Unpacking R v Barton

R v Barton is a bold and intrepid decision. It is not so much a lengthy decision as it is densely packed and nuanced, examining and uncovering layers of issues. It is a case that identifies errors and then offers solutions. It is a decision that exudes the modern principled approach, now a staple in an appellate Court’s analysis of a variety of legal issues from the admission of evidence to the interpretation of statutes. Admittedly, the decision can give the reader a sense of discomfort, the kind of unsettling feeling one gets when being challenged to think differently. The kind of feeling one can have when reading something unexpected. But that does not mean the feeling is unwelcome. In this post, together we will “unpack” or identify some of the salient features of the decision. I will also try to respond to this feeling of discomfort. I caution however that the decision requires much contemplation and measured thought. What I am attempting to do here is to articulate my impressions upon reviewing the decision. I will leave to a later date in a further article an analysis of the myriad of legal issues raised in this decision through a review of precedent and legal principles.

The facts are startling, sad, and familiar. Cindy Gladue, a young Aboriginal woman, was paid sixty dollars by Mr. Barton to perform sex acts. Two interactions occurred over two days and on the second evening, Ms. Gladue died in the bathtub of Mr. Barton’s hotel room. She bled to death from a perforated vaginal wall. At trial, Mr. Barton admitted he had sexual contact with the deceased that evening. He admitted he repeatedly pumped his fist into Ms. Gladue’s vagina at which point she started to bleed. He maintained that he did not intend to harm her and that he was unaware of her condition until he awoke in the morning and found her immobile in the bathtub. In his evidence, he called the incident an “accident”. After finding her in an injurious state, Barton tried to mop up the blood, fled the scene, and discarded the bloody towel, only to return to the hotel room soon thereafter at which point he called 911. His statements after the incident, to both friends and the police, suggested Ms. Gladue came to his hotel room and asked to shower in his washroom, where he found her dead the next morning. At the time, he denied any physical interaction with the deceased. At trial, medical evidence was called on behalf of the Crown and the defence. The Crown’s expert contended the perforation was caused by a sharp object, while the defence expert disagreed and opined that weakness in the vaginal structure was the operating cause of the injury.

The trial was heard before a judge and jury in the early part of 2015 and Mr. Barton was ultimately acquitted. An application was made by the Crown, during the trial, to admit “real” evidence in the form of the vaginal tissue of Ms. Gladue to assist in understanding the evidence of the medical expert who examined the tissue (R v Barton, 2015 ABQB 159 (CanLII)). Real evidence is directly observable by the trier of fact. Like direct testimonial evidence of a witness who has personally observed an event, it does not require the trier of fact to draw an inference from the evidence, should it be accepted. Unlike direct testimonial evidence of a witness, the trier of fact becomes the direct observer, acting, in some sense, as the witness to the event. This act of “direct self-perception” or “autoptic proference” as Wigmore described it (John Henry Wigmore, Evidence in Trials at Common Law, revised by John T. McNaughton (Boston: Little, Brown and Company, 1961) vol. 4 at 1150), occurs with all real evidence such as photographs, audio and visual recordings, electronic and hard copy communications or the spent cartridges of a firearm. Similarly, application can be made pursuant to section 652 of the Criminal Code, RSC 1985, c C-46  during the course of a jury trial, up until the verdict is rendered, for a “view” of “person, place or thing” located outside of the Courtroom. These direct observations made by the trier of fact become part of the evidence assessed at trial. Often, real evidence or direct observations by the trier can “speak for itself,” such as those spent cartridges but real evidence, in terms of how it fits into the narrative puzzle, is subject to interpretation. Either way, real evidence is admissible at trial if it is relevant and material to the case. Relevancy depends on authenticity. An item that does not reflect its true nature at the time of the incident is worthless and has no probative value. Applications to admit such evidence are usually, therefore, framed in authenticity terms: Is the item unaltered and unchanged? The application, in this instance, was opposed by the defence, not because the tissue was irrelevant or not authentic but because the prejudicial effect of such evidence before the jury would outweigh the probative value. This exclusionary discretion or gatekeeper function of the trial judge is an important safeguard in ensuring a fair trial while ensuring the truth-seeking function of the trial is not inappropriately compromised. This discretion is an example of the balancing done over the course of a trial. In the area of expert evidence, for instance, the trial judge has an ongoing duty to ensure such evidence stays within its scope to ensure trial fairness (White Burgess v Haliburton, 2015 SCC 23 (para 54) and in R v Sekhon, 2014 SCC 15 (para 46)). In this instance, the trial judge admitted the evidence, recognizing the probative value outweighed the prejudicial effect. It was, in the Court’s opinion, evidence to assist the jury in their consideration of the case. The trial judge also reminded the jury to decide the case fairly and dispassionately and not to base the verdict on an emotional response to the evidence. Although, as noted by the Court at paragraphs 127 and 128, standardized cautions to the jury without contextualizing the instruction to the facts of the case are meaningless.

This narrative of the admissibility of the tissue evidence highlights the balancing required throughout the trial in both the admissibility of evidence and the instructions to the jury. But this story of admissibility goes even further than the bounded space of the Courtroom. Ms. Gladue’s family was devastated with the decision to admit the tissue evidence. To the family, it was a decision that required their input and consent to protect Ms. Gladue’s dignity as an Aboriginal woman. To the friends and family of Cindy Gladue, she was “more than a statistic, more than an addict and more than a piece of tissue” (Death and Life of Cindy Gladue by Kathryn Blaze Carlson, May 15, 2015, The Globe and Mail). In the interview for the Globe article, Ms. Gladue’s mother emphasized that Cindy is “still human, she still has a name, not just ‘prostitute’.” This evidentiary application highlights the concern the Court of Appeal has in Barton with the approach this case represents: We in the justice system are attuned to categories of legal issues to which we must respond such as the admissibility of real evidence, the inadmissibility of bad character evidence, the proper use of circumstantial evidence and the correct legal articulation of the substantive law. We are not trained to be mindful of the larger view of the case which involves a self-assessment of how the case, in totality, presents. We are not recognizing that important societal values, some of which are Charter values, must also be reflected in the justice system. This includes the way we refer to a witness as a “prostitute” rather than a “sex worker” or even why that kind of labelling, done throughout the trial by all participants in the case (para 116) is required. We need to constantly ask ourselves when we prepare and present a case, “why”? Why do we need the witness to be called a “prostitute”? How does it advance the case? Is there another way of making our point that does not fall into stereotypes or is the notion simply not required as its sole purpose is just prejudicial and irrelevant? These basic questions are part of the Court of Appeal’s “re-setting” to the modern approach to the contextual appreciation of a case.

The facts of this case do not serve merely as the framework upon which the legal issues are placed but are the essence of this decision. Woven in between these facts are the legal issues, which, to extend the metaphor, become the fabric of our discussion in this post or the “unpacking” of the case. Typically, this term “unpacking” refers to an analytical unfolding of issues that are difficult to ascertain without some sort of roadmap or guide. In essence, “unpacking” suggests an opening up of the folded map or triptych to reveal the whole route. It requires us to also extend ourselves and to examine the big picture. In seeing the whole, we can then consider how these various packets of legal issues fit together to provide the final outcome. But “unpacking” can also mean what it says – that a journey has ended and it’s time to clean out the baggage. We are done but not finished as when we “unpack” we might re-fold in a different or better way or we may clean and re-start again. We may even discard. After reading Barton and after reflecting on it, this post is about both types of “unpacking”. As I have already suggested, we need to ask broader and deeper questions such as: What is the long view of this decision? Where does it lead us? What will it impel us to do?

Admittedly, all of this may seem too existential for a legal blog but as a practitioner and academic, I am enjoying the pure joy of reading a decision which challenges me to set aside a legal response and instead to think about the kind of justice system which appropriately reflects who we are as a society and who we want to be. It sparks a badly needed conversation about our approach to the law and whether it is approachable for all those impacted by it. I can’t say with certainty that I know what the justice system should look like or can look like but I can say that this is something that we all need to be engaged in because change requires hard work and dedication. It also requires all of us to step out of our comfort zone, which cases such as R v Jordan, 2016 SCC 27 (CanLII), and now Barton push us to do. However, change does not mean we give up what is essential to us as a country committed to Charter values. It simply requires us to be mindful of those values in fashioning our justice system. We should not be pressured into cutting corners or rights in the name of expediency. Rather, we should be scrupulous in our desire to see justice done. Complacency or leaving the status quo, be it trial delay or conviction of the innocent, is a dead end to nowhere. Only thought that leads to action makes a difference.

As I first suggested, the Barton decision is nuanced, providing layers of discussion: I suggest at least seven layers which interconnect. Looking at the first layer of the unpacking of issues, there is an overarching theme, which in my mind extends far beyond the case at hand, relating to instructing the jury in a clear, robust and frank manner. We in the legal profession too often rely on the probity of legal nomenclature to get us to where we are going (model jury instructions can be found on the National Judicial Institute website: https://www.nji inm.ca/index.cfm/publications/model-jury-instructions/). Barton reminds us that justice is not only for those in the know but is also for those who really don’t care to know until they are face to face with questions of justice. Clarity of thought, simplicity of explanation, and frank conversation go a long way to inform the non-legal partners in our justice system. To be truthful, this approach goes a long way for those legal minds who are in the know as well. I will call this approach to jury instructions, in legal language, the modern principled approach, which embodies the contextual approach approved of and utilized by the Supreme Court of Canada in other areas of law such as in statutory interpretation (para 21 of Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC)) and in the admissibility of hearsay (see R v Khan, [1990] 2 SCR 531, and R v KGB,[1990] 1 SCR 740 as the foundational cases). This approach is open to doing law differently, within the bounds of legal principles and within the context of the case at hand. To do otherwise would be to detach the decision-making from the unique narrative offered by each case.  

A modern approach to jury instructions sounds grand but in the context of Barton it finds meaning. This is where the Alberta Court of Appeal provides us with guidance and helpful exemplars for the fulfillment of the modern approach. A jury instruction must provide meaningful assistance to the jury by simplifying the complex law on sexual assault while recognizing no two cases are alike. The trial judge’s role is to also “unpack” by unfolding the trial narrative with the concomitant legal issues as they are relevant in the particular case. The trier must ask, is this a case involving consent or no consent? Or is it an issue where consent is given but vitiated? If so, on what basis is there such a vitiation? This deep dive into the facts, this modern contextual approach, requires the trial judge to specifically identify the essential nature of the offence. As discussed throughout Barton, the emphasis in the charge was askew. For example, the focus should not have been on the “application of force” as required for the “assault” element of the offence but on the “sexual activity in question” per s 273.1 of the Criminal Code, which defines consent for the purpose of sexual offences. As recognized in the decision, sex, which is in and of itself a legal activity, is by nature a touching. This case is not one where the accused denied the sexual conduct so the emphasis in the instructions on a finding of an “application of force” was confusing and unhelpful for the jury (para 189). Instead, the focus for the jury should have been on the amount of force used as an aspect of the sexual activity (paras 193, 194).

Creating a jury charge that fits the case is not the only function of this modern jury instruction approach. A modern principled approach requires balance in the instructions to the jury. But balance does not mean the traditional evidential and procedural safeguards are no longer necessary. Instructions on the presumption of innocence and on impermissible inferences must be part of the discourse between trial judge and jury. However, the trial judge, who must remain balanced in thought and impartial in aspect throughout the trial, has a duty to present all evidence in a fair manner. The accused is to be judged on the evidence and not on improper inferences arising from it. In the Barton case, the trial judge admonished the jury to not engage in “reasoning prejudice” or “moral prejudice” that occurs when a trier draws an inference that the accused was a bad person and worthy of conviction because he consorted with an “unsavoury” person, in this case a “Native girl” who was a “prostitute” (para 130). This classic limiting instruction is given to ensure any potential “bad character” evidence, which is presumptively inadmissible, is not used for that impermissible purpose (see R v Mack, [2014] 3 SCR 3; 2014 SCC 58 para 57).  But in this case, the concern to protect the potential “bad character” of the accused was not informed by the gate keeper function of a trial judge that aims to provide balance and fairness into the trial. Here, again, is the problem with the silo approach to law where case approach is embodied by a check-list of issues. By this one-sided appreciation of “prejudice” in this case, as only the accused person’s prejudice, the full meaning of trial fairness, as functionalized by the gate keeper function of the trial judge, was missing.

The missing instruction, according to the Barton Court, was the lack of instruction cautioning the jury to refrain from entering into similar reasoning or moral prejudice in assessing the status of the deceased as a female, Indigenous sex worker. Similar to the instruction regarding the accused, the jury should have been told not to draw the impermissible inference that because the deceased was a “prostitute”, she implicitly consented to all forms of sexual interaction by virtue of her profession (Barton paras 116-132). This connects to the further error, discussed later in this post, relating to the lack of a section 276 application regarding sexual history evidence. The jury would also have benefited from a direction that Ms. Gladue was not less “worthy” as a person because of how she was “labeled” or defined by society as a female, as an indigenous person, and as a sex worker. Defence counsel and Crown counsel in this case should welcome such instruction as it would completely neutralize any suggestion of “bad personhood” on the part of Barton. It would also humanize the case, placing it in real terms. As eloquently referenced in para 128 of the Barton decision, the case is about relationships between race, gender and status. It is also about the trial judge’s relationship with the jury, the relationships between all parties in the case and the relationships between the justice system and the community. These relationships are at the core of the criminal justice system. They are based on trust and confidence. In these relationships we expect a “fair” trial not a “fixed” one as emphasized by the Court of Appeal in Barton (at para 262).

This kind of instruction, I suggest, is also consistent with the Supreme Court of Canada’s position on the editing or excising of an accused person’s criminal record in R v Corbett, [1988] 1 SCR 670, 1988 CanLII 80 (SCC). There, the Court considered the prejudicial effect of placing an accused’s criminal record before the jury in a situation where the accused will testify, and the resultant moral and reasoning prejudice which may arise from the accused person’s prior criminal convictions. The concern is two-fold; that the jury will find that the accused is a bad person who has a propensity to commit crimes, and therefore likely committed the present crime and is therefore worthy of punishment and that such a prior record could distract the jury from their duty to determine guilt or innocence on the basis of the evidence before them. Although the Corbett Court recognized the discretion of the trial judge to edit or excise a criminal record to ensure trial fairness, Chief Justice Dickson cautioned that such application must not result in a “serious imbalance” where the Crown witnesses may also have previous convictions and where, as a result, their credibility is attacked (Corbett para 34). This requires the judge to look at the context of the case or the long view of the facts which would be before the jury to ensure the case was not reimagined unfairly and that the truth-seeking function of the Court remained intact. This application is an example of the exclusionary discretion or gatekeeper function of the trial judge I mentioned earlier in this post in which the focus is on trial fairness. The Alberta Court of Appeal in Barton was applying the same reasoning in calling for a more balanced and contextual approach in the jury charge.  

The second layer of issues in the case, which flow from the general concern with the jury instructions, are the numerous specific “traditional” legal errors in the charge identified by the Court. I am labeling these issues as “traditional” as they are the kind of legal errors in instructing a jury one regularly argues on a murder appeal. Here too, I would suggest, the errors are connected. For instance, as I will explain further, the misdirection and non-direction to the jury on the use to be made of the post-offence conduct is related to the misdirection on the “defence” of accident. In turn, these errors are compounded by the misdirection in the charge on unlawful act manslaughter and the inadequate charge on the two potential pathways (standard and Jobidon related as I will discuss later in the post) to manslaughter. I caution again that the purpose of this post is not to thoroughly discuss the legal niceties of these errors. These errors, however, serve to highlight the entanglement of issues found in this case.

Post-offence conduct must be approached by the trier of fact with caution to ensure such potentially damning evidence is considered in its proper context (see R v White, [1998] 2 SCR 72, 1998 CanLII 789 (SCC)). There are instances where an accused person’s actions after the incident “look suspicious” but are in fact consistent with an innocent explanation. Of course, it is within the purview of the trier of fact to accept or reject evidence and to determine the weight, if any, to place on evidence. However, as with impermissible character evidence, the trier of fact should not be concerned with evidence that has no probative value and merely distracts the jury from its duty to fairly and objectively assess the evidence. The concern with post offence conduct is the potential illogical “leap in logic” which can occur should the trier unreasonably infer guilt from evidence that merely “looks bad”. This does not mean that such evidence is presumptively inadmissible. On the contrary, post-offence conduct can be useful circumstantial evidence of guilt, of motive and of credibility, as noted by the Alberta Court of Appeal in Barton (paras 57-75). The misdirection and non-direction on the use of such evidence in Barton impacted the jury instructions on Mr. Barton’s position that what happened was an accident, as his “innocent explanation” seemed to negate a proper instruction on the use to be made of the post-offence conduct (paras 63-69).

The Court in Barton raises the “elephant in the room” concern, which is whether “accident” is a positive defence the jury will be specifically instructed to consider like self defence or duress (paras 184-293). Of course, such an instruction would only be given if the defence has an “air of reality.” This test requires the trial judge to determine “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit.” (R v Cinous, [2000] 2 SCR 3 paras 47 to 57) Without entering into a thorough discussion here on that issue, put simply, the Barton Court finds that there is no self-contained “defence” of accident as such a position merely negates the essential elements of a crime, be it actus reus or mens rea. Further, the characterization of the defence as “pure accident” in the charge (para 287) was inconsistent with Mr. Barton’s admission at trial that he repeatedly and forcibly entered Ms. Gladue’s vagina with his fist. I would add that even if “accident” is a “defence,” it is arguable whether, on the evidence, the defence had any “air of reality” such that it was properly placed for consideration before the jury. Further, this emphasis on “accident,” as it is mentioned enhances the error in misdirecting the jury on post offence conduct and on the mens rea for unlawful act manslaughter, which is based on an objective foresight of bodily harm per R v DeSousa, [1992] 2 SCR 944, 1992 CanLII 80 (SCC), and R v Creighton, [1993] 3 SCR 3, 1993 CanLII 61 (SCC). Additionally, the lack of direction on the objective dangerousness of Barton’s actions in the context of a manslaughter charge is in and of itself worthy of appellate intervention.

These “traditional” errors also led to the third layer of legal errors to be unpacked relating to the law of sexual assault, now so sadly prevalent in the appellate courts. These errors impact the substantive instructions on the law of murder and manslaughter, as the element of sexual assault causing bodily harm is integral to a proper understanding of the homicide instruction. This layer takes us back to the beginning as it reveals the fragility of the model jury instructions, the weaknesses inherent in a categorical “check list” approach rather than the modern contextual holistic approach, and the lack of a “humanity litmus test”, which reminds us that this case is about real people, whose voices (or lack thereof in Ms Gladue’s case) are being heard by real people. This set of errors impacts how we generally and traditionally approach the law of sexual assault but also reminds us of the need to step back and look at the case we are presenting and ask ourselves those “why” questions. For the Crown and the defence those “why” questions should be in the context of their theme/theory, strategic decisions including the thought processes on how to present the best and most effective case before the jury that promotes trial fairness. The Court in Barton identified legal errors in the instructions on the law of sexual assault but also in the manner in which the law of sexual assault was presented as part of a “boiler plate” or “fossilized” (para 8) instruction (paras 173-258).

This misdirection in the charge was preceded by and imbued with the missing procedure under s 276 of the Criminal Code or what is known as the “rape shield” law (paras 85-153 of Barton and for further discussion see R v Seaboyer;R v Gayme, [1991] 2 SCR 577). Again, this fourth layer of error relates to the admissibility of evidence that may lead to impermissible, prejudicial, and illogical inferences. Section 276 prohibits evidence whose sole purpose is to perpetuate the “twin myths” (para 89) relating to sexual assault complainants that prior sexual conduct, including being a “prostitute,” means consent was present at the time of the offence and that prior sexuality is a form of “bad personhood” making such a person of “loose morals” less credible. This prohibition is to ensure trial fairness and balance. The same balance that requires the instructing judge to remind the jury that Ms. Gladue, like all people in the justice system—the accused, the lawyers, the witnesses—must be treated with dignity and respect. A person is not to be “judged” by race, sexual orientation, gender or profession.

An application to use prior sexual history evidence for purposes other than the prohibited twin myths relating to consent and credibility is required whenever the accused is tried on a sexual assault charge. However, s 276 does not specifically reference homicide, which requires, according to s 222(5), an unlawful act. Such an unlawful act can be sexual assault or as in this case, sexual assault causing bodily harm. The Barton Court interprets the s 276 requirement that the application is engaged “in proceedings in respect of an offence” as including a homicide, where the underlying act is a sexual offence. This interpretation, using the modern approach as defined by Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, 1998 CanLII 837 (SCC), is consistent with the purpose and objective of the section. To interpret it otherwise would present an absurdity and would be contrary to Parliamentary intention in creating the protection under s 276. The section provides a mechanism whereby the accused can apply to have such evidence admitted if it is connected to a relevant matter that goes beyond the realm of myth and is needed for fair trial purposes and to fulfill the accused’s right to full answer and defence under s 7 of the Charter.

The fifth area to unpack is the obiter comments found in the reasons. There are three areas of concern involving, as already discussed, whether there is a recognized stand-alone “defence” of accident (paras 284-293), the use of public policy in defining or confining consent pursuant to Jobidon, and a call for clarification of the “reasonable steps” requirement for mistaken belief in consent under s 273.2(b). All three of these concerns are valid and worth investigating, particularly the continuing struggle to reconcile R v Jobidon, [1991] 2 SCR 714, 1991 CanLII 77 (SCC), with the much-changed legal landscape on the matter of consent since its release 26 years ago (paras 301-310 and for further discussion see my previous post on Jobidon). Again, these discussions require a detailed response for a later date, however, I would like to acknowledge the pressing issue of the clarification of the “reasonable steps” requirement as raised in Barton (paras 294-300). Section 273.2 enumerates situations where the accused in a sexual assault case cannot rely on the defence of mistake of fact in consent.  Under subsection (b) the mistaken belief in consent defence is unavailable where the accused does not take reasonable steps to ascertain consent. Soon after the release of Barton, the Supreme Court of Canada released R v George, 2017 CanLII 24267 (SCC), involving a charge of sexual interference under s 151 where the accused was 35 years of age and the complainant was 14 and a half years old. Section 150.1(4) of the Criminal Code prohibits a mistake of age defence unless the accused took “all reasonable steps”. In the George case, the Court found that where there is an air of reality to the defence of mistake of fact, the burden is on the Crown to prove beyond a reasonable doubt that either the accused did not honestly believe the complainant was at least 16 or the accused did not take all reasonable steps to ascertain the age of the complainant. Considering the similarity in wording with s 273.2, as recognized by the Barton Court, this obiter issue, which was not raised in the Barton appeal, becomes even more pressing to consider (para 294).

The sixth unpacking involves the notion of appellate review of an acquittal. Section 676(1) of the Criminal Code confines an appeal against acquittal by the Attorney General to a question of law alone. This limitation arises from the core values of our justice system. As articulated by Justice Wilson in the majority decision of R v B(G) [1990] 2 SCR 57, 1990 CanLII 115 (SCC) at 66, the restricted appellate review “reflects the fundamental principle that an accused is presumed to be innocent until proved guilty by proof beyond a reasonable doubt”. In B(G), Justice Wilson reviewed what the term “question of law” entails. Although factual errors alone, as in an unreasonable verdict or sufficiency of the evidence, would not amount to a question of law, a misapprehension of fact could be if it amounted to a misdirection on the law (pages 70-72). Throughout Barton, the Court is careful to characterize the errors as irreversible misdirections and non-directions of law.

As raised earlier in this post, the recent Supreme Court of Canada George decision may have an impact on the obiter legal issues raised by the Court in Barton on the clarification of the “reasonable steps” requirement for a defence of an honest belief in consent under s 273.2(b) of the Criminal Code. George was a case of an appeal against acquittal and it is the comments on the jurisdiction of appellate review of an acquittal, which may pose further discussion points in the review of the Barton decision. For the appellate Court to intervene in an appeal against an acquittal, there must be an error in law and that error must materially impact the not guilty verdict. The threshold for such materiality is quite high. There must be at least an error that with a “reasonable degree of certainty” has a material effect (George para 27). In paras 6 and 52 of the Barton decision, the Court suggests the identified legal errors “might reasonably” have a material bearing on the outcome, which could suggest too low of a threshold. However, later in the reasons the Court clearly finds the specific legal errors did have a material bearing on the acquittal. In any event, although it might seem like semantics, I could see an argument made on a further appeal that the threshold they used was too low. Additionally, the Court in George discussed the concern with conflating what are factual issues with legal issues, whereby the “legal” errors are actually factual ones (George para 17). Again, it would be difficult to suggest the Barton Court entered into the same error. 

A final comment to make, the seventh unpacking, is a connection I see with some of the research I have been doing on the evolving role of the trial judge in a criminal case as the trier of fact, the arbiter of the law, and the gate keeper and guardian of the courts, and the impact the sense of community or societal values is having on this “enhanced” version of the trial judge. I jokingly refer to the new and improved vision of the trial judge as “gate keeper on steroids” but really a trial judge does not sit alone but sits in the heart of the community of justice. It is the relationship or connection between all individuals in the criminal justice system which interests me and which I believe profoundly impacts the way the courts impart justice. It also, in my view, explains why we are now struggling, in an existential way, with our conceptions of what the justice system should be. Cases like Barton, Jordan and even older cases such as R v Anthony-Cook, [2016] 2 SCR 204, 2016 SCC 43 (CanLII), R v St-Cloud, [2015] 2 SCR 328, 2015 SCC 27 (CanLII), and R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), signal a new modern approach to criminal law. If this is so, then we need to be prepared to answer the issues raised in those cases, to be modern in our aspect and approach while continually ensuring the fundamental values embodied in our presumption of innocence and fair trial principles are not diminished and remain central to that modern approach.

The Barton decision is fresh and challenging. It will impact, not only the re-trial of this case but also future cases and has already been cited in a recent Alberta Court of Appeal decision (R v ARD, 2017 ABCA 237 at para 57). We are put off balance by the intricacies offered by the decision but then only until we re-adjust to a new balance. The unpacking we have just undertaken is a step toward discussion and review of what has been done in the past and whether the past can be a jumping off point that, as the Court recommends in Barton, allows for a “re-setting” to the modern approach.

 

 

Some Initial Thoughts on the Senate Report on Criminal Justice Reform

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

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

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

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

56 Every one who wilfully

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

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

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

is guilty of an offence punishable on summary conviction.

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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

Also posted on the Ablawg.ca website.

 

Episode 46 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 51 – Intimidating Parliament or Legislature

In this episode, we will continue to acquaint ourselves with Part II – Offences Against Public Order – by considering s. 51 Intimidating Parliament or Legislature. It is a section within the theme of the previous sections, starting from section 46, which prohibit treasonable activities. It reads as follows:

Every one who does an act of violence in order to intimidate Parliament or the legislature of a province is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

The section also intersects with other statutes. In the federal Citizenship Act, a conviction under s. 51 disentitles a person from Canadian citizenship as does a conviction for a terrorism offence under the Code as well as a conviction under s. 47 (“high treason” as discussed in episode 43 of this podcast series) and s. 52, sabotage, the next section in this podcast series.  Oddly enough, a conviction under s. 52, among numerous other Code sections, may act as a barrier to applying for various kinds of bingo licences in Quebec as per sections 36(3), 43(2), 45, 47(2), 49(2), and 53(1) of the Bingo Rules, CQLR c L-6, r 5.

The section does not define the phrase “act of violence” nor the term “intimidate.” “Violence” is not defined anywhere in the Criminal Code and has been subject to judicial interpretation. The term is difficult to define as it is an oft-used word with an unspoken and assumed societal meaning. This meaning is imbued with societal mores and values and is therefore not strictly legal. In other words, in the everyday context, the term does not need interpretation or elucidation. Due to this ephemeral nature of the term, there is no ordinary and grammatical meaning for purposes of statutory interpretation. Re-enforcing this problem is differing dictionary meanings. As a result, the definition of violence could be viewed as harm-based, whereby the focus is on the acts that a person uses in an attempt to cause or actually cause or threaten harm. Or it could be force-based, which focuses on the physical nature of the acts and not the effects.

This discussion was at the core of the 2005 Supreme Court of Canada case, R v CD; R v CDK. There, the court considered the meaning of “violence” as used in the s. 39(1)(a) of the Youth Criminal Justice Act, which permits a custodial disposition where the youth is convicted of a “violent” offence. The majority preferred a harm-based approach that would produce a more restrictive definition of violence consistent with the objectives of the young offender legislation to only incarcerate as the last resort. Later in the 2014 Steele decision, an unanimous panel of the Supreme Court of Canada approved of the harm-based approach in interpreting violence, in the context of the “serious personal injury requirement” for a long-term offender determination. In the Court’s view, this approach was consistent with the context of the term as used in the Criminal Code, particularly offences such as threaten death under s. 264.1, where the act of threatening death or bodily harm was in and of itself violent. (See R. v. McRae). This discussion can therefore lead us to define “act of violence” under s. 51 as harm-based as well and therefore would include threats of violence.

Interestingly, there may Charter implications to this section as the “acts of violence” could be considered an expression under s. 2(b) of the Charter, particularly where the act is a threat of violence by words or writing. However, as discussed in the Supreme Court of Canada Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.) decision, s. 2(b) would likely not protect expressions of harm or violence. Of course, the justiciability of this argument may be based on the factual underpinnings of the charge.

The term “intimidate,” although not defined in the Code, is also subject to much judicial consideration. Unlike the term “violence,” “intimidation” does have a fairly consistent dictionary definition. Additionally, the term is used in other offences in the Code, most notably “intimidation,” where to intimidate is itself an offence under s. 423. The online Oxford Dictionaries define “intimidate” as “frighten or overawe (someone), especially in order to make them do what one wants.” Comparably, the Merriam-Webster Dictionary defines it as “to make someone afraid... especially to compel or deter by or as if by threats.” The British Columbia Supreme Court in the 2002 Little case used the Oxford Dictionary definition in assessing the voluntariness of an accused person’s confession. The 2013 Saskatchewan Provincial Court decision of Weinmeyer has an excellent overview of the authoritative definitions of the term. The court in that case was considering a charge of uttering threats under s. 264.1 of the Code. Although “intimidate” is not a word used in the section, courts have looked at intimidation as an element of the conveyed threats. After reviewing the case law on the meaning of intimidation, Agnew PCJ found at paragraph 18 that:

“the essence of intimidation is the use of action or language to overawe or frighten another, with the intention of causing that person to change their course of action against their will.  This change may be to undertake an action which they would not otherwise have done, or to refrain from doing something which they would have done in the absence of such action or language, but in either case the intimidator intends that the recipient not act in accordance with their own wishes, but rather in accordance with the intimidator’s wishes; and the intimidator employs menacing, violent or frightening acts or language to cause such change.”

This definition is also consistent with the elements of the s. 423 offence of intimidation. It should be noted that the offence of extortion, contrary to s. 346 of the Code has similar elements to intimidation and may overlap with a s. 51 charge as well.

In terms of the fault element, s. 51 requires the prohibited conduct (an act of violence) be done for a specific purpose ulterior to the violence, namely for the purpose of intimidation. This would require the Crown prosecutor to prove a high level of subjective intention.

Looking at s. 51 as a whole, it is apparent that the offence is an intersection between extortion/intimidation sections and treason/terrorism sections. Historically, the section came into our first 1892 Criminal Code under s. 70 as a conspiracy crime to intimidate a legislature. That offence read as “every one is guilty of an indictable offence and liable to fourteen years' imprisonment who confederates, combines or conspires with any person to do any act of violence in order to intimidate, or to put any force or constraint upon, any Legislative Council, Legislative Assembly or House of Assembly.” It was based upon a similarly worded offence found in article 66 of Burbidge’s Digest of Criminal Law of Canada published in 1890. As an aside, Burbidge’s Digest was the Canadian version of Sir James Fitzjames Stephen’s Digest of the Criminal Law of England. Stephen was, as mentioned previously in these podcasts, the founding father so to speak of our Code as he supported criminal law codification in the UK. George Wheelock Burbidge was a Judge of the Canadian Exchequer court, the precursor to the Federal Court of Canada. Early in his legal career Burbidge was involved in the drafting of the consolidated statutes of New Brunswick. He later became the federal deputy minister of justice and as such was instrumental in devising the consolidated statutes of Canada. Returning to s. 51, in the 1953-54 amendments to the Code, the offence was revised to the wording we have today.

Despite the longevity of this section as an offence under our laws, I could find no reported case directly involving a charge under this section. Consistent with the terrorism/treason aspect of this charge, there are recent cases, involving terrorism offences, which do consider this section. A unique use of this section occurred in the 2005 Ghany case, a bail application in the Ontario Court of Justice before Justice Durno. There the defence argued that as the terrorism charges facing their clients involved an aspect of s.51, which is an offence subject to s. 469, the bail should be heard before a Superior Court Judge. Section 469 gives Superior Court Judges exclusive jurisdiction over a list of offences for purposes of bail and trial procedure. These listed offences are deemed the most serious in our Code and pertain to murder and treason but does not refer to terrorism offences. The argument did not turn on the list of offences under s. 469 jurisdiction but rather on the conduct or substance of those named offences. This position is particularly attractive considering the creation of s. 469 authority was created well before the advent of terrorism crimes. In the end, Justice Durno declined jurisdiction and dismissed the application.

Considering current lack of use, the future of this section is questionable. This is particularly so in light of the various other offences for which a person can be charged instead of this crime, such as intimidation or terrorist activity. This is certainly a section worthy of reform and one to watch in the future.

The Probative Value of Technological Evidence (Revised)

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

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

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

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

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

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

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

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

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

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

On The DLW Decision and The Meaning of Modernity

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

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

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

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

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

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

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

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

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

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

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

 

 

Episode 45 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 50 Assisting the Enemy and Failing to Prevent Treason

Section 50 continues our discussion of prohibited acts under the Part relating to offences against the public order. Section 50 contains two separate offences: assisting an enemy of Canada to leave the country without consent of the Crown and knowingly failing to advise a peace officer or a justice of the peace of an imminent act of treason. The full section reads as follows:

50(1) Every one commits an offence who

            (a) incites or wilfully assists a subject of

                        (i) a state that is at war with Canada, or

(ii) a state against whose forces Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the state whose forces they are,

to leave Canada without the consent of the Crown, unless the accused establishes that assistance to the state referred to in subparagraph (i) or the forces of the state referred to in subparagraph (ii), as the case may be, was not intended thereby; or

(b) knowing that a person is about to commit high treason or treason does not, with all reasonable dispatch, inform a justice of the peace or other peace officer thereof or make other reasonable efforts to prevent that person from committing high treason or treason.

These offences are indictable and pursuant to subsection 2 of the section, the maximum punishment is fourteen years incarceration. As is evident from the wording of the section, these offences are closely aligned to treason and treasonable acts. Indeed, the offence of failing to inform on a person about to commit treason is essentially an offence of being an accessory or party to the treason, either before the fact or after. Originally, this section in the 1892 Criminal Code was worded to that effect. The change came in the 1915 amendments, most likely as a result of World War One, when the offence of assisting an “alien enemy” was added immediately after the offence of accessory section. In 1927, the two offences were combined under one section. Finally, in the 1953-54 amendments to the Code, the specific reference to accessory was deleted and the section was re-enacted as it stands today.

Needless to say, I have been unable to find any reported decisions on this section other than a reference to the duty to report under s. 50(1)(b). In the 1990 Dersch case, the BCCA considered the seizure of blood samples in a case of suspected impaired driving where the accused was unconscious when the samples were taken for medical purposes. The issue of confidentiality of medical information was considered with the acknowledgement that such confidentiality was subject to exceptional circumstances such as a statutory duty to report. Section 50(1)(b) was cited as an example of such an exceptional situation.

The mens rea requirements for this section is of interest. It could be argued that both offences under this section require a high level of mens rea. In s. 50(1)(a) the use of the word “wilfully” suggests the requirement for a high level of subjective liability, which does not include recklessness. However, the term “willfully,” does not necessarily denote a high level of subjective mens rea as per the 1979 Ontario Court of Appeal case of Buzzanga and Durocher. The contra-argument would rely on the context of this offence, including its connection to treason and the severe punishment attached to conviction, as support for a high level of mens rea. But, s. 50(1)(a) reverses the onus of proof onto the accused by requiring the defence to “establish” that the assistance rendered was not intended. This reverse onus would certainly be subject to a Charter argument under s. 7 and s. 11(d). The mens rea requirement for s. 50(1)(b) is easier to discern as it requires the accused to have knowledge of the expected treason, which clearly requires proof of a high level of subjective liability by the Crown.

Although this section has been historically underused, considering the rise in alleged acts of terrorism, there is a possibility the section could be used in the future. There could be an argument that members of certain terrorist groups are in fact “at war” with Canada and a further argument that these groups in some ways constitute a “state” for purposes of the section. In fact, some of these groups do identify as such. However, in light of new legislation, both within the Code and through other federal statutes, relating to this area, it is more likely the government will prefer to lay charges under this newer legislation, which provides a broader basis for conviction. Probably the best indication of the viability of this section is whether or not it remains in the Criminal Code, in its present form, after the much anticipated government review of the Criminal Code.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

In Praise of the Passionate Lawyer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Episode 41 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 43 - Correction Of A Child

 

Section 43, correction of a child by force, is another section of the Code, which protects those people who use force in certain limited circumstances. Indeed, the heading for this section and the next section 45 is entitled Protection of Persons In Authority. Section 43, and for that matter s. 45, are not sections protecting peace officers but are designed to protect people who may use force as a result of a relationship he or she may have with the recipient of the force. In the case of s. 43, the relationship is parental or quasi-parental as between a child and a parent or a child and a schoolteacher.

Let’s read the section in full:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

I am sure many of you reading this or listening to this podcast might be a little surprised that this type of protection is in the Code. The idea of hitting a child, be it a parent or worse a teacher, seems out of step with the fundamental values of our society and a throw-back to when age-based relationships were construed as hierarchal and power driven. As we will explore in this podcast, the Supreme Court of Canada acknowledged these concerns but in the final analysis the Court found there is a place for such a section in the Code, albeit in limited circumstances. In this podcast, I intend to explore some of these issues, which might give us pause for thought in assessing whether this section is a relic of the past or not.

Section 43 was thoroughly canvassed in the 2004 Supreme Court of Canada case Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76. The opening statement of the majority decision, authored by Chief Justice McLachlin, speaks volumes on the essence of the defence:

The issue in this case is the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force in some circumstances without facing criminal sanction.

The phrase “minor corrective force” envisioned by the Chief Justice adds clarity to the Court’s characterization of the defence as permitting “reasonable physical correction.” Essentially, it is this formulation of the defence, equating “reasonable” with “minor” force, which saves the section and places the defence in a neat continuum of what is acceptable and was is not acceptable societal behaviour.

I will not go into the niceties of the s. 7 arguments in the case, although I highly recommend those listening to this podcast to read the full decision as the argument presented to the Court takes a fresh approach to the protections found under s. 7 through the perspective of the victims or recipients of the force, in this case children. It is highly illustrative of the unique and persuasive arguments, which are available under the Charter.

The case also highlights the emotive issues involved by viewing the constitutionality of the section through the lens of another legal phrase often conjured in cases involving children: the “best interests of a child.” In what manner this phrase applies in the criminal law context is an interesting discussion, which requires a full blog posting. In any event, as found by the majority, the concept may be a legal principle but at least in 2004, it was not a principle of fundamental justice as required for the application of s. 7.

Let’s turn to the essential requirements of s. 43, as interpreted by the Supreme Court of Canada. First, the section requires the force used to be for the purpose of correction/discipline. Such acts would be “sober, reasoned uses of force” that “restrain, control or express some symbolic disapproval” of the behavior. Although this element is understandable, the allowance for force to “express some symbolic disapproval” is a puzzling concept in the legal arena. Certainly the symbolic use of force is used in the broader context of military expression, such as retaliatory strikes. However, the symbolic nature of that force seems to be based on generating fear and domination over a populace. In the context of s. 43, it becomes difficult to envision force as a symbolic expression other than, as an example, an antiquated response to foul language – washing a child’s mouth out with soap or tugging on an ear to show disapproval. Whether or not this kind of symbolism can truly be viewed as “sober, reasoned uses of force” remains open to debate.

The second requirement, which takes the perspective of the recipient of the force, is the need for the child to benefit or learn from the forceful act. If a child is too young or developmentally challenged, use of force, even if for corrective purposes, is not appropriate and s.43 defence cannot be used.

Next, the Court must consider whether the force used is reasonable in the circumstances. The “reasonableness” of the force is delineated by reference to what is acceptable in society by looking at international standards and expert opinion. Again, corporeal punishment used on a child under 2 years of age is considered harmful, as may be such punishment on a teenager. The majority also considered force used to the head area as inappropriate. Additionally, using a belt or implement to apply force is unacceptable. In the end, reasonableness under the section is constrained by who is receiving the corrective punishment, the manner in which the punishment is being applied, and the target area of that force.

In the case of teachers, any type of corporeal punishment used - what comes to mind is the application of a ruler to the hand - is not reasonable force. Teachers, however, may need to remove a child or restrain one but any other force, even I would suggest “symbolic force,” is not acceptable.

In the end, the Chief Justice viewed the section as a necessity in the realities of family relationships when she stated at paragraph 62:

The reality is that without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute “time-out”.  The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

This above recognition of the limits of the criminal law, limits which we as a society desire and need in order to maintain our fundamental social constructs, really does define this section as it is presently applied. In fact, I represented a client who was charged with assault as a result of restraining a teen, who was acting violently and was under the accused’s care. It was this section, which provided the litmus test and ultimately resulted in his acquittal.

More controversial, however, is the use of the section where punishment is meted out on the basis of cultural or religious norms, which differ from “Canadian” norms. In those instances, what may be acceptable punishment in the accused’s social circle may not be acceptable in the broader Canadian view. In the dissenting decision of the Canadian Foundation for Children case, Justice Arbour raised this possible dichotomy in support of the position that the concept of “reasonableness” under the section is more of a moving target and less of an articulable standard. She commented in paragraph 185 that:

Corporal punishment is a controversial social issue.  Conceptions of what is “reasonable” in terms of the discipline of children, whether physical or otherwise, vary widely, and often engage cultural and religious beliefs as well as political and ethical ones.  Such conceptions are intertwined with how other controversial issues are understood, including the relationship between the state and the family and the relationship between the rights of the parent and the rights of the child.  Whether a person considers an instance of child corporal punishment “reasonable” may depend in large part on his or her own parenting style and experiences.  While it may work well in other contexts, in this one the term “reasonable force” has proven not to be a workable standard. 

Finally, I leave this podcast with a more esoteric or philosophical view. As touched on by the Chief Justice, the truth behind this section, and all of the sections, which justify the use of force, may not reflect the kind of society we truly want: we want a society free of violence and the threat of violence. However, the reality is that even our rule of law carries with it an aspect of violence. As Walter Benjamin opined in his “Critique of Violence,” not only is violence the means to preserving the Rule of Law, “Law-making is power-making, assumption of power, and to that extent an immediate manifestation of violence.”

This concept is further explored in Robert Cover’s electrifying article entitled “Violence and the Word,” which reminds us that whenever the justice system metes out punishment or even pronounces a judgment, a person is coerced to do something they do not want to do. In some instances the force is minimal, in others it involves a total loss of liberty. It is this use of force, which we try to contain, hoping its use will be based on reason and equity. Yet this “force” still remains part of what we would all consider a well-run society and fundamental to the justice system.

Section 43, albeit a seemingly simple defence is in reality a section, which causes one to re-think the meaning of force and its place in today’s society. It has been more than a decade since the Court has expounded on this section. As a result, it will be interesting to see how this section holds up to the ever-evolving societal conceptions of law’s function in our private relationships and law’s responsibility to protect vulnerable members of our society.

For more on Robert Cover, read my previous blog discussing his work here.

 

As Posted on ABlawg Website: Regina v Borowiec On Infanticide: Does the Crime Fit The Times?

The following blog also appears at the University of Calgary, Faculty of Law blog website at ABlawg.ca

In a few weeks the law school will be humming with activity as the newly admitted 1L students start learning the Law both in doctrine and in practice. One of the core first year courses is criminal law, which provides the future lawyer a realistic snapshot of the complexities of both areas. Here, in criminal law, they will not only gain knowledge of the prohibitions, rules, and procedures as found in the Criminal Code but also the interpretations and practices as found in Common Law. They will discover that criminal law is not about cut and dry legalese but is, at its core, about how we as a nation see ourselves and the kind of society we want to live in. It is also about ordinary people who are impacted by the decisions made by courts every day.

 

The key to understanding and appreciating criminal law is in the deeper discussion of the purpose of criminal law and why we as a society prohibit certain behaviors and not others. Sometimes this discussion of “why” is easy: we can agree that certain types of conduct such as stealing, murder, and assault are worthy of sanction. But we have a more difficult time in agreeing on what this prohibited conduct looks like and, therefore, what we should do about it. To answer these questions, criminal law jurisprudence considers all of these weighty issues in the context of the rule of law. It is this intersection of law and societal values, which makes criminal law so legally interesting and yet so socially conflicting. The recent decision in Regina v Borowiec, 2015 ABCA 232, from the Alberta Court of Appeal on infanticide is an excellent example of these tensions and the difficulty the courts have in harmonizing these issues.  It is also a stark example of the reality that in some respects our criminal law is clinging to the past and in desperate need of reform.

Although homicide has been “on the books” so to speak since the inception of our Criminal Code in 1892, infanticide came to us through a 1948 amendment, which mirrored earlier changes made to English law. The then s. 262(2), deemed a woman, who willfully caused the death of her newly-born child, not guilty of murder or manslaughter but of the newly created offence of infanticide if at the time of the act or omission “she had not fully recovered from the effect of giving birth” resulting in the “balance of her mind” being “disturbed.” Later, in a 1954 amendment, the offence was broadened by offering another reason for the “mind being disturbed” by conceding infanticide could also occur when the “female person” was not fully recovered from “the effect of lactation consequent on the birth of the child.” Additionally, the word “balance” in the phrase “balance of her mind” was deleted.

The 1954 amendments also added the now s. 663 of the Criminal Code, which was not found in the English legislation. This section ensures that if a woman was charged with infanticide but was not suffering from a mental disturbance and yet intentionally killed her child, she could still be convicted. This section is not in issue in the Borowiec case, however, as mentioned by Justice Doherty in Regina v L. B., 2011 ONCA 153 (at paras 84 to 87), the constitutional implications of this section are troubling and worth noting. What is of import is the wording of s. 663, which still retains the English legislative nomenclature requiring a disturbance of the “balance” of the mind. This slight but significant difference will be explored later as it impacts the Borowiec decision.

Infanticide is now one of the three ways homicide is culpable or blameworthy. Homicide or the killing of a human being is culpable when the conduct amounts to murder, manslaughter or infanticide as per the Criminal Code sections. Unsurprisingly, all three categories of homicide have similarities and differences in terms of: a) the conduct or actus reus required, b) the fault element or mens rea required, and c) the punishment imposed upon conviction. But, as with all related areas, it is difficult to parse the differences between them when the conduct is on the boundaries.

To assist in this discussion, lawyers and the courts look to the rule of law as established by precedent and informed by statutory interpretation. However, in the field of criminal law, this time-honoured legalistic approach must be further informed by the purpose or reason for using the criminal law in the context of the offence. In the case of infanticide, the conduct and fault element is difficult to ascertain and the section outlining the crime is mired in archaic language based on out of date policy and dated science. For instance, the concept of “lactational insanity,” which drove the English legislation as mirrored in our 1954 amendments, is straight out of the Victorian Age  and is no longer considered medically valid. When the crime does not fit the times it becomes hard to determine whether or not the crime reflects current societal interests and values.

These conflicting issues are clearly seen in the Borowiec case. According to the evidence, between 2008 and 2010, Meredith Borowiec was pregnant three times and each time she hid her true condition from her boyfriend, family and work colleagues. She gave birth, on her own, and subsequently abandoned each child in a garbage dumpster. Her actions came to the notice of the authorities when the last child was rescued from the dumpster. She was ultimately charged with two counts of second-degree murder and one count of attempted murder, to which she later entered a plea of guilty to the lesser offence of aggravated assault. At her murder trial, defence counsel raised infanticide as an alternative to murder, calling psychiatric evidence in support. The prosecutor also called psychiatric evidence to establish that the conduct did not amount to infanticide and was in fact murder. The trial judge reviewed the conflicting evidence in light of the Code provisions and case law and found Meredith Borowiec not guilty of murder but guilt of infanticide.

The case was followed closely in the media and attracted much attention. Upon her conviction for infanticide and the imposition of the total sentence before credit for time served of four and a half years, there was a public outcry with one journalist opining that it was “open season” on unwanted infants. Still other views showed sympathy for the accused, citing her mental health issues and lack of support while pregnant as mitigating factors.  In fact, infanticide, according to the literature in the area (see for example, Chapter 7 of the 2013 book entitled History of Infanticide in Britain, C. 1600 to the Present by Professor Anne-Marie Kilday), does provoke very stark conflicting public emotions and has done so for hundreds of years. In this context, the Borowiec decision provides a glimpse into the legal response to a very provocative social issue.

The Crown appealed the infanticide convictions and in a split decision, the Alberta Court of Appeal upheld the decision. On appeal, the court considered three grounds of appeal. Remember, this was a Crown appeal and according to s. 676 of the Criminal Code a Crown appeal can be based only upon issues of law. The first issue asked whether or not the trial judge erred in law in his application of the law of infanticide. The second somewhat related issue asked whether the trial judge erred in his assessment of the conflicting expert evidence. The third issue, which will not be discussed in this commentary, is whether or not the reasons of the trial judge were sufficient. Justice Cote and Justice MacDonald for the majority found that the trial judge did not err in his application of the law of infanticide pursuant to the requirements of the section. Although they found some problems with the assessment of the conflicting evidence of the expert witnesses, in their view the error was not a question of law but of fact and therefore could not form the basis of a Crown appeal. The dissent, authored by Justice Wakeling, disagreed with the majority on the first issue finding that in law the trial judge did err in his appreciation and application of the infanticide requirements as required by section 233.

The majority reviewed the history of section 233 and the roots of the offence in English law. In their view, Parliament enacted the section as a legal and social compromise. Prior to legislating the offence, a mother charged with the death of her newly born child would be charged with murder and faced a possible death sentence. As a result, specious acquittals occurred as the members of the jury were not prepared to send a mother to death for the crime, particularly if there were extenuating circumstances. However, these circumstances fell short of a disease of the mind and therefore could not amount in law to a valid s. 16 or insanity defence. In response, England initially enacted the Infanticide Act, 1922 and then after subsequent amendments, enacted the Infanticide Act, 1938, which carved out a singular offence within the homicide spectrum. For an excellent and erudite discussion of infanticide’s historical beginnings, see Justice Doherty’s opus in R v L.B. (at paras 64 to 104). In this historical survey Justice Doherty explains the intricate Canadian infanticide experience by tracking the various amendments made to the now s. 233 and the other complimentary sections such as s. 663.

Upon review of the historical purpose and changes to the section, the majority listed the applicable elements of the offence or as in the Borowiec case, what was raised by the defence as a possible lesser verdict predicated on the evidence. The court described the requirements of the section that the accused a) be “not fully recovered,” b) that “her mind was then disturbed,” and c) that the disturbance be from the “effects” of childbirth or by the reason of “lactation” as “extremely woolly” (at para 31) and not representing “established” medical terminology.

It is in the legal application of the section, specifically the requirement the accused’s mind be “disturbed,” which the Court of Appeal focused on in addressing the first issue. In other words, does this term “disturbed” reflect an articulable standard and if it does, what does that standard look like as a legal principle? Put another way, what is the extent to which the accused must be “disturbed” in order to fulfill the prerequisites of the section? This problem – where to draw the line in criminalizing conduct – is a familiar one in criminal law. For instance, in the case of negligence based crimes, the courts spent decades trying to determine the appropriate level to which an accused must be negligent, finally coming to the “substantial and marked departure” from the norm as the test for the offence of criminal negligence under s. 219 but preferring a lesser standard of “marked departure” for other negligent based offences. But where does infanticide reside in the continuum of murder, manslaughter, criminal negligence and accident? More specifically, how does the “disturbed mind” requirement impact this discussion?

Added to the difficulties of delineating boundaries between differing conduct is the argument made by the Crown on appeal that what infanticide requires is not just evidence that the accused mind is disturbed but rather evidence that the “balance” of her mind was disturbed, which, in the submission of the Crown, suggests a higher standard than a mere disturbance. This argument is based on a rather puzzling aspect of the infanticide related sections. Although the infanticide section itself, pursuant to s. 233, refers to “disturbed” only, other related sections such as s. 663, the assessment order section 672.11(c), under the “Mental Disorder” Part XX.1, and s. 672.21(3)(d), also under Part XX.1, refer to the “balance of the mind” in relation to infanticide. Although the Part XX.1 sections are fairly recent, in the Criminal Code sense, having been enacted in 1991, s. 663 was added to the Criminal Code in the 1954 amendments, which also deleted the reference to “balance of her mind” in the infanticide section s. 233.

The majority deftly rejected this argument, finding, in paragraph 50, it was “unlikely that Parliament intended any significant difference” between the two phrases. In the Court’s opinion, it would make no sense to require a different standard for these sections and as Parliament has had ample opportunity to fix the difference in language, it must mean there is no difference.

Although the Court does not delve into the niceties of the difference in language found in the various sections, still a more robust application of the principles of statutory interpretation would have been in order. For example, the word “balance” does connote an ability to remain in control or have “mental and emotional steadiness” as per the Merriam-Webster definition and as understood by the related term of being “off-balanced.” Additionally, the UK legislation retains the phrase “balance of her mind.” The Court did not discuss the significance of this or the impact of this phrase in the English context.

Of course, besides the possible different legal meaning the addition of the word “balance” could have, it is likely the Crown had another reason to pursue the importance of the word. The Crown’s forensic psychiatrist at trial relied upon the term, “balance of her mind,” and the trial judge pointedly corrected the nomenclature as not consistent with s. 233. No doubt the psychiatrist was more comfortable with the usage of the phrase as it related to the assessment sections of the Criminal Code rather than the offence section and does illustrate the confusion the different wording invokes.

In any event, the majority preferred to defer to Parliament to lend any further guidance on the issue. The best the majority could do was recognize the “need for some standard” (at para 53) and quote approvingly from a 2003 Alberta Queen’s Bench decision in R v Coombs, 2003 ABQB 818 at para 37, wherein the trial judge found that Parliament set “a very low threshold, certainly far below … not criminally responsible.”

Although the Court recognized the imperfections of the offence/defence of infanticide, in the majority’s view it was Parliament’s responsibility to create criminal law and not the courts’ purview even where the law in the area was “woolly.” In fact, the Court suggests the use of “vague language” in the section assists the trier of fact in coming to a “just” decision as the ambiguity gives the trier and the Crown “elbow room and several hints.” Indeed, the majority opined at paragraph 88 that:

The only way to find an error which “involves a question of law alone” would be to make new law and interpret one or more of the woolly words or phrases in section 233 more narrowly, injecting a good deal of the Court of Appeal’s own analysis and philosophy. In view of the history, that would override Parliament’s decision to do the opposite.

Clearly, the Court was unable (or unwilling) to reconcile the social, political, and policy issues with the rule of law.

Justice Wakeling’s dissent, on the other hand, does attempt to articulate a judiciable standard. He set the standard, using child welfare nomenclature, requiring (at para 98) the disturbance to be at a point where the woman’s “ability to make rational decisions which promote the best interests of her newly born child is substantially impaired.” He came to this “benchmark” by also recognizing that a “disturbed” mind provided an unclear marker for infanticide. In his view, (at para 140), as infanticide was a form of homicide and therefore a serious offence, “Parliament intended infanticide to assist only mothers who have a substantial psychological problem.” He too recognized that this degree of mental disturbance must be less than the level required for a finding of not criminally responsible, yet more than a mother who is merely facing “problems which most mothers of newborns face.” (at para 140).

In coming to the standard as earlier stated, Justice Wakeling “considered a number of possible solutions” (at para 148) and found, based on his review of the Code, two controlling “traits” of women “with a disturbed mind.” (para. 149) First, commensurate with the classification of the offence as a homicide, the “mental health” of the woman must be “substantially compromised.” (at para 150) Applying this, Justice Wakeling came to the decision, in paragraphs 151 to 152, that therefore “baby blues” or “postpartum blues syndrome” as a transient and “mild” form of depression would not fulfill this first trait.  At the other end of the spectrum, a woman suffering from postpartum psychosis would fulfill this requirement. Within this range, would be postpartum depression. According to Justice Wakeling, (at para 155), “Some women with the more severe presentation of this mental health condition may meet the first test.”

Second, Justice Wakeling, (at para 157), requires the “substantial” mental health condition to “substantially impair the mother’s ability to make rational decisions which promote the best interests of her infant.” As previously mentioned, this part of the “test” seems to be based upon a common consideration in the child welfare or family law arenas (see Young v Young, [1993] 4 SCR 3). Whether such a concept or test is appropriate in the criminal law context highlights the difficulty in crafting a rule based on impermissibly vague legislation. In any event, Justice Wakeling gave no indication as to the genesis of this part of the test.

Although Justice Wakeling does attempt to create an articulable test, he does so by changing the legal test into a medical one. In fact, he relied heavily upon the DSMR or the Diagnostic and Statistical Manual of Mental Disorders, which attracts much controversy and criticism within the medical and psychological professions. (For example – see Chapter 7 of Clinical Psychology by Andrew M. Pomerantz). As a result, this test as fashioned necessitates a trial by experts and puts too much faith in the infallibility of science. As a stark reminder of the fallacy of this belief, we need only look to the Goudge Report (Inquiry Into Pediatric Forensic Pathology In Ontario Report authored by Justice Goudge and released October 1, 2008) and the miscarriage of justice occasioned by the courts accepting an expert’s evidence on the ultimate issue of guilt or innocence.

Further, this medically driven test seems contrary to the development of the law in the area of not criminally responsible, where the courts, starting with R v Stone, [1999] 2 SCR 290, so carefully crafted a holistic test based on legal principle and factual findings and not on a closed compendium of “established” medical disorders. Finally, Justice Wakeling’s test imposes a much too stringent standard. By using the qualifier “substantial,” the test does not reflect the mens rea required for the offence, which according to Justice Doherty’s well-reasoned comments in L.B. (at para 121), must include an objective foreseeability of bodily harm. In Doherty, J.A.’s view, it is the “unique actus reus” which distinguished infanticide from murder or manslaughter.  To imbue the actus reus with such a high threshold would be inconsistent with Justice Doherty’s conclusion.

In the final analysis, what is clear from this case is that it is an example of a law which needs to be clarified by the Supreme Court of Canada, not because the ultimate decision of the majority in the Court of Appeal was in error and not because the reasons in dissent were correct, but because “woolly” laws, whatever the underlying social issues may be, are not legally valid. Although, in this case, the accused was acquitted of murder at first instance, which went a long way in ensuring the appeal would be dismissed, imagine a different scenario, where a woman is convicted of infanticide on the basis of an ambiguous law, clearly contrary to the crucial principle of legality so finely defined and generously applied by the Supreme Court of Canada, not to mention the Charter values at risk. This risk is most palpably seen in the majority’s final statement on the issue at paragraph 89 when they state the ultimate reason for leaving the offence “as is” was because to do otherwise might “simply produce more outright acquittals, either directly or via fewer charges of infanticides. That result would be as paradoxical as the pre-1948 situations and following much the same route.” Never mind this position reflects a state of the law and the state of science and social policy long since gone, but by failing to address the real legal issues arising from infanticide on this basis, the court is not simply deferring to Parliament but deferring to the status quo. On the other end of the spectrum, the dissent offers an alternate reading, which is too categorical to meet the “unique” needs of the section.

As Justice Fish stated in the Levkovic decision, [2013] 2 SCR 204, a case considering the related offence of concealing a body of a child, (at para 32):

“The doctrine against vagueness is founded on two rationales: a law must provide fair notice to citizens and it must limit enforcement discretion.  Understood in light of its theoretical foundations, the doctrine against vagueness is a critical component of a society grounded in the rule of law.” 

The Borowiec decision is unsatisfactory precisely for this reason: uncertainty and arbitrariness, for whatever reason, should not be the basis of a criminal conviction. Although criminal law provides a glimpse into society’s concerns, it also highlights the enormous burden the law may shoulder in order to ensure a fair and just community. Difficult questions such as what kind of society we want may not be easily or fully answered by the rule of law but at the very least it can provide a safe place, a fair forum, in which we can test the boundaries.

True, the original rationale for legislating infanticide was based on spurious decisions driven by the harsh realities of the death penalty. The courts must step away from the past and take a hard look at the viability of the offence given the present state of the law and the societal values we share. A lesson may be drawn from England, where there have been a number of court-driven law reform initiatives on the subject from both the legal (see the 1975 Butler report on Mentally Abnormal Offenders from 1975 and the more recent Law Commission report on Murder, Manslaughter and Infanticide from 2006) and medical perspective (see the Royal College of Psychiatrists Working Party on Infanticide from 1978). Other Commonwealth countries have joined this movement towards change in this area, such as Australia (see the 1997 Report on Partial Defences to Murder: Provocation and Infanticide). Indeed, new research suggests there is not one category of infanticide but many subcategories such as neonaticide, typically committed by sexually inexperienced teenagers. Furthermore, the gender specificity of the offence, unique in the Criminal Code, lends more voices to the discussion as some critics of the law pan the offence as criminalizing motherhood while other critics suggest the offence fails to adequately address those unique gender issues. Throughout this discourse, one thing is clear, we need the courts and our lawmakers to take a hard look at infanticide and provide legal and social guidance. Who knows, this may even be an opportunity to look deeper into the “why” of our Criminal Code with a critical eye to reform. Nevertheless, infanticide is just one example of the need to reform our laws to align with our present and act as a model for our future. Indeed, society expects the crime to reflect the times.

 

 

 

 

The “Science” Behind R v Tatton

Increasingly, the legal world and the empirical world intersect both in the approach lawyers take to present cases in court and in the decisions rendered by the courts. Statistics, studies and academic articles are used to connect the evidence to the issue at hand. Truly court cases have become “evidence-based” in the full meaning of the phrase as expert evidence elucidates the trier of fact on a particular material issue. This involves the calling of evidence and also the reliance on research done in the fields of science and social science.

This intermingling of fact and scientific fact has become even more important since the 1990’s when the Supreme Court of Canada relied upon social science research in determining whether or not a Charter breach can be saved under s. 1. Thus, the government, in order to sustain an argument that the legislative restriction is demonstrably justified in a free and democratic society, does so on the basis of academic research exploring the connection between the legislative policy and the real effects of such policy on individuals and institutions. For example, in the 1991 Seaboyer;Gayme case, concerning the constitutionality of the “rape shield” provisions of the Criminal Code, the SCC reviewed material outside of legal jurisprudence such as statistical and research-based reports and academic articles written by psychologists and criminologists. Indeed many of the SCC cases relating to child witnesses routinely refer to this extra-legal material as for example in R. v. F. (W.J.), [1999] 3 SCR 569 and R. v. L. (D.O.), [1993] 4 SCR 419.

The difficulty with relying on social science research is that such research can change over time. What is accepted can be undermined by further study. This occurred in the above-mentioned L.(D.O.) case where in the reasons of Madame Justice L’Heureux-Dube on the issue of the constitutionality of s. 715.1, which permitted the admission of a child’s videotaped statement, she referred to “child abuse accommodation syndrome.” Subsequently, the syndrome came under intense scrutiny and is no longer accepted as persuasive. Indeed, one study labeled the syndrome an example of “junk science.” Although, the reliance on science was not critical to the legal outcome, a Court relying on such information may find what seemed persuasive is no longer valid and the legal decision can no longer stand.

On the other side of the spectrum, it is most troubling when the Court pronounces on legal principles, which partly lie in the realm of public policy and therefore has a connection to experiential or empirical knowledge and yet does not support the decision with tested facts. In the recent Supreme Court of Canada Tatton case, Mr. Justice Moldaver, speaking for the Court, upheld a time honoured legal distinction between specific and general intent offences as it related to the applicability of self-induced intoxication. Liberally sprinkled throughout the decision is reference to the inextricable connection between intoxication and crime. Even the specific/general intent distinction is imbued with an analysis of the mental engagement of an individual. Despite this heavy reliance on what appears to be scientific truths, at no time did the Court refer to or support the position with scientific study or research. To be sure, the court referred often to the Daviault case, which did reference a number of governmental reports and studies on alcohol and crime. However, the Daviault case was rendered in 1994, twenty-one years ago, with the studies coming from the mid to late 1980s.

Surely, more recent evidence should have been used considering the decision finally determined the limited application of a legal defence. Since the 1980s there have been numerous studies (here, here, here, and here) done on intoxication and crime, some of which do show a high number of crimes committed while the offender was intoxicated. However, there are also studies, which cannot definitively connect intoxication as the reason for an offender committing crimes. So although 40% of crimes are committed while the offender is under the influence of some sort of intoxicant, this does not mean that these crimes would not have been committed without them. To make this connection, there is research concerning the effects of alcohol as a disinhibitor that impacts a person’s thought processes to such an extent that they perform acts they would not have otherwise performed. Further research on thought processes suggest that decision making is complex and highly individualized. Therefore, the additional ingredient of alcohol can have a profound impact on the mental reasoning or lack thereof of a person who acts contrary to the law while intoxicated. For some of these studies, go here, here, here, and here. What can be learned from these various studies are that the issue is has not been empirically determined and the relationship between alcohol, mental processes, and crime is highly complicated and variable.

What are the implications of this on the Tatton case? As mentioned earlier, the case’s import is twofold as it propounds on the general distinction between specific and general intent and then specifically relates these differences to the defence of intoxication. On both issues, I submit that Mr. Justice Moldaver relied upon the court’s perception of the “science” behind these legal principles in reiterating a long held position that intoxication is not a defence to a general intent offence without referencing any recent empirical studies but instead merely citing the twenty-one year old Daviault case. By proceeding on this basis, the Court missed the opportunity to provide some rational basis for the general/specific distinction. Instead, the Court has simply perpetuated a legal fiction as opposed to a scientific one.

 

 

 

 

 

 

 

Episode 39 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 34 – Defence Of The Person

As with many of our legal defences, defence of the person comes to us through the English common law and was ultimately codified in our first Criminal Code of 1892. Over time the codified defence, together with the codified defence of property, which we will discuss in the next episode, became increasingly obtuse, ultimately stretching over nine sections from section 34, which offered differing forms of self defence depending on whether the accused was the aggressor, to section 42, which provided justifications for those persons peaceably entering a dwelling house or real property to take lawful possession of it.

This mash-up of sections resulted in a nightmare of a defence as certain sections applied only in specific circumstances and certain subsections applied in even other circumstances.  For example, in the old section, s. 34(1) applied where the accused was unlawfully assaulted and did not provoke the attack, while s. 34(2) applied where the accused either provoked or did not provoke the unlawful assault. The nightmare continued as Judges struggled to explain these differences to a Jury, eagerly awaiting instruction. It is unsurprising that appellate courts considered many of these self defence cases.

So, in some sense, it was a relief in 2013, when the Federal government streamlined the defence into one applicable section. However, this streamlining, I would argue, may have re-focused the defence from a modified subjective/objective assessment to a more thorough consideration of the objective view of the accused’s conduct.

Before, we launch into the niceties of this new section, please remember that self defence and defence of the person is a category of common law defences known as justifications. Justifications, according to Justice Dickson in Perka v The Queen, “challenges the wrongfulness of an action which technically constitutes a crime.” In other words, the actions of the accused appear “rightful, not wrongful” and, as Justice Dickson further explained, “the concept of punishment often seems incompatible” with the act committed. Indeed, Justice Dickson opined, in the circumstances “the values of society, indeed of the criminal law itself, are better promoted by disobeying a given statute than by observing it.”

 In that aura of humanity, let us review section 34, which reads as follows:

(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

                        (c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

                      (a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

                        (c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

 

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

There are three parts or subsections to s. 34. Subsection 1 outlines the essence of the defence as containing both subjective and objective elements relating to the belief the accused was facing a situation that required the justified response. Subsection 2 enumerates a number of factors to be considered in determining whether or not the accused had a reasonable belief she was facing a situation where the use of force was justified. Although this list is lengthy it is not exhaustive and other factors may come into play depending on the case. Additionally, this list is derived from case law and reflects the many circumstances considered over the years of appellate review of the old sections.

Although the accused need only raise a doubt that her actions were so justified and therefore the burden to prove the accused actions were not justified are on the Crown, the defence must raise an air of reality to the defence before it will be considered by the trier of fact. I have written a paper on the application of the threshold test of air of reality to justifications and excuses at (2014) 61 Criminal Law Quarterly 531 or you may review my short blog version of that paper here.

Subsection 3 sets out when the defence is not available: where the force the accused was facing was lawful. However, the accused may rely on the defence if the accused believed on reasonable grounds that the force threatened was unlawful.

Since the change in the defence, there have been a number of trial court decisions applying the section. One of the first issues to be argued was whether or not the section is retrospective. The question was as follows: where the accused is facing a pre amendment charge but is tried post amendment, which statutory defence applies? The cases suggest that the section is not retrospective and the trial judge must apply the defence sections, which were in force at the time of the offence. For a discussion of this issue see R v Evans, 2015 BCCA 46 (CanLII).

In the end, how does the new section compare to the old sections? In my prior blog, Canada’s New Defence of the Person Section: Is It Too Reasonable, I argued that although the old sections, which blended objective/subjective considerations, provided a less than satisfactory defence, the new iteration is decidedly more objective and fails to adequately consider the accused’s subjective perception of the events. Thus, the section is concerned more with the hypothetical reasonable person’s viewpoint and less with the individual who is in reality facing the dire circumstances.

Further, the defence requires that the accused’s actions must be “for the purpose of defending or protecting themselves or others.” This requirement at first blush seems non-controversial, as obviously the conduct must be in response to an unlawful assault. However, on closer examination and upon reviewing some case law, this requirement may unduly restrict the defence.

In the 2015 Ontario Superior Court of Justice case of Allen before Justice Fairburn, Mr. Allen assaulted a police officer and appeared to resist arrest by punching the officer and placing him in a “choke hold.” In the end, the officer was found not to be in the lawful execution of his duty and therefore the arrest was unlawful. Although Justice Fairburn dismissed the defence of self defence under s. 34, as the act of the accused was not reasonable in the circumstances, the court commented on the “purpose” of the assault. According to Justice Fairburn, the accused did not testify and therefore the court inferred that the act was not for the purpose of defending himself but was force used purely for the “sake” of using force against the police officer. This analysis suggests that not only should defence counsel consider very carefully whether or not to call a client where self defence is raised but also provides a strict meaning of the term “for the purpose.” Defence counsel should be aware that this subsection could add a further evidential burden on the accused despite the fact the accused need only raise a doubt on the issue.

Although this section has been in use for two years, the section has not been subject to an appellate court decision. It will be interesting to see what interpretation ultimately is given to this section. For instance, an issue may arise considering the applicability of the common law version of the defence where this statutory defence differs from the common law and whether the courts are willing to modify the statutory defence in accordance with common law principles. In the meantime, counsel should carefully review the defence evidence on the issue of defence of the person in light of this new statutory defence and be mindful of the new requirements.

 

 

 

Thoughts On St-Cloud Or How Everything Old Is New Again

After reading the Supreme Court of Canada’s decision in St-Cloud, I was instantly transported back to the heady days of the early nineties: where multifarious decisions produced more questions than answers but left the reader with the comforting feeling that somehow the Charter was above the fray. In those mixed-bag decisions there was the satisfaction that the Charter did make a difference and was shaping the new-look Canadian society. However, this nostalgic wave of emotion was not a “remembrance of things past” but was a physical time travel to the days of Morales, wherein the Supreme Court found the secondary “public interest” ground for justifying detention under the then s. 515 of no force and effect as it violated s. 11(e) of the Charter.

Now, let’s be clear, I agree that the 1990’s version of the grounds justifying detention under the Code is very different than today’s read. However, Justice Wagner’s decision applies a broad brush to those differences resulting in a tertiary ground which looks, feels, and acts like the old version.

In Morales and the companion case Pearson, Chief Justice Lamer unpacked the meaning of “public interest” as a judicial tool to justify the denial of bail. This justification was important to articulate, as the granting of bail was the default position under the section. Similarly, “reasonable” bail was guaranteed under s. 11(e) of the Charter. The meaning of “public interest” was therefore an important indicator of whether or not the law was properly mirroring this Charter right. In order to give meaning to a right, all courts should be in agreement with that meaning or the right is no longer an equitable claim.  If “public interest” could not be crystallized and articulable then it would be of no assistance in grounding a denial of bail. This did not mean that there must be a precise definition but an articulable one. Throughout this discussion, Chief Justice Lamer reiterated the “golden thread” by which the court was guided in viewing the matter – the “golden thread” of the presumption of innocence.

Under this 1990’s microscope, the court was unable to find a consensus on the meaning of “public interest” resulting in a “vague and imprecise” basis for detention, which was contrary to fundamental principles of justice such as the principle of legality as delineated in the SCC case of Lohnes rendered a few months earlier. Upon a thorough sweep of authorities, Lamer C. J. found the term “public interest” was “open-ended” and failed to provide a structure for legal debate.  With such a deficient yardstick, the ground could not be saved under s. 1.

It seems pretty clear from this decision that “public interest” is an unusable phrase from the past, except for this telling line from the Morales decision:

“As currently defined by the courts, the term "public interest" is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.” (Emphasis added)

Now, flash-forward to the St-Cloud decision and Justice Wagner’s valiant attempts to define “public confidence” seems to make short shrift of the Morales decision. To be sure the 2015 Court is working with a differently worded section and the issue is “public confidence” in the administration of justice and not “public interest” but what is “public confidence” now can be “public interest” then.  Although Justice Wagner is very careful to couch the meaning in Charter correct terms and is mindful of the unique connection release from custody has to our fundamental concepts of the presumption of innocence and burden of proof, the fact remains that these core principles are now bound by the public interest, albeit tempered by the concept of Canada’s nom de plume, “reasonableness.”

This case raises many questions. Not just questions of applicability and not just questions of how this decision will look like in the realities of bail court but fundamental questions such as: is the law looking backward instead of forward by essentially reviving the public interest as a controlling feature of bail? And if so, how does the public interest reside within our fundamental principles, which tend to the individual as opposed to the collective, such as the presumption of innocence as the “golden thread” that appears throughout our notion of criminal law? These hard questions must be asked if we are to move into the future and beyond.

Section 33.1 & How Intoxication Became A Form of Mens Rea: Episode 38 of the Ideablawg Podcasts on the Criminal Code of Canada – A Long Read (Or Listen)

In this episode we will explore the “defence” of intoxication and how this common law concept became a form of statutory mens rea in s. 33.1 of the Criminal Code.

Intoxication, as a defence, is a difficult concept involving a clash of perspectives. One perspective finds fault with the defence as it absolves a morally blameworthy accused who, in committing an offence, willingly places himself in an uncontrollable state. The other perspective aligns with traditional criminal law precepts by permitting the defence on the basis that only those accused who have the required fault element of the crime should be punished. Both perspectives have informed this defence through legal interpretation and legislative response. In the end, intoxication as a defence is cumbersome, artificial, and in many respects unsatisfactory. The law and legislature has simply been unable to reconcile these differing, yet valid, perspectives and the defence remains a legal anomaly.   

It is in this background, we must view the present iteration of the defence as found partly in s. 33.1 of the Criminal Code. I say “partly” as the judicial interpretation of the defence still applies in some respects. Indeed, we can for ease of discussion refer to s. 33.1 as representing the first perspective I previously outlined - the concept of moral blameworthiness. Conversely, the judicial perspective, as ultimately represented in the Daviault case through the application of the Charter, represents the traditional criminal law principle of ensuring those without criminal intent, the morally innocent, are not punished.

Historically, these two perspectives on intoxication were not separated and the courts fashioned an awkward alliance between these two visions of responsibility:  the morally responsible accused who choses to become intoxicated and the morally innocent accused who was acting without mens rea and therefore not criminally responsible. To fulfill these two visions the common law limited the defence to certain types of offences. The case, which reflects this common law principle, is the 1920 House of Lords decision in DPP v Beard. The principle in Beard’s Case, as it became to be known, holds that intoxication is not a defence to a general intent offence but is a defence to a specific intent offence.

To understand this split, let’s review the difference between general and specific intent offences: Crimes of specific intent are offences with a special mental element required above and beyond the general mental element of the offence. Thus, a crime such as theft, which requires the taking of something with the intent to steal, is a specific intent offence. So too is murder with the specific intent to kill. Conversely, general intent offences involve no ulterior goal and only require an intention to act to achieve an immediate goal. Assault is an example of a general intent offence. Applying the principle in Beard’s Case, intoxication is a defence for a murder charge but not for an assault. Although the Supreme Court of Canada consistently disapproves of this specific/general distinction as artificial and confusing, it still remains an integral part of the intoxication nomenclature.

In the 1977 Leary decision, the SCC considered the Canadian position on intoxication creating a rule similar to Beard’s Case. This rule was reconsidered after the advent of the Charter in the 1988 Bernard decision. Bernard produced a fractured court with three separate concurring decisions and a strong dissent from the then Chief Justice Dickson and Justice Lamer, who also dissented in Leary.

Justice McIntyre’s majority decision upholds the Leary rule that intoxication is not a defence to a general intent offence. Both Leary and Bernard involved the general intent offences of rape and sexual assault, respectively. There were strong public policy reasons for eliminating intoxication as a defence to sexual offences. Even so, Justice McIntyre conceded that intoxication might apply to specific intent offences as in those circumstances intoxication could negate the formation of the specific intent required. This was also a “safe” position to hold as typically a specific intent offence involved proof of an underlying general intent offence. Therefore an acquittal for a specific intent offence on the basis of intoxication still permitted a conviction on the lesser and included general intent offence. An acquittal for murder, for instance, could result in a finding of guilt for manslaughter. The “morally” responsible accused would still be convicted.

In terms of the Charter, Justice McIntyre found sections 7 and 11(d) were not violated by the Leary rule, as the morally innocent would not be convicted on the basis that the voluntary consumption of an intoxicant would be criminally blameworthy. Further, the Crown must still prove mens rea, which could be inferred from the prohibited act by assuming a person intends the natural and probable consequences of his or her actions. If, however, voluntariness was an issue, meaning the accused was so intoxicated that his actions were not voluntary and therefore the so called “willing mind” aspect of the actus reus could not be proved, then the Crown could prove the acts were of a willing mind based on the proof of the accused self-induced intoxication.  

Justice McIntyre’s decision is difficult to reconcile. Proving mens rea on the incongruous premise that an intoxicated person intends the natural and probable consequences of their actions is debatable.  Although, as an aside, this concept has enjoyed recent SCC approval in the Walle case. See my blog on that case here.  Further, Justice McIntyre’s response to the voluntariness issue is a tautology: by filling in the proverbial fault “hole” with proof of intoxication, intoxication is no longer a “defence” or even a state of mind but is evidence of the state of mind, which is the key element of the an offence.

Justice Wilson, concurring in Bernard, offers a more “flexible” approach to the Leary rule permitting evidence of extreme intoxication “involving an absence of awareness akin to a state of insanity or automatism” to be left with the trier of fact in general intent offences. On the issue of mens rea, Justice Wilson does not approve of the substitution of self-induced intoxication for proof of the mental element component. In her view, the Crown is still required, even in general intent offences, to prove the minimal intent needed for conviction.

In the dissent, Chief Justice Dickson and Justice Lamer found the Leary rule violated the Charter and could not be saved under s.1. The rule, according to the minority, imposed a form of absolute liability, requiring no proof of mens rea for those general intent offences where intoxication could negate the mental element of the offence. They also firmly disapproved of the “artificial” distinction between specific and general offences. Intoxication, in their view, was relevant to mens rea and should be left to the “fair and responsible” trier of fact, who was able to sift through the evidence and determine if in fact intoxication was to such an extent that mens rea was absent.

Unsurprisingly, the Bernard decision attracted many critics, particularly Justice McIntyre’s position that self induced intoxication could substitute for the mental element of an offence.  There was the concern that the legally innocent, those accused whose level of intoxication was sufficient to raise a reasonable doubt on the mental element, were being convicted as a result of the Leary rule. Other commonwealth countries, such as Australia in the O’Connor case and New Zealand in the Kamipeli case, which previously supported the rule in Beard’s case, ultimately resiled from that ruling.  Eventually, Britain too modified the Beard’s Case ruling. Critics also lambasted the specific/general distinction as irrelevant and, as suggested by the dissent in Bernard, creating artificial barriers to valid defences.

In this climate, the SCC heard the Daviault case in 1994, also a sexual assault conviction, where the issue concerned the application of extreme intoxication as a defence to a general intent offence as considered by Justice Wilson in her decision in Bernard.  This time, the majority of the court found the Leary rule unconstitutional and agreed with Justice Wilson’s approach in Bernard that extreme intoxication was a defence to a general intent offence. In order to raise this defence, the accused, similar to a s.16 or automatism defence, must prove the defence on a balance of probability and is required to produce expert evidence in support.  The majority disagreed with Justice McIntyre that self-induced intoxication could provide the mens rea for the offence. The dissent, written by Justice Sopinka, found that the Leary rule was based on sound public policy reasons even though the specific and general intention distinction could lead to “illogical” results. The majority allowed the appeal and remitted the case for a new trial wherein the defence of intoxication could be raised.

The response to Daviault was swift. The government quickly legislated a response to the case and within a year a new amendment to the Code under s. 33.1 received Royal Assent.  Section 33.1, as suggested by the summary preceding the text of the Bill, amended the Criminal Codeby legislating a basis of criminal fault in relation to extreme self-induced intoxication and violence.”

The section, entitled “ self-induced intoxication,” reads as follows:

(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

Criminal fault by reason of intoxication

 (2) For the purposes of this section, a person departs markedly from the standard of reasonable care       generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

  Application

 (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

The section is a difficult read.  Subsection 1, which confusingly refers to (2) and (3), essentially eliminates the Daviault exception to the Leary rule by legislating that extreme intoxication is not a defence for general intent offences, which interfere with or threaten to interfere with the ”bodily integrity” of another person.  The concept of interference with “bodily integrity” is broad and includes, as per the SCC Tessling case, the right not to be touched.

However, the subsection also substitutes the self-induced intoxication for the mens rea of the offence. In subsection 1, this substitution arises from the connection between the elimination of the defence and the accused’s conduct as “departed markedly from the standard of care as described in (2).”  Subsection (2), entitled Criminal fault by reason of intoxication, describes a marked departure from the norm, typical language used to explain criminal negligence from the SCC Tutton case, as occurring when the accused commits the offence “while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily.” Therefore, the deficient state of the accused, both physically and mentally, fulfills the mental requirement of a criminal act. Needless to say, this artificial mens rea is contrary to traditional criminal law precepts and in violation of the Charter as articulated by Chief Justice Dickson and Justice Lamer in the Leary and Bernard dissents and as found by the majority in Daviault.

Even so, the legacy of Daviault still has precedential value. The courts never overruled the decision and s. 33.1 has not eliminated the defence for those general intent offences which do not involve the interference with the bodily integrity of another person nor has it eliminated the defence for specific intent offences. The 2007 SCC Daley case nicely outlines the application of the defence of intoxication in light of this.  Further, some courts in Ontario, such as in R v Cedeno, have found s. 33.1 unconstitutional, although oddly enough the constitutionality of the section has not be considered by appellate level courts.  The closest an appellate court has come to discussing the constitutionality of the section is in the 2001 North West Territories Court of Appeal case in R v Brenton where the court reversed a lower court decision finding the section unconstitutional on the basis that the lower court did not have a sufficient “factual foundation at trial upon which to mount a constitutional challenge to s. 33.1. In our respectful view, this was not a proper case in which to engage this important constitutional issue.”

There is a pressing need for the higher level courts to pronounce on this issue. Certainly, there is societal repugnance for the defence particularly where the crime committed involves sexual assault. However, there is now societal recognition that alcoholism and drug addiction can be a disease and may leave the affected person helpless to control their substance abuse problem. The concept of “self-induced” intoxication is brought into question in those situations and the subsequent warehousing of these offenders becomes part of the problem instead of the solution. There is, of course, still the doctrinal concern that the law, by not taking into account intoxication, is creating an artificial mental state where the accused does not actually have the blameworthy intent and yet is punished as if he or she did. In a very real sense, therefore, we are punishing the intoxication rather than the crime.

 

Bail Pending Appeal And The Public Interest: The Effect of the Alberta Court of Appeal Decision In Rhyason

A few weeks ago, I had an opportunity to address the students from Professor Glen Luther and criminal lawyer Brian Pfefferle’s Intensive Criminal Law Program at the University of Saskatchewan College of Law. It is always a pleasure to speak to a group of dedicated and eager students who have chosen the rewarding, yet often, difficult task of criminal work, be it prosecution or defence. The topic on which I chose to speak was on criminal appellate advocacy including practical considerations, the process and the written advocacy required. I also discussed the bail pending appeal process on conviction appeals to the provincial court of appeal and the criteria for release as outlined under s. 679(3) of the Criminal Code. This is an area rarely touched upon in law school and yet is an important step in the appellate process. Although s. 679(3) sets out articulable grounds for release, the judicial interpretation of the public interest ground has been unclear and often inconsistently applied. Yet, it tends to be the public interest ground relied upon by the Court to dismiss the bail pending appeal application.

Bail pending appeal significantly differs from judicial interim release at first instance, as the offender no longer has the advantage of the presumption of innocence. It is therefore the offender who has the burden to persuade the single Justice hearing the application to release the applicant pending the hearing of the appeal. If an offender is released on bail pending the appeal, he or she will be required to surrender into custody before the matter will be heard. Typically, this is manifested through a bail condition for the Appellant to surrender the evening before the hearing date. The custodian of the jail will transmit a confirmation this has been done. If the Appellant fails to surrender, the bail may be estreated, if applicable, and the appeal will be deemed abandoned.  

Considering the onus is on the Appellant, The Court of Appeal Justice, in determining the bail pending for a conviction appeal, must be satisfied, as per s.679(3) that the Appellant will:

 (a) the appeal or application for leave to appeal is not frivolous;

 (b) he will surrender himself into custody in accordance with the      terms of the order; and

            (c) his detention is not necessary in the public interest.

These three factors for release, as will be discussed, are not treated by all appellate courts as mutually exclusive and are interconnected. The requirement, for instance, that the Appellant will surrender himself into custody is related to the other factor that detention is not necessary in the public interest as an Appellant who does not establish that he will obey the court terms would also have difficulty establishing that the detention is not necessary in the public interest. Those Appellants who fail to fulfill the surrender requirement would be offenders who have failed to comply with recognizances in the past and/or have fail to appears on their criminal record. This kind of evidence goes to the concern, applicable to this ground,that the Appellant is a flight risk and will therefore evade serving the sentence. This concern is connected to both aspects of the public interest ground as a failure to surrender would bring the administration of justice into disrepute and would put the public safety at risk. Usually, however, the Appellant can satisfy the requirement to surrender with appropriate conditions and sureties and this factor is not the factor, which causes the Court the most concern.

The next requirement that the appeal is not frivolous has been traditionally a matter of the Appellant establishing that the appeal is arguable or that the appeal would not necessarily fail. This requires some argument on the grounds of appeal as proposed in the Notice of Appeal and as evidenced by the trial record. Usually, this ground too is fairly simple to establish, although obviously dependent on the ground being advanced. Certainly an appeal based on a question of fact or mixed law and fact would be more difficult to argue than a question of law due to the principle of deference to the trial judge in those factual findings. But this is not where the real difficulty appears. The real difficulty for the Appellant is in the public interest ground where some courts take into account the strength of the appeal in the assessment. An Appellant may, therefore, be able to establish that the appeal is arguable but if the appeal is arguable but weak this finding may impact release under the public interest ground. This is certainly the case in Alberta but not the case in Newfoundland. I will now discuss this a schism on this issue and the implications for an Appellant in arguing a bail pending where the Court prefers the Alberta position. In my view, this is an inconsistency, which requires direction from the Supreme Court of Canada.

First, we must be mindful of the legal interpretation of the phrase “not necessary in the public interest.” The classic definition or legal interpretation comes from the 1993 Farinacci case. In that decision, Justice Arbour finds there are two aspects to the term “public interest” as it involves both protection of the public and public respect for the administration of justice. This dual nature of public interest, she further explained, in the context of a bail pending appeal balances enforceability with reviewability. There is a public interest in having judgments of the court obeyed and therefore enforced. However, there is an equally cogent reviewability interest, which requires that judgments be error-free. In criminal law, therefore, there is an important interest in ensuring the law is applied but applied in a fair and just manner. A judgment, which perpetuates a miscarriage of justice, is in law, no judgment at all.

So far, the meaning of public interest appears to apply legal common sense and the kind of balancing we are so familiar with in Canada. But, it is the extension of this interpretation in the Alberta Court of Appeal Rhyason case, written by Justice Berger, which causes an imbalance to the Farinacci structure by placing undue emphasis on the strength of the Appellant’s appeal. I would argue that this emphasis is misplaced as it elevates the s. 679 requirement that the appeal not be frivolous to a higher standard depending on the public safety aspect of the public interest ground.

In Rhyason, the Appellant was convicted of impaired causing death in 2006. He had a prior conviction for impaired driving and was sentenced to eighteen months incarceration. He was gainfully employed at the time of incarceration and enjoyed the support of his family. At the time of the bail pending, he had been ticketed for speeding on three occasions and was convicted of failing to comply with the reporting condition of his pre trial bail as he had failed to telephone in as required.

On appeal, the defence advanced a number of errors entered into by the trial judge including an error in the finding that the officer had reasonable and probable grounds for the breath demand. Justice Berger in dismissing the bail application found there could be a close connection between both the requirement that the appeal not be frivolous and the requirement that the Appellant surrender with the public interest ground. As already discussed, there is a rational connection with the requirement to surrender but a connection that can be addressed by proper bail terms. However, by relating the strength of the appeal to the public interest ground, Justice Berger was not merely making a reasonable and valid connection but imbued the public interest with a further requirement that the Appellant must establish a certain a level of “argueability” to the appeal, which is simply not required under the rubric that the appeal simply not be considered frivolous.

Essentially, Justice Berger created a “sliding scale” whereby the more compellable the public interest is in further detaining the Appellant, the stronger the appeal must be for the Appellant to be released on bail. In the case of Rhyason, Justice Berger found compelling public interest reasons for detention although the appeal was “clearly arguable”, and therefore was “clearly” not frivolous, however, in Justice Berger’s opinion, the grounds for appeal did not have a “strong prospect of success,” which required the Appellant be ordered to remain in custody. For the Appellant to be released, according to Justice Berger, Rhyason would have to have an appeal that was more than clearly arguable to “trump” the public safety concerns in the case.

Ironically, the Rhyason case was appealed all the way to the Supreme Court of Canada on the basis of a dissent in the Alberta Court of Appeal. Although the Supreme Court of Canada ultimately dismissed the Appellant’s appeal, it was a split 5:4 decision – a far cry from an appeal, which Justice Berger characterized as not having a strong prospect of success.

The Rhyason analysis was recently tested in the Alberta Court of Appeal case from 2015 in the Awer decision. Justice Berger was again faced with a bail pending application in which the Crown, opposing the release, urged the court to enter into a Rhyason analysis tying the strength of the appeal to the public interest issue. In releasing the Appellant on bail, Justice Berger attempted to limit the broad test he enunciated in Rhyason. Thus, in Awer, he found that the Rhyason analysis was only engaged when there was a “moderate” to “compelling’ public interest in detention, which was not the case in Awer. It should be noted that in Awer the accused was convicted of a serious sexual assault but there was conflicting expert evidence which, according to Justice Berger, “was a critical component” to the finding of guilt or innocence. Awer was released as his appeal was not frivolous and the terms of the bail could ensure public safety.  

The Newfoundland Court of Appeal has taken a position strongly opposed to Rhyason in a number of cases (see Parsons, Allen, and Newman) and will not take into account the strength of the appeal under the public interest ground.  The British Columbia Court of Appeal in Ali and in Al-Maliki cases appears to be firmly on side with Alberta.

There are many concerns with the Rhyason analysis. As earlier discussed the threshold requirement that the appeal not be frivolous is not only elevated but also fluctuates depending on how compelling the public interest is in a particular case. This uneven application of bail requirements allows for inequities between various Appellants, such as evinced in the Awer and Rhyason cases. As demonstrated in Rhyason, a case, which was not just “clearly” arguable but “strongly” arguable, the Rhyason analysis invites a single Justice to dispose of an arguable appeal without the benefit of a full transcript, a full argument and a full court. Further, this approach fails to properly consider the other important aspect of the public interest – reviewability – and the public confidence resulting from the need to provide a meaningful opportunity for an individual to appeal to protect society from miscarriages of justice. Without a clear and articulable standard, reviewability and our concept of justice will be hampered by an Appellant who abandons an appeal as a result of serving his or her sentence. Such a result is clearly not in the public interest.

 

 

A Short Note On Why Behavioural Economics Should Matter to Criminal Lawyers

In some sense this blog posting is both a book review and a legal analysis. It is a book review as this blog arises from my reading of the Daniel Kahneman’s book entitled Thinking, Fast and Slow. It is also a legal analysis as the ideas and theories arising from Kahneman’s Nobel Prize winning research form the basis of my suggestion that it is time to critique some traditional criminal law principles. In the end what this blog is about is connections and how we, as in the legal profession “we,” must be cognizant of new and innovative developments in other subject areas, in this case social sciences, in order to craft new and innovative arguments. New arguments can lead to new law and this book might just be the catalyst for this kind of change.

I will not belabour the specifics of the book nor will I give a deep analysis of it. That kind of discussion should be done in a formal setting as in a well-reasoned journal article but I will leave that to a later opportunity. Essentially, Kahneman and his research partner did a series of break through behavioural testing which turned the field of economics on its head.  The two researchers, as psychologists, approached the construction of the rational Economic or Econ person in a totally different manner than the economists did previously. When I say previously, I mean the theories had been in place and used for decades. This would be, in Kahneman’s view, a good example of theory-induced blindness. In any event, Kahneman showed that the basic Econ, which was a staple figure in economic theory, was not in fact rational and at times, even down right irrational. Well, not really irrational, as the research showed there were a pattern to the behavioural responses but not the expected pattern of the Econ. Instead the Econ was really a Human – someone who made choices, often seemingly economically irrational choices, not based on the utility theory favoured by the economists but based on other more ephemeral reasons including fear, loss, and bias. What caused such a stir in the field of economics was that Kahneman and his partner could actually prove, through research data, that this was so. The rational Econ was a false promise and not the stuff upon which sound economic theory should be based. Additionally, what economic theory needed were better reference points – starting points from which the Human could become a better decision maker. In other words, the Econ was not working with a full deck or full information upon which these economic decisions or even life changing decisions should be made.

There is, of course, more to the book and the prize winning economic theory, called prospect theory, which arises out of Kahneman’s research. For instance, the first part of the book dwells on the cognitive theories of how and why we make decisions or choices. According to Kahneman we have an intuitive System 1, which thinks fast enabling us to make split second decisions and gives us speedy answers to questions like one plus one or the colour of the sky. We also have a slower or lazier System 2, which kicks in when we need to give a decision some thought such as the answer to 124 times 26 or remembering the lines of a poem we may have learned when we were young. These systems do not work totally independently. Although being aware of these two systems we can improve the correctness of our outcomes by slowing down our thought processes to allow System 2 to take over so we can improve our chances of “getting it right,” mostly we reflexively defer to our System 1, particularly when faced with exigent circumstances. This often produces acceptable outcomes as our System 1 works so fast as it is primed with crucial experiential information. However, these stored memory fragments are sometimes incorrect leading us to make bad choices and erroneous decisions. In those instances, we have no real choice but to simply go along for the ride.

So how does this lead to a critical analysis of legal principles? By extrapolating and applying these research based theories to the underlying reason for certain legal constructs, we can argue that certain unquestioned legal principles used in criminal law such as the “reasonable person” standard and the well-accepted premise that we intend the natural consequences of our actions (see my blog on the Walle case), may in fact no longer be valid. It is time, therefore, for the legal profession to break out of our theory-induced blindness and integrate, in the appropriate case, theories from other areas of the science and humanities to ensure that the law is a real reflection of society. Now, doesn’t that sound reasonable?

IS THIS WHAT’S WRONG WITH JOBIDON? THE INTERSECTION OF CONSENTS - ASSAULT AND SEXUAL ASSAULT

Any lawyer who has read Jobidon could see this coming: consent to the intentional application of force turning into a three ring circus – not a boxing ring mind you as that is “within the customary norms and rules of the game” and has “significant social value.” No, the atmosphere conjured is of course as a result of the breaking news on Jian Ghomeshi and although his situation will continue to be played out in social media, the legal community is welcoming the attention. What is the status of the law on the issue of sexual activity which is intended to and does cause injury but which is entered into by consenting adults? This is where issues of consent to assaults and sexual assaults intersect and yet the law thanks to Jobidon and JA is far from providing a bright line between the two.

 There is a lawyerly adage that bad facts make bad law and perhaps the Jobidon case fits that sentiment. Jules Jobidon was charged with unlawful act manslaughter as a result of a consensual barroom brawl, which Jobidon and the deceased took outside to settle. Jobidon quickly took the upper hand and within seconds the receipient of the punches lay unconscious and subsequently died. Did the deceased consent to a fistfight? Yes, but is consent a defence or phrased differently, does the Crown need to prove lack of consent as part of the actus reus of assault. On the face, s. 265(3) of the Code does not preclude consent being given under the Jobidon circumstances but underneath the Code, “illuminating” the Code as Justice Gonthier sees it in Jobidon, is the common law. It is the common law, through English authorities, most notably the 1980 House of Lords decision in Attorney General Reference, which stands for the proposition, enunciated in Jobidon, that intentional application of force, which causes bodily harm vitiates consent on public policy grounds. This “judge-made” policy is based upon, in part, the social uselessness of brawls. Society has changed from a macho flexing of muscles and no longer views physicality as a virtue, although, as Justice Gonthier points out, we still enjoy a “socially valuable cultural product” like stunts and daredevil activities. For Justice Sopinka however, Jobidon is guilty as charged, not because the common law as the archival repository of when consent can or cannot be available on an assault charge, but because Jobidon’s actions were outside the scope of the consent given by the deceased. This social utility view versus the scope of consent view will permeate the law on sexual assault as well.

The law on sexual assault developed differently. The watershed case is of course Ewanchuk, the case that launched a number of controversies both inside the legal community and outside when Justice McClung sent his letter of protest to the National Post. Leaving that aside, the Ewanchuk case is in some respects a breath of fresh air, a case dealing head on with sexual myths and stereotypes that a woman invites sexual advances through her dress and character. Famously, the case is known as the “no means no” decision, where a woman or man who does not clearly consent to sexual activity is not consenting to sexual activity. It has shades of the exchange between Elizabeth and Mr. Collins from Pride and Prejudice wherein he suggests her refusal of his marriage proposal is designed to increase his “love by suspense” as she “secretly” means to accept him. The Ewanchuk decision makes it clear, there is no implied consent in a woman’s refusal as consent must be freely and voluntarily given not assumed or implied. In this situation, public policy considerations were required to protect the vulnerable and to realign public expectations and realities.

However, at some point the unique issues surrounding sexual assaults and the common law approach to assaults would clash. In 1992, the English House of Lords in the Brown case split on the intersection of sex and harm.  In that case a number of individuals were charged with assault causing bodily harm. These men belonged to a group of homosexual sado-masochists who for a long period of time regularly met in “torture” rooms, as the House of Lords described it, “for the purpose of indulging in acts of sexual violence against one another, as a means of sexual fulfilment.” No permanent injuries were sustained and no medical treatment was sought. On occasion the sessions were videotaped for their own private viewing. None of the men involved complained to the police. The police involvement resulted from an officer “who stumbled by chance” on the videotapes. Indeed, the activity was viewed as private and consensual. The House of Lords was divided in decision on the case. the majority upheld the long held view, as enunciated by Jobidon, that there is no consent to bodily harm that is intended and caused. In the majority’s view

“appetites of sadists and masochists can only be  satisfied by the infliction of bodily harm and that the law  should not punish the consensual achievement of sexual  satisfaction. There was no evidence to support the assertion  that sado-masochist activities are essential to the happiness  of the appellants or any other participants but the argument  would be acceptable if sado-masochism were only concerned  with sex, as the appellants contend. In my opinion sado-  masochism is not only concerned with sex. Sado-masochism is also concerned with violence… In principle there is a difference between violence which  is incidental and violence which is inflicted for the  indulgence of cruelty. The violence of sado-masochistic  encounters involves the indulgence of cruelty by sadists and  the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared  to invent a defence of consent for sado-masochistic  encounters which breed and glorify cruelty and result in  offences under ss. 47 and 20 of the 1861 Act.”

The dissent cautioned against state interference into the private lives of citizens in favour of self-autonomy and "that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large." This caution to not extend the criminal law into areas of private choice and taste is consistent with Chief Justice McLachlin’s caution in the Mabior case that “The principal objective of the criminal law is the public identification of wrongdoing qua wrongdoing which violates public order and is so blameworthy that it deserves penal sanction.” 

Interestingly, the majority of my first year criminal law class agreed with the minority and likened the case to a sporting event, wherein all of the participants were aware of the “rules” beforehand and that the practices were within those enunciated rules. Again, there appears to be a tension between social utility, public interest, and the specific facts of a particular case. In the Brown case, the right facts did not produce a satisfactory result and there is an aura in the case of the criminal law overreaching into the decision making powers of an individual. Although in Justice Gonthier’s view in Jobidon “all criminal law is paternalistic,” the law is still a reflection of who we are as a society and what we stand for and cannot possibly be distilled down to “but it’s for your own good” argument. Certainly the English Law Reform Commission in a number of Consultation Papers has raised similar concerns. For further reading on the subject, read Windsor Law professor David Tanovich’s paper entitled “Criminalizing Sex At The Margins.”

Subsequent Canadian cases, at the provincial appellate level considered the Brown case with facts involving bodily harm caused during sexual activity such as in the Ontario Court of Appeal 1995 Welch case and the 2013 Zhao case. Although those cases differ in the facts, Welch was concerned with consensual sado-masochism sexual activity and the Zhao was not, both cases, relying on Jobidon, found bodily harm in the course of a consensual sexual relationship vitiated consent. However, in discussing the Welch case at paragraph 79 of the Zhao case, Justice Tulloch stated:

“Ultimately, much of the analysis in Welch is focused on the sado-masochistic nature of the circumstances of that case. I am neither persuaded that the authorities cited by the appellant nor the conclusions reached in Welch are particularly helpful to establish a generally applicable standard or threshold by which consent is vitiated in sexual assault causing bodily harm cases. Furthermore, the social utility of intimate sexual relationships is significantly different from that of consensual bar fights, as such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sexual context as suggested by the ruling in Welch.”

Justice Tulloch identifies what is wrong with Jobidon: how can the Jobidon fistfight scenario adequately provide authority in situations of consensual sexual activity that does, one would argue, produce self-satisfaction. The 2011 JA case from the Supreme Court of Canada has not clarified the law in this matter and in fact has left the door wide open. There are aspects of sexual activity resulting in bodily harm in the case but the case did not turn on this aspect but on whether an unconscious person can consent to sexual activity. Chief Justice McLachlin, relying on the two strands of authority found in Jobidon and Ewanchuk said no – consent must be of an operating mind and advance consent is not recognized in law.  As for the “sleeping beauty” problem, when a spouse kisses a sleeping spouse, the law according to the chief Justice is not perfect and may result in unsatisfactory situations but there are more problems occasioned by relaxing the general rule, that there is no implied consent for sexual offences, than in permitting exceptions. Although legally we may understand the Chief Justice’s justification in reality her failure to provide a solution leaves an unsatisfactory atmosphere to the case. In many ways, Justice Fish’s dissent, which echoes Justice Sopinka in Jobidon, is attractive: it is the scope of the conduct which matters. This issue will clearly be at the forefront of a future Supreme Court of Canada decision.

Returning to Jian Ghomeshi, leaving aside the media tumult and without judging the various versions of the actual events, we should not be focusing on the conduct but on the scope of the conduct – was it beyond the scope of the consent given, not implied or assumed, but given in the context? This, I would suggest, would take us beyond the archives of the common law and into the realities of the modern age that in many respects is beyond myths and stereotypes and is a society where women, who are not in vulnerable situations, can make choices – consensual choices – to live their life on their own terms.