monitor and record police practice relating to the use of force, the Iacobucci Report actually goes further and recommends a “zero death” policy, meaning “no death of the subject, no death of the officer involved or of any member of the public.” Whether or not that is possible is a debate for another day but for our purposes, we need to face the reality that force can be used and is authorized under section 25 of the Criminal Code.

We should first note the section descriptor – “Protection of Persons Acting Under Authority.” The section therefore is not a “use of force” section as we tend to describe it but a section focused on protection of those administering or enforcing the law. The protection afforded by the section precludes attaching criminal liability to the authorized person’s actions. Also note that the section covers all “persons” who are acting under authority and not merely the police. Thus, private citizens benefit from this protection as well. In fact, let’s look at the first part of s.25(1) as it lists the “persons” so protected as follows:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

 (b) as a peace officer or public officer,

 (c) in aid of a peace officer or public officer, or

              (d) by virtue of his office,

 

As is with most sections in the Code, the section is both narrow and broad scope. It is narrow as the persons protected must be acting under authority or as required by law. It is broad as the act can be “anything.” Furthermore, the person so authorized, as already mentioned, may be a private citizen or a law enforcement officer as per the definition of “peace officer” and “public officer” under the s.2 definitions. The section also includes those persons aiding law enforcement and those individuals acting “by virtue of his office,” meaning a person who is acting in a position of a public nature. Now, lets look at the complete subsection 1:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

                  (b) as a peace officer or public officer,

                  (c) in aid of a peace officer or public officer, or

                  (d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

 

 

Thus, the protection against imposing criminal liability is limited and only protects the actor if he or she “acts on reasonable grounds.” If the person does act on reasonable grounds then he or she is “justified” in his authorized actions and “in using as much force as is necessary” for effecting that purpose.  This section outlines a common law defence of justification. I have discussed justifications in previous blogs and podcasts but I will provide a refresher. Justifications (and excuses) are defences, which are available after the essential elements of a crime, both the prohibited act and the criminal intention, have been proven. Thus, these defences are a concession to human frailty and a recognition that people are, well “human,” and may act contrary to the law in special circumstances. These special circumstances usually involve exigent circumstances whereby the person has no choice but to act in a manner inconsistent with the law. In the case of justifications, which are defences of the person and property, the offender, by raising the defence, is challenging the “wrongfulness” of the act. In other words, the act is a crime in name only as the circumstances require that the offender be absolved of any criminal responsibility. Thus, the conduct is not wrong as the offender is justified in using force. Of course, flowing from this argument is the requirement in every justification that the force applied be no more than necessary to repel the perceived harm. This brings us full circle to this section as a “use of force” section and the emphasis on whether or not the force was “excessive” in the circumstances.

It is useful to compare the wording of subsection (1) to the old defence of the person sections. I say, old, as the previous sections 34 to 42 were repealed and replaced by the new sections 34 and 35. In the old section 34, which provided for self-defence against an uprovoked assault where death or grievous bodily harm is not intended, an accused was justified in using force that is “no more than is necessary” to defend himself. As you can appreciate, self defence for a non-authorized person is restricted and the admonishment is to minimize the use of force to what is only required. In contrast section 25 is permissive as the authorized administrator of the law is permitted to use as much force as is required to fulfill his duty. The new section 34 does not use the same language but instead requires that the act be “reasonable in the circumstances.”  The “nature and proportionality” of that response, under the new section, is only one factor in determining the reasonableness of the act in the circumstances of the case. In contrast, section 25 only offers a list of factors in determining the reasonableness of the authorized person’s actions, where the force is “intended or likely to cause death or grievous bodily harm.”

Another similar section, which protects persons in authority, is section 43 concerning the correction of a child. In that section, a schoolteacher, a parent or a person standing in place of a parent is justified in using force to correct a child if the force “does not exceed what is necessary under the circumstances.” Again, this section appears to restrict as oppose to permit. This section does not contain a list of factors in considering the necessity of the actions.

The history of the section also sheds some light on the protection afforded by the section. Originally, the precursor to section 25 covered a number of sections. For example the present s. 25 not only applies to an arrest but also refers to the use of force in executing a warrant, in incarcerating a sentenced offender and in preventing an escape from a penitentiary. In fact, historically, these scenarios were part of the use of force protection but were found in separate sections. For example, in the original 1892 Code under Part II “Matters of Justifications or Excuse,” arguably similar subject matter is covered in the multiple sections from 15 to 44, which comprise over half of the sections found under that Part. There were some changes by the 1905 Code but major changes, as in the compression of the bulk of these sections (essentially sections 15 to 37 from the 1892 version), did not come until the numerous amendments in the 1950s, which resulted in major changes to the 1953-54 Code. It is in this version that the various sections were combined and re-enacted as section 25.

How does the present iteration compare with the 1950s version? The first part of the present section, under (1) to (3), is substantially identical to the version used half a century ago. In other words, no changes have been made to the essential elements of this legal protection. However, significant changes were made to the latter part of the section under subsections (4) and (5) as a result of the 1994 amendments to the Code. Those changes brought in the list of “factors” to assist in the determination of the justifiability of using force “ that is intended or is likely to cause death or grievous bodily harm to a person to be arrested.” In the next podcast we will look at these changes more closely as well as the general issue of excessive use of force under the section.

Section 24 - Attempting the Impossible: Episode 29 of the Ideablawg Podcasts on the Criminal Code of Canada

In the previous podcast we tackled the possibilities but in this podcast we will discuss the impossibilities. Section 24 of the Criminal Code pertains to attempts to commit an offence in an “attempt” to clarify what it means under our criminal law to commit an attempt of a crime. The difficulty with an attempt crime can be traced back to the essential elements of a crime and to the reluctance of the criminal law to attach liability to “evil thoughts.” Thus, in criminal law is the requirement that for a crime to be committed there must be both a prohibited act or actus reus and a criminal intent or mens rea as highlighted by the Latin maxim actus non facit reum, nisi mens sit rea, which translates to “there is no guilty act, without a guilty mind.” Not only must these two elements be present for a crime but they must also coincide.

A good example is the entertaining 1968 UK case of Fagan v Metropolitan Police Force in which Fagan accidentally rolled onto a police officer’s foot but once he realized he had done so, he swore at the police officer and turned off his car. After a few agonizing moments, Fagan turned on his car and rolled off of the officer’s foot. Fagan was charged and convicted of assault police. On appeal, Fagan tried to argue that there was no assault in law as his criminal intent or mens rea did not manifest itself until after the prohibited act or actus reus of rolling onto the officer’s foot. The House of Lords found this argument too narrow and explained that the prohibited act can be a continuing action and indeed in Fagan’s case they found that from the time Fagan rolled onto the foot to the time he subsequently rolled off was one continuing transaction, during which  Fagan formed the criminal intent.

So what does this great case narrative have to do with attempts? In the case of attempts it becomes very difficult to know when the actus reus and the mens rea coincide as the prohibited act is a subtle one and falls short of the actual criminal act. Indeed, attempts are known as incomplete or inchoate (not fully formed) crimes. There are other crimes, which fall under this incomplete or unfulfilled category such as counseling to commit a crime not committed under s. 464 and conspiracy under s. 465. The issue then is identifying when an act of attempt occurs as it is not the completed act and yet it is also not the mere thinking of the act as that would criminalize mere evil intentions. Thus, an attempt takes place before the completion of the intended crime but the Courts must decide at what point the attempt is complete and criminal liability will attach. Something more is required and section 24 instructs us on how that “something more” is determined in a criminal case.

Section 24 has two subsections and reads as follows:

24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

Other than s. 463, which we will get to much much later and deals with the punishment for an attempt, s. 24 is the only section in the Code dealing with attempts. The difficulty is that this section doesn’t exactly tell us what it means to commit an attempt of an offence. The section does however give some legal clues, which the courts have then used together with common law interpretations of attempts to fill in the doctrinal meaning of “attempt.” From subsection (2), and from case law, we can say that an attempt is complete when the accused person’s actions go beyond “mere preparation.” This usually means the next step done with the intent to commit the crime, after preparation is complete. There also must be proximity in time between the act and the intention.

Who decides when preparation is complete? Subsection 2 tells us that it is the trial judge, who determines this issue as a question of law. Therefore, if a jury tries the matter, the trial judge will instruct the jury on this issue. The jury, as triers of fact, will then apply the legal principles to the facts to determine if the accused is guilty or not guilty of the attempt.

Not only does the prohibited act for an attempt require specific findings based in law but the intention required for an attempt is specific as well. The mens rea required for an attempt is the mens rea required for the completed offence. But in the case of attempt murder, the intention required is the highest level of subjective mens rea under s.229(a)(i), intention to kill, and not the slightly relaxed intention under s. 229(a)(ii).

I am now going to add my own narrative to this issue by relating the circumstances of the first case I did as a lawyer. I was called to the Bar in March and within the week, I was representing a client charged with an attempt break and enter. Certainly, one can envision an attempt break and enter – for example here are the facts from the 1986 Alberta Court of Appeal Gochanour case wherein a homeowner was awakened by noises at her living room window and when she looked out the window she saw the exterior screen was ripped open and someone was running from her residence. In my client’s case, the allegation was that the client, who was under the influence of alcohol at the time, was found in a fairly upscale neighbourhood with a stick in his hand. The police found scratches around the lock of a front door of a nearby house. The client was discharged at the preliminary hearing but as we can see from s.24(1), not on the basis of impossibility – as it is impossible to open a locked door with a stick – but because a properly instructed jury acting reasonably could find no evidence that the client used the stick for the purpose of committing a break and enter of a residence.

Impossibility is therefore not a defence to an attempt and therefore one cannot argue that because the completed offence was not possible, the accused must be acquitted of the attempt to commit the impossible offence. This proposition holds true whether or not the offence was legally or factually possible. But, as we will discover this does not necessarily hold true, for practical purposes, for every charge.

Let me wrap up the discussion of section 24 by offering some thought-provoking examples. A pickpocket who attempts to steal from an empty pocket is still liable to be charged for an attempt theft. Although this is legally fair, the question may be is it morally right? Should someone in that position face a possible criminal record and/or jail?

Here are some offences in which one may not be able to be charged with an attempt – even though according to s. 24 charges are possible. It is difficult to conceive of an attempt to commit a criminal negligence under s.219 – although this may be a too simplistic conundrum - it is hard to imagine how someone can attempt to be negligent. It is also difficult to conceive an attempt to be found in a common bawdy house according to s. 201(2)(a). How can someone attempt to be found in a place as required by the section? We can also apply this concept outside of the Criminal Code and to the quasi-criminal regulatory field. Can someone attempt to speed? Can someone attempt to commit an absolute liability offence, which requires no intention at all? Or in the regulatory field, can the defence argue that attempt charges are indeed not possible as they would be inconsistent with the spirit and purpose of those regulatory acts or that pursuant to, the enabling provincial statutes such a concept is inconsistent with the Act. For example, the defence could rely on s. 3 of the Provincial Offences Procedure Act or for federal acts s. 5 of the Contraventions Act, which provide for the application of the Criminal Code to regulatory offences as long as such sections are not inconsistent with the regulatory Acts. Of course, the contrary argument might be that those regulatory statutes are procedural while the concept of an attempt is a substantive issue. What has been made clear by case law is that someone cannot be charged with an attempt to commit an incomplete crime such as mentioned earlier in this podcast – counseling to commit a crime not completed and a conspiracy. So in the end, perhaps there is a defence to the impossible!

 

 

Episode 29 of the Ideablawg Podcast on the Criminal Code of Canada - Section 24 - Attempting the Impossible

Section 23.1: The "Limitless" Criminal Law - Episode 28 of the Ideablawg Podcasts on the Criminal Code of Canada

One of the interesting learning moments for me, resulting from this Criminal Code podcast, is the realization that the criminal law has changed in the past three decades, which, in common law time, is a fairly short period of time. Certainly, this section, which we will consider today, s. 23.1 of the Criminal Code, is an example of how the Code can and does change the practice of criminal law. To give perspective, s. 23.1 was added to the Code in the 1985 amendments, while I was in law school. I recall those amendments mostly because I had to “re-learn” the section numbers of the Criminal Code. I particularly recall how the assault section, s. 244, was changed to the section number we use today – s. 265 - and my fear that I would never be able to remember the new section numbers. Considering I needed to look up what the old section number was to write this blog, I wonder how I could have been so worried. What I was not too concerned with at the time was the change caused by s. 23.1, which in hindsight was certainly a much bigger deal than the mere section number changes.

Section 23.1 reads as follows:

For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

Therefore, it is possible for an accused to be convicted of counseling a crime even if the person actually committing the crime is not guilty or cannot be tried and/or convicted. For example, an adult who involves children under twelve in the drug trade can still be convicted as a party even though the children, who are actually committing the crime, cannot be convicted, according to s. 13 Code, as they are statutorily debarred on the basis of age. For more on section 13 of the Code, read or listen to my previous podcast. Additionally, even though an accused who commits a counseled crime while under duress would have a valid legal defence, the person who counseled such an offence under s. 22, may still be convicted. It is also possible for an accused to be convicted as an accessory after the fact even if the fugitive offender is ultimately acquitted of the crime from which he or she was escaping. I will return to accessory in a moment as this particular mode of crime has been viewed as different than the other modes and has caused more legal controversy despite s. 23.1.

Based on the above, particularly the “Oliver Twist” example, it does make sense that the Crown be able to prosecute secondary participants on a separate basis than the main offenders. However, prior to 1985 this was not the case. This did not mean that a person involved in a crime, in circumstances where they might be a party or a counselor or an accessory, could not be charged. Indeed, prior to these amendments the charge of conspiracy was usually laid against the secondary accused. However, as we will see when we finally do arrive at the conspiracy section 465, to found a conviction under the conspiracy section is quite complicated. Certainly, more complicated than basing the offender’s participation through the party section.

Although this concept or ability to prosecute was easily accepted after 1985 for participating as a party or as a counselor to a crime, the issue of being tried as an accessory after the fact, where the fugitive offender was not convicted, was not. To understand the special status of being an accessory after the fact, we must consider the Supreme Court of Canada Vinette case from 1975. In the Vinette case, the accused Vinette was charged as an accessory after the fact to a murder committed by Vincent by assisting Vincent to dispose of the victim’s body. Vincent entered a plea of guilty to manslaughter and at Vinette’s trial, Vincent’s plea, as a “confession,” was admitted against Vinette. Vinette was convicted by the jury but the conviction was quashed by the Court of Appeal on the basis that Vincent’s plea was not admissible against the co-accused Vinette. Mr. Justice Pigeon, writing on behalf of the majority, allowed the Crown’s appeal and upheld the conviction. In Justice Pigeon’s view, the elements of being an accessory after the fact differs from the main offence and therefore is a separate charge. Thus, the usual evidentiary rules pertaining to admissions made by co-accused do not apply and Vincent’s statements are admissible. According to Justice Pigeon, not only was a charge of accessory separate from the main offence but also by its very nature must be committed after the main offence. This chronological requirement also suggested that the main offender must be tried and convicted before the accessory could be found guilty. However, after a line of cases which tried to decipher Justice Pigeon’s suggestion, it was determined that as the Vinette decision made no mention of the now s. 592, which permitted an accessory to be indicted before the main offender, the chronological argument carried no validity. We will eventually come to s.592 and revisit this conundrum.

In any event, the idea that being an accessory after the fact was a unique charge, which was intimately tied to the main offence resulted in a line of cases questioning s. 23.1 in relation to s. 23. In fact, in the delightful decision of the Honourable Justice Woods, on behalf of the British Columbia Court of Appeal in the 1993 Camponi case, the historical common law significance of being charged as an accessory after the fact was traced in light of s. 592 and s. 23.1. Again, I want to keep back some discussion of this for the much, much later s. 592 podcast but needless to say Justice Woods found no problem with trying an accessory after the fact before the main offender and no problem finding an accessory guilty even if the main offender was acquitted. To that end, and in reference to s.23.1, Justice Woods remarked at paragraph 25 of the decision that:

This section was enacted in 1986, c. 32, s. 46. with what must be regarded as an unusually confident legislative tone, it announces an intention to bring greater certainty to the law relating to ss. 21-23 of the Code. Whether it has achieved that lofty goal will be for history to decide. Suffice it to say that in the context of the present discussion its intent seems to have been to put the quietus to any lingering notion that s. 592 preserved, or was intended to preserve, the essence of the common law rule relating to accessories after the fact.

Finally the matter appeared to be truly put to rest when the 1997 Nova Scotia Court of Appeal FJS (also known as Shalaan) case came to the same conclusion as Camponi and this decision was affirmed with brief reasons by the Supreme Court of Canada. Interestingly, the controversy continued, not in the law courts per se but between the lines in the annotated Criminal Codes. In the commentary under s. 23.1, Martin’s Annual Criminal Code references the Supreme Court of Canada FJS case in support of the position that an accessory after the fact could be convicted even if the main offender was acquitted, while in Allan Gold’s The Practitioner’s Criminal Code, as least as of the 2008 version, the commentary dismissed the Supreme Court of Canada’s decision as decided per incuriam.

But we are not finished with this section and the myriad of case law this section has garnered. Recently, on April 3, 2014, the Supreme Court of Canada dismissed the leave application in the Huard case, which raised the constitutionality of the well-established principle, as really encapsulated by s. 23.1, that a party may be convicted of a more serious offence than that of the main offender. In that case, Mr. Huard was convicted as a party to a first-degree murder even though the principal offender was only convicted of second-degree murder. Counsel argued that the principles of fundamental justice, as guaranteed under s. 7 of the Charter, requires that those less morally culpable should not be punished more severely than those more morally culpable. Mr. Justice Watt, on behalf of the Ontario Court of Appeal, dismissed the argument as he found the “mere common law rule” relied upon was not a principle of fundamental justice and s. 23.1 “makes it clear” that a party can be convicted even if the main offender is acquitted or not even tried. As an aside, the Appellant in the Camponi case relied upon an article written by Justice Watt, which he wrote prior to his appointment to the Bench, on accessory after the fact and the ambiguities found in s. 592. This shows that the connections in the Canadian criminal law are indeed endless and it appears that they may be unlimited too!

 

 

Episode 28 of the Ideablawg Podcasts on the Criminal Code - Section 23.1

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 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

Section 18 – A Duress Addendum? Episode 20 of the Ideablawg Podcasts On The Criminal Code of Canada

Last week we discussed the codified version of the common law defence of duress or, as it is know in the Code, “Compulsion By Threats.” This week, we have a section, also concerned with compulsion but the specific compulsion, which may arise as a result of marriage. Section 18 faces this possibility and states as follows:

No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person.

This section is saying that the criminal law does not presume that a person who commits an offence in the presence of a spouse has been compelled to do the criminal act merely by virtue of their relationship. Immediately, one speculates on why it is the marriage relationship singled out in this fashion. Why does the section not speak to the parent/child relationship, which is also a strong bond between two people or even a sibling relationship? The answer lies in the original version of this section and although the present iteration seems benign enough, the historical version, on today’s standards, is much more contentious.

The section was in the original 1892 Code under the then section 13 and was entitled “Compulsion of Wife.” The section was, as you probably guessed, based on gender stereotypes as it held that “no presumption shall be made that a married woman committing an offence does so under compulsion because she commits it in the presence of her husband.” This one-sided notion was changed to gender-neutral language in the 1980 Code amendments. But this still does not explain why this section was codified in the first place.

As I explained in previous podcasts, there are many common law defences available to an accused and still available through s. 8(3). I have talked about the major types of defences that are regularly used today – such as justifications and excuses and the defence of mistake of fact. However, there are other common law defences, which are not regularly used such as the defence of de minimus non curat lex. This translates to the “the law does not concern itself with trifles” and has been used in many different kinds of scenarios such as in theft cases where the subject matter value and/or the criminal actions are trivial. Leaving that aside, there are, as I said, other common law defences and the defence of marital coercion is just one such common law defence.

The defence, if successful, exonerated a woman of criminal responsibility for criminal acts carried out in the presence of her husband on the reasoning that the wife unquestionably obeys her husband and therefore has no choice but to commit the criminal offence. She is not acting under her own volition and therefore should be excused for her conduct. It is a defence that inures only to the benefit of the married woman as in common law the husband is not so duty bound. Although the defence appears to be very similar to the defence of duress there are differences in application. The accused must be the legal wife of the husband in question and therefore legally married at the time. Even an accused who has an honest but mistaken belief of marriage cannot use the defence. There is some case law in the United Kingdom, which also suggest that the coercion need not be physical but can be moral and psychological as well.

Although this common law defence, in a modified form, is still in use in the United Kingdom (the defence cannot be used for murder or treason, see Section 47 of the Criminal Justice Act 1925), section 18 of the Criminal Code abrogates that defence. As we discussed in earlier episodes, common law defences are only available unless they are “altered by or inconsistent with” the Criminal Code and thus the defence of marital coercion, be it husband or wife, is not available. Even so, this does not preclude the accused person from raising the defence of duress, either under the common law or under s.17 as applicable.

As an aside, there is a move to abolish the defence in the UK as a result of the 2013 Pryce case. Vicki Pryce, a well-known government economist, raised the defence in her trial of perverting the course of justice when, at the behest of her then husband, she lied to the police that she was driving the family car allowing her husband to avoid demerit points. The use of the defence in this case, caused an outrage in British society, particularly in light of Pryce’s elevated position in the government. She and her husband were convicted and sentenced to eight months incarceration. Just recently, the UK government announced plans to abolish the defence.

 

 

Episode 20 of the Ideablawg Podcast on the Criminal Code of Canada: Section 18 - A Duress Addendum?

Section 17 – The Statutory Defence of Duress: Episode 19 of the Ideablawg Podcasts on the Criminal Code of Canada

In previous podcasts we have discussed the category of legal defences called justifications and excuses. We know that despite codification our criminal law permits an accused person to raise at trial a common law defence, as long as it is not inconsistent with the Code. There are purely common law defences such as the excuse of necessity (which by the way is exemplified in the seminal case taught in every first-year law school criminal law course – Regina v Dudley and Stevenson – where the two accused charged with murder committed cannibalism when their ship floundered in the high seas and they were forced to drift on a lifeboat – think Life of Pi without the animals) but there are also common law defences, which are subject to codification and found in the Criminal Code. The excuse of duress is one such defence from the common law, which appears in the Code under the section we are contemplating today, section 17.

When we first look at this section, and it is a long one, we realize that the word “duress” is never used in section 17. We therefore immediately feel that what we are about to look at and think about is not the same as the common law defence of duress. This is a correct assumption, on the face of this section. When we look behind this section however and look at the case law, which has developed in conjunction with the advent of the Charter on the mechanics of this section, we will see that in reality this section entitled “Compulsion By Threats” is really very similar to the common law version and only differs in terms of what category of accused person can use this section and for which offences.

Section 17 reads as follows:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Before we dissect this section to have a clearer understanding of it, I want to remind you of the key elements of the class of defences we call excuses.

Both the actus reus and the mens rea of the offence must be proved beyond a reasonable doubt by the prosecution before a legal excuse or for that matter a legal justification can be used as a defence. This means that the case against the accused is made out and, but for this defence, the accused would be found guilty. In light of that prerequisite, the class of defences known as excuses acknowledge the wrongfulness of the conduct but as a result of the circumstances facing the accused person, the accused should not be held criminally responsible for his or her criminal actions. However, the circumstances facing the accused must be dire, in other words, the defence of excuse can only be used in emergency situations. It is therefore the accused’s reaction to these dire situations, which cause society to excuse or absolve their conduct.

Excuses are a concession to human frailty and therefore reflect our humanity in two ways. First, this defence realizes that as individuals, as part of our humanity, we may act inappropriately in order to preserve our life or others. Secondly, as humans we understand that we are not perfect and that our laws must bend to this truth in order to have a compassionate society.

Despite the above, the situations in which excuses can be used are very restrictive because we fear that permitting too broad an excuse for criminal conduct will result in cases where we as a society may not be so sympathetic. So, the rule of law draws a line between what is excused and what is not. The difficulty then becomes, where to draw this line in order to remain true to our humanity without losing it.

As I already mentioned, the section is a reflection, albeit as we will see an imperfect one, of the common law defence of duress and thus this section was in the 1892 Criminal Code under section 12. This original section, except for certain language changes, is virtually the same as the now section 17. Not much changed over the years to this section and yet, as I have already mentioned, the section has changed dramatically since 2001 when the Supreme Court of Canada gave this section a constitutional make-over in R v Ruzic.

The Court in Ruzic, under the auspices of section 7 of the Charter, found that the statutory duress defence was too restrictive, particularly in relation to its common law partner, which even with s.17, could be used by parties to an offence. In the Court’s view, the statutory defence, available only to principal offenders, should not be more restrictive than the common law. In order to re-balance s. 17, the Court took out those passages in the section, which did not accord with the common law equivalent. Even so, the Court did not remove the offences for which the defence was available, choosing to leave those changes, if desired, to the government.

In light of this, let’s return to section 17 and this time, I will edit the section to accord with the Ruzic decision:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

Even with these changes the defence is a difficult one to employ. According to the newest Supreme Court of Canada case, in Ryan, the defence can only be used on the following bases:

  1. There must be a threat of death or bodily harm;
  2. The threat can be directed at the accused or a third party;
  3. The accused must reasonably believe that the threat will be carried out;
  4. There must be no safe avenue of escape, evaluated on a modified objective standard;
  5. There must be a close temporal connection between the threat and the harm threatened;
  6. There must be proportionality between the harm threatened and the harm inflicted by the accused, evaluated on a modified objective standard;
  7. The accused cannot be a party to a conspiracy or association whereby he or she is subject to compulsion as long as the accused actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association;
  8. The accused must be the principal offender and;
  9.  

In closing, there are a few items to note. First, the modified objective test is a creation of the Supreme Court of Canada in the series of cases on the meaning of criminal negligence. A discussion on this “test” and whether it is in fact a modifying one can be found in one of my previous blogs entitled The Subjective/Objective Debate Explained.

Second, the common law defence of duress in Canada is not restricted by type of offence, even though, in the UK the common law defence of duress cannot be used in a homicide charge, be the accused principal or a party.

Third, despite section 8(3) of the Code, which holds that common law defences continue unless they are altered or are inconsistent with the Code, section 17 changed to become more aligned to the common law as opposed to the common law defence changing to become more aligned to the Criminal Code iteration. This is because the common law defence of duress is for parties to an offence and the statutory defence is only for principal offenders. It is this distinction allows the common law defence to stand apart from the Code.

Fourth, even though Ruzic changed section 17, the Code does not reflect this change. One has to read the case law in order to know how the section should actually be implemented. This insistence by the federal government not to reflect court imposed Charter changes to sections is something that will come up again in the Code and in these podcasts. Indeed, there are whole sections, such as s.230 of the Code known as the constructive murder section, which have been struck down by the courts as constitutionally invalid and yet still appear in our Criminal Code. Why this is so is a matter of speculation but one wonders if the government believes that a differently composed court will take a different view or that the Charter may somehow change in the future. Either way, it is an oddity that these sections remain as they do as a vestige of the pre-Charter past.

Finally, there is much to be said about the recent Supreme Court of Canada decision in Ryan, which precluded the use of the duress defence in a situation where the accused was an abused woman who contracted an undercover police officer to kill her husband.  I will not, however, discuss those issues here in this podcast. Instead, I invite you to access my previous blog on the matter entitled Not To Make Excuses, But - The (Un)Responsiveness of the Supreme Court of Canada To Duress. I have also written on the application of the “air of reality test,” which is the threshold test used to determine if, in the circumstances of a case, a legal defence will be available to an accused in my blog entitled Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test. I am currently writing a full article on this issue for publication.

We will of course come to further sections in the Criminal Code codifying common law defences where we will continue to peek back at the common law to frame the statutory doppelganger in the Code

Episode 19 of the Ideablawg Podcast on the Criminal Code of Canada: Section 17 - The Statutory Defence of Duress

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

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 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?