Does Legal Language Matter?

Law has a reputation problem. I don’t mean the lawyers-can’t-be-trusted trope that litters the internet and bad jokes circuit. I mean the other reputation for being boring, dull and obtuse. Sadly, law comes by this reputation honestly. To an untrained eye, that lengthy Supreme Court case makes one’s eyes glaze over. Oh, and that lease agreement produces a big yawn. But legal writing need not be dry and without life. In fact, legal writing is coming into its own as cases are written in a more engaging and accessible way. Take the Supreme Court’s commitment to “plain English” case summaries or the number of court jurisdictions that tweet out short and inviting case briefs (see Alberta Queens’s Bench twitter feed). 

But this accessible and engaging writing is also finding its way into case decisions; the bastion of legalese. Of course, “accessible” and “engaging” are sometimes two different kinds of writing. Let’s look at “accessible” writing. In legal circles, accessible writing is an access to justice issue. Not every person involved in the justice system has the luxury of a lawyer to inform them of the issues in an easily translatable manner. Admittedly, not all those who do have lawyers receive this kind of information either. In any event, particularly with the advent of free online databases of decisions such as CanLII, it is increasingly clear we in law need to be clear in our writing. More importantly, case decisions should be understood by those whose lives are bound up with the outcome. The accused, the victim, the injured party and defendant all need to be able to read the final decision on their case and understand what did or did not happen to them. To be sure, judges write for many audiences but none more deserving of knowing than the aggrieved parties to the action. 

Interestingly, most case decisions are not specifically directed to the parties. They are written in the third person. The judge references their names and does not generally write in the second person by using the pronoun “you.” This is in sharp contrast with many political speeches. John F. Kennedy’s famous inaugural speech of 1961, is an example of where “we the people” were specifically entreated to “ask not what your country can do for you—ask what you can do for your country.” Making writing personal brings the individual into the bounded space of the page. It brings a sense of identity and an emotive response to the words. This power of words to move people is likely the reason for not writing case decisions in the 2nd person as case decisions must also double for case authority and precedent. Like Sgt. Joe Friday in Dragnet, it is better to just stick to the facts, particularly if the purpose is not to create an emotional response but to create an authoritative voice. 

Yet, directing the decision to the person affected, particularly in sentencing an accused, can send the right (write?) message. If one of the principles of sentencing is to rehabilitate or even denounce the behaviour, making the sentencing words powerful can speak to the offender on a different level. I am not thinking of a strongly worded chastisement of an offender but an accessibly written reasoning for punishing the offender. No doubt this goes on without a written record as most cases managed in provincial court are done in the moment without written reasons. However, there are notable case decisions such as R v Armitage, 2015 ONCJ 64, where the sentencing judge, Justice Nakatsuru, intentionally sentenced the Indigenous offender in a language the offender could relate to and understand. In my 1L criminal law class, I have the students read parts of this decision as a prime example of meaningful plain language legal writing. It is beautifully written and as readers we feel we are in the courtroom, hearing the judge speak frankly and directly to Jesse Armitage. 

In another sentencing decision, this time a young offender, Judge Janzen of the British Columbia Provincial Court, directs the entire decision to the offender by using the pronoun “you” in R v BLA2015 BCPC 20. Another example, a powerful one, of speaking directly to the offender, is R v MacGregor2005 CanLII 33746, an impaired driving sentencing by Judge Ayotte of the Territorial Court of the North West Territories. In this sentencing, Judge Ayotte explains to the offender, at pages 2 to 3, why their conduct is serious and how it can impact many lives,

When you drive in that condition, you turn your vehicle into a potential weapon. It was observed by the Chief Justice of Alberta, not the present one but a few years ago, who, of course, is the Chief Justice of the Territories, that the only difference between the drunk who gets home safely and the one that does not, is pure dumb luck.

I can tell you that in the years that I have spent on the bench, there has been more than one occasion where some otherwise upstanding good citizen has sobered up the next morning to realize that he or she has killed someone. It happens regularly.

Many of our citizens don’t understand the seriousness of the problem. Parliament has gone to extraordinary lengths to fight it. I will give you some examples. Ordinarily, a Court has the option in imposing sentence, of simply imposing a term of probation without more. We are prohibited from doing that for a drinking driver, even a first offender. There must be at least a $600 fine.

Ordinarily, Courts are given a choice of sentence, fine, gaol, probation, or a combination of those things. In some cases, as you found out in your case, the Crown is given the power by serving this notice to take away that Court’s choice and require a term of imprisonment. It is unusual for a Court to lose its discretion. Parliament does not do that sort of thing lightly. They do it because of the immensity of the problem in this country of the drinking driver.

 The decision is in both first and second person as the judge explains the law, explains the public wrong and does so as if the judge and the offender are sitting at a kitchen table having coffee. This is an accessible decision, which uses the power of words in a compassionate and personal way. I also recommend this short sentencing by Judge Ayotte in R v Modeste2005 NWTTC 10. But there is no better testament to a well written decision than another judge’s comments. Judge Doherty of the British Columbia Provincial Court, in sentencing an offender in R v Paul et al, 2005 BCPC 693, relies on a decision of Judge Ayotte with these words,

I am impressed with the care that Judge Ayotte took in R. v. Lamouche, et al, in the Provincial Court of Alberta, Criminal Division, reported at 1998 ABPC 101 (CanLII).  When I say impressed, I am impressed with his opening and the reasons he sets out.

Sentencing is understandably well suited to the personal touch. It is more difficult to personalize reasons for conviction or judgment. But this does not mean it cannot be written in an accessible manner. For example, Justice Feehan, who now sits on the Alberta Court of Appeal, writes clear straight forward decisions in his civil and criminal cases (see e.g. 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd2018 ABQB 478). Such a task becomes more difficult in the appellate courts where the rule of law, not the rule of plain English is of main concern. On the appellate side, Justice Doherty from the Court of Appeal for Ontario, continually produces decisions that illuminate rather than obscure. This is particularly important for a court dealing with contentious issues. An example of Justice Doherty’s style is in the decision, R v N.S.2010 ONCA 670 questioning the accused’s constitutional right to confront a witness who testifies while wearing a niqab. The simplicity of Justice Doherty’s language is enhanced by his scrupulous fairness is arriving at a decision. He sees the competing interests and he describes them in “human” language. For example, at paragraphs 45 to 46 he writes:

Before turning to the constitutional concepts and analysis, I think it is important to remind one's self of what is at stake in human terms. N.S. is facing a most difficult and intimidating task. She must describe intimate, humiliating and painful details of her childhood. She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence. The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members. It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

[M---d.S. is facing serious criminal charges. If convicted, he may well go to jail for a considerable period of time. He will also wear the stigma of the child molester for the rest of his life. In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M ---d.S. in a very different way. M---d.S. is presumed innocent. His fate will depend on whether N.S. is believed. In a very real sense, the rest of M---d.S.'s life depends on whether his counsel can show that N.S. is not a credible or reliable witness. No one can begrudge M---d.S.'s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him. 

The two perspectives summarized above reveal the quandary faced by the preliminary inquiry judge. Both M---d.S. and N.S. have powerful claims that seem to lead to diametrically opposed conclusions. 

This kind of writing reflects the reality of criminal law and brings the issue to the citizen. This is accessible and engaging writing, but it is also powerful; not in the authoritative sense but, in the sense that through the power of words, the decision animates justice.

 A final comment on the use of the second person “you” pronoun. Notably, in the charge or instructions to the jury, the judge does use the pronoun “you.” Again, this device serves to bring directly to the jurors their personal responsibility to assess the evidence and arrive at a just and reasonable decision. The use of “you” attracts the duality of a jurors duties as well; each juror swears to act impartially and uphold the law but must do so collectively. 

There are some jurists who tend to the literary side. Their decisions are remarkable as they employ literary devices. Justice Watt, another experienced former trial judge and now appellate justice, writes in a muscular literary style, reminiscent of a par-boiled detective novel, as he starts his factual considerations in a clipped no-nonsense manner. A good example of this is the decision in R v Wolynec2015 ONCA 656 in which Justice Watt introduces the facts and the conclusion in paragraphs 1 to 9 as follows:

A lone bandit robbed a bank. He wore a grey hoodie. And sunglasses. He had a dark French goatee. He was soft-spoken when he asked the teller for cash. He made no gestures, nor any express threats. 

The next day, a few blocks away, the same thing happened. A lone bandit. A hoodie and sunglasses. A beard and moustache. But this time, the bandit presented a note. It said he wanted money. And that he had a gun. 

A short time after the second robbery, police found a grey sweatshirt in a garbage bin. On top of the sweatshirt was a newspaper. And on the newspaper, somebody had printed “have gun give me all money”. And on the top of the newspaper sat an open napkin similar to those supplied by restaurants. 

Police seized the sweatshirt. And the newspaper. But not the napkin. 

A few months later, a technician found a crusty tissue in a pocket of the sweatshirt. On the pocket and the tissue, a scientist detected evidence of bodily fluids. The chance of somebody other than Victor Wolynec being the source of the bodily fluids was one in 57 billion. 

A judge found Victor Wolynec guilty of both robberies and imposed concurrent sentences of imprisonment of 9 years. 

Victor Wolynec claims that the trial judge failed to adequately scrutinize weaknesses in the evidence adduced by the Crown and failed to grasp the position of the defence. As a result, he says his convictions are unreasonable and a miscarriage of justice. 

Victor Wolynec also challenges the sentence the trial judge imposed. He contends the sentence is too long, crushing any prospect of rehabilitation or reintegration into society. 

These reasons explain why I have decided that Victor Wolynec`s convictions are unassailable and his sentence fit. I would dismiss his appeal from conviction and grant leave but dismiss his appeal from sentence.

Note, how Justice Watt uses the first-person pronoun “I” to notify the reader that he takes full ownership of the decision. He also creates a partnership with the reader by stating the reasons to follow will provide an explanation for his conclusion. So too in the Armitage decision, Justice Nakatsuru uses the first person in the first few paragraphs to explain why he, the judge, was writing the decision for the offender. “I am writing for Jesse Armitage,” so says the judge at paragraph 5.

Yet, first person case decisions are unusual, despite the use of it by Justice Watt to frame his reasons. This is because case decisions are not about the judge personally or the judge’s feelings; the judge is not a party to the action but must be impartial and unbiased. The use of “I” perhaps personalizes the decision too much, making it more about the decision maker than the decision. Naturally, this does not mean a judge must abandon their past and become “sphynx-like” (see R v Adano2008 CanLII 23703 (ON SC) at para 23). A judge is a person too but not the first person in a case decision. Conversely, by eschewing the “I”, it could be argued the judge is depersonalizing the decision too much. In effect, we often need to read between the lines to understand the context of the decision and to humanize it. 

Recusal applications, in which the court is asked to step down from a case due to reasonable apprehension of bias, may be another kind of first-person decision.  Although, such applications are not to be viewed as personal affronts, it is difficult to suggest they are not. The test is an objective one; what the informed reasonable person would conclude. But the test is applied to a highly emotional situation where the trial judge is allegedly not acting “judicially.” The “I” is there no matter how arms-length the test may be and no matter how much law is recited.

 Engaging language in case decisions can also lean on humour. In a recent Ontario decision on a summary judgment application, Austin v Bell Canada2019 ONSC 4757, involving statutory interpretation and comma placement, Justice Morgan remarked at paragraph 47 that “despite their physically small stature, commas have created controversy in important places.” After more grammatical parries and thrusts, Justice Morgan concludes at paragraph 69, “I do not believe it was a legally induced comma.” Humour can relieve the tension, but it cannot take the place of legal principle; the decision is now under appeal. The case will be reviewed not on the basis of its candour but on the basis of its law. 

Another notably light-hearted decision is in Henderson v Henderson, 2016 SKQB 282, in which Justice Danyluk determines custody of the family pets. He opens the decision by stating a known truth that “Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.” The light heartedness turns a corner as the judge chastises the couple for wasting scarce judicial resources on the issue and urging them to settle this difference outside of court in an effort to “move along” the matter.

 For language we can all live by, the Charter decisions rendered by the Supreme Court of Canada are hard to beat. Interestingly, the Supreme Court Justices often use first-person personas, even when they are speaking on behalf of other justices. Justice Wilson, in particular, writes from the heart when in a separate but concurring judgment in R v Morgentaler, [1988] 1 SCR 30, she writes at page 164 that 

The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence.

This passage beautifully encompasses the yin and yang that is the dichotomy of the Charter; it encapsulates collective principles that are enshrined for the individual. Later in R v Lavallee, [1990] 1 SCR 852, she continues to bare what society tends to want to bury and tackles the legal tolerance of spousal abuse as a reflection of society as “laws do not spring out of a social vacuum.”

 Connecting the past to the present, Justice Abella knows how to open a decision by capturing the reader’s attention. On the pressing issue of media rights under s. 2(b), Justice Abella in her opening paragraphs 109 to 110 in R v Vice Media Canada Inc., 2018 SCC 53,maintains that 

 For twenty-five years, this Court has flirted with acknowledging that s. 2(b) of the Charter protects independent rights for the media. Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s. 2(b). The words are clear, the concerns are real, and the issue is ripe. A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury — there can be no democracy without it.

Similarly, in the earlier decision of R v DLW[2016] 1 SCR 402, Abella J commenced her dissent in paragraph 125 with the deft use of good old fashioned metaphor by stating that 
“This case is about statutory interpretation, a fertile field where deductions are routinely harvested from words and intentions planted by legislatures. But when, as in this case, the roots are old, deep, and gnarled, it is much harder to know what was planted.” The living tree, indeed.

But it is the s. 8 search and seizure decisions, in which the normative world collides with the legalistic one, where the writing rouses our passions and requires us the reader to take part in the decision making. In Hunter v. Southam Inc., [1984] 2 SCR 145, Justice Dickson, as he then was, in determining the constitutionality of what he called an authorization of “breathtaking sweep,” remarked the then “new” constitution has 

an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

This reiteration of Lord Sankey’s “living tree doctrine” repatriates our fundamental values as a Charter principle and gives the reader a sense of Canadian destiny and nationhood. Fast forward to a more recent decision with Justice Karakatsanis dissenting in R v Fearon,[2014] 3 SCR 621, in which she calls out what is at the heart of s. 8 when she reminds us at paragraph 103 that “an individual’s right to a private sphere is a hallmark of our free and democratic society.  This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination.”

There are many more examples of clear, accessible and engaging language used in case decisions. Instead of the exception to the well-worn trope that the law as written is unreadable, these kinds of cases should be the expectation we have of our justice system. Our laws are ours and to be accessible, readable and meaningful, we look to those who wordsmith on a daily basis to bring us into the legal system as a true partner in its creation. Does legal language matter? I leave it to the reader to decide.

 

 

THE SUPREME COURT OF CANADA LEAVES IT FOR “ANOTHER DAY”

As most “legalistas” or those ardent followers of new case law know, it is the most recent Supreme Court of Canada cases involving contentious and pressing legal issues, which attract our attention. We eagerly stand by at the appointed time, smart phone in hand, for that exquisite moment when the screen is refreshed to reveal the release of that much anticipated decision. As soon as the style of cause hovers into existence, the rush to read with speed commences. The race begins as we calculate how long it will take to comment or tweet on the case. The quickest and most fluid response is an indication of which legalista can digest and synthesize often hundreds of paragraphs of newly minted precedent. Admittedly, I have been part of this crowd commenting. The excitement one feels in reading a new case and the energy created by extending the legal mind beyond known parameters is truly exhilarating. 

 Yet, there is a similar excitement in the quieter cases. In those legal morsels of information, it is fun to find a pattern or trend. This connection between seemingly disparate and non-descript cases provides a richness to legal analysis. For this blog commentary, I decided to side step for the time the newest and notable cases of R v Le2019 SCC 34 and R v Barton2019 SCC 33to look at another recent decision R v Omar, 2019 SCC 32Omaris brief and easily discarded in favour of Le and Barton but when viewed in detail the case raises contentious and pressing issues worth discussing. Although Omar did not generate any buzz at the time of its release, it does ignite a worthy discussion on when the Supreme Court of Canada decides not to comment on an issue preferring to “leave” the “question for another day.”

The Omar decision is slim. It consists of 2 paragraphs worth of reasons amounting to 7 sentences. This is not unusual for a Bench decision given orally. It is written by Justice Brown, on behalf of a 7-person panel, who outlines both the majority and dissenting opinions even though Justice Brown himself is in the dissent. Assuming it is likely the readers of this blog commentary have not read the case, I will reproduce it in full as follows:

A majority of this Court would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal. The majority adds this. It may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day.

Justices Karakatsanis, Brown and Martin dissent, substantially for the reasons of Sharpe J.A. at the Court of Appeal.  The dissenters add this. It may be that consideration should be given to whether the police should caution persons that they stop and question that such persons need not remain or answer questions, but the dissenters would leave this for another day.

The appeal is allowed, and the convictions are restored.

There are a few notable comments to make on this brief scribe-like decision. I call it “scribe-like” as the tone of the decision brings to my mind the Ottoman Empire at its zenith when every military retinue included a Chief Scribe or Katib recording the events in a today’s version of live-streaming. This detached description of events leaves the reader with a lingering desire to hear more. Tantalizingly, the decision does “leaves” us with a desire to hear more about 2 significant issues. The majority “adds this”: a musing on whether s. 24(1) remedies can take the place of the s. 24(2) exclusionary response where there are multiple violations of the Charter involving sections 8,9, and 10(b). Still more intriguing is the dissent, who “leaves” us with “this”: the possibility of a SCC response to the habitual question left unresolved by case law of whether there is a positive duty on the police to advise a citizen that they need not remain and answer police questioning. As a criminal law professor who regularly teaches Moore v The Queen[1979] 1 SCR 195, a decision relying on the engagement of reciprocal duties between questioning police and responding citizens,I would welcome the much-needed modern approach to this issue. These two “we will leave for another day” issues are in fact of such pressing interest that this leave taking seems almost disingenuous and disappointing.

But this approach to “leave for another day” is not exactly unheard of in the annals of SCC decisions. A quick perusal of Supreme Court cases uncovers 80 such decisions since 1980 in which the SCC has left us on the edge of our seat. Looking at the number of such cases rendered on a yearly basis, not since 1997 has the Court done so in so many cases in one year. In 1995, there are 7 leave-taking decisions and in 1997 there 5 cases. So far, in 2019, there are 5 such decisions and the year is only half way complete. Looking at the number of such decisions per decade, over the span of 1990s, there are 32 “leave to later” decisions, which equals almost half of the total. The next decade, that of the years starting in 2000 and ending in 2010, has provided only 10 decisions, while the present decade from 2011 on to the present day has released 24 such decisions. 

What is the significance of this numeric counting? One could speculate that the divisiveness in the Court in the crucial period of the 1990s, where the Court rendered many split decisions, produced cases in which the Court left issues on the conference table in an effort to minimize the disagreements. The same can be said for 2019. Chief Justice Wagner has publicly announced his support for healthy dissenting positions. Perhaps this uptick in leaving matters for later is a result of this loosening of the consensus-driven decisions under former Chief Justice McLachlin. By deflecting some contentious matters to “later,” decisions can be rendered more readily on the core issues.

Yet, out of the 80 decisions, Omar stands alone as the only such decision rendered from the Bench. In a previous blog commentary, I wrote almost a year ago, entitled “Dispensing Speedy Justice”, I analyzed the increasing number of SCC decisions rendered in a summary fashion. It was my contention that the Court, in an effort to “walk the talk” from Jordan, is rendering more Bench decisions to move through the appellate backlog in an efficient manner. In doing so, the Court readily adopts lower appellate court decisions on the premise that if those reasons are well contrived then there is no reason for the Court to repeat or redo reasons. This position applies even in instances where the Court disagrees as many of these summary decisions involve dissenting positions. 

Omar is a reflection of this position but then some. The case is brief, involves a majority and dissent which approves of the lower appellate court’s majority and dissent respectively. But Omar is unique as we experience a Court flexing their SCC muscle by raising issues of import in a Bench decision without deciding them. By doing so, the Court can keep the decision brief and timely. The Notice of Appeal in Omar was filed January 2, 2019 with the final decision released after argument was heard on May 22, 2019, less than 6 months later. Contrast this with R v Barton, which also includes issues left for “another day” (see para 182), which took 7 months between argument and decision. Or R v Le, also leaving issues for “another day” (see para 128), which took 15 months for the filing of the Notice of Appeal to decision. 

In 2019 thus far, there are 12 criminal cases rendered orally from the Bench out of a total of 22 criminal decisions. With over half of the criminal appeals being treated in a summary fashion, it is no wonder that Omar takes this new form of decision-making even further. What this case suggests for the future is as thought-provoking as contemplating the newest cases such as Le and Barton. In the spirit of the SCC however, I will leave this discussion for another day. 

 

Sentencing to the Starting Point: The Alberta Debate (As Originally Edited By and Posted On www.ablawg.ca)

After R v Shropshire,[1995] 4 SCR 22, the future of starting points in sentencing seemed questionable but after R v M (CA)[1996] 1 SCR 500, the future of the concept seemed downright bleak. Yet, decades later in R v Lacasse,[2015] 3 SCR 1089, the Supreme Court still wrestled with the applicability of starting points in sentencing. Now, the province which embraced the concept is debating the efficacy of using this sentencing approach. Although the majority of the Alberta Court of Appeal has never wavered on the applicability of sentencing starting points, the meaning of such a tool has changed. In R v Ford2019 ABCA 87,the most recent pronouncement on the issue, the Court seems prepared to shed the past and move beyond this point of contention. 

 The Ford decision is brief and needs context. This requires a review of the principles surrounding starting points including a look back to the source of the principle. This review, however, and here is the spoiler alert, will not just engage a linear analysis of the law. It is not enough that we understand the divergent issues arising from applying starting points in sentencing to arrive at the final sentence determination in an individual case. We must also situate that starting point in the grander scheme of legal principle by asking the reason for using such a point in the first place. This exploration of the “why” requires us to understand what the attraction to a starting point in anything is anyway and whether, for this reason, we simply cannot shed the basic need to start from somewhere. For this part of the discussion, I will not start with the expected but with the unexpected.

A “starting point,” according to the online Cambridge Dictionary, is “a place or position where something begins.” This is a linear concept, reminiscent of elementary mathematical vectoring, where motion is conceived as implying a direction from A to B. We move through space and time from one point to another. A starting point anchors us in that space and carves out a place, a pinpoint, at which we can orientate ourselves. Without such concreteness of place and time, we would experience vertigo. We would be horribly out of place. A recent book by the theoretical physicist, Carlo Rovelli, explains this human need to belong to somewhere both literally and physically. In “The Order of Time,” Rovelli describes our entire world view as a human construct. “Entire” includes our conception of time. In fact, Rovelli persuasively argues, time is entirely a human construction which has little scientific basis. We created time to help us explain the world better and to better control it. Time, in other words, is humanity’s starting point. Time helps us understand events. If we can’t start with ‘In the beginning’ or the ‘Big Bang’ then we can’t completely appreciate the import and impact of those events. 

This brings us to Rovelli’s further contention that points in time are imbued with perspective. Perspective requires a particular point of view connected to the time event. According to Rovelli, “point of view is an ingredient in every description of the observable world we make” (at 153). This requires us to look at the world from within because that’s where we are located – within the world. Just as we cannot use a map to take us from point A to B without knowing where we are in relation to those points, we feel a need to make sense of the world through the eyes of the insider.

You may now ask how this travel through the space-time continuum relates to starting points in sentencing. It has everything to do with them. This seemingly side bar peregrination lends context to the debate on the space occupied by starting points in our sentencing nomenclature. Without considering the human desire to start from somewhere, we will not have the entire perspective before us. Without injecting the human perspective into an event, we are losing meaningful engagement with it and within it. 

To gain this meaning, we need to take a deep look at the source. Although Alberta did not create the concept of starting points in sentencing, it did perfect it in the 1984 decision, R v Sandercock,1985 ABCA 218. There, in the context of sentencing for a major sexual assault offence, Justice Roger Kerans, speaking for the panel which included the then Chief Justice James Laycraft, affirmed the Court’s “commitment to the ‘starting-point approach’ to sentencing” (at para 2). When I say, ‘the Court,’ I mean the entire Court. Justice Kerans, in paragraph 2, makes this unusual position clear. He states confidently that “All members of the Court were consulted ... and we are authorized to say that the conclusions in these Reasons were approved by a majority of all of the judges of the Court, as well as this panel, and are to be considered as a guideline.” With this sweeping statement, starting-points in sentencing in Alberta were swept in. 

Yet, the Court of Appeal was no stranger to that concept even then. The starting-point approach was first articulated as a guiding principle in the R v Johnas decision, 1982 ABCA 331. In Johnas, the Court considered the appropriateness of a starting-point for robbery in light of the sentencing of several offenders for factually similar circumstances but with differing personal backgrounds. Some of the offenders had criminal records, while others were youthful offenders (at para 2). All of the cases involved the late-night robbery of small retail venues, such as convenience stores and gas bars (at para 3). Although violence was threatened, no victims were harmed (at para 4). At the time, these types of robberies were of great community concern. In terms of general sentencing principles, due to the gravity of the robberies, the principles of deterrence and denunciation were of paramount concern rather than rehabilitation. On this basis, the Court found that “we must recorda term of three years imprisonment as a starting point in the seeking of an appropriate sentence” (at para 19). The word “record” is underlined for emphasis. Remember that word.

 In any event, the Court does recognize the individuality that is sentencing. The general principles in determining a fit sentence required the Court to “speak of generalities” but through the perspective of the individual and the circumstances of the offence to arrive at a fit sentence (at para 16). It is important to note the duality of this sentiment and the juxtaposition of terms. The specific becomes the general as the individual is sentenced to a term of imprisonment which fits the type. Yet, the Court does this as an imperative – “we must” – and “records” or keeps the information by storing it in the precedential archive for future use. The individual may still be present, at the point of the imposition of sentence but is the individual really present at that pre-recorded starting point? 

The Alberta Court of Appeal was not breaking new ground in Johnas but was, through clear court-driven consensus, normalizing starting-points and, in so doing, embedding the approach into well-established sentencing principles. Other provincial appellate courts were using a similar approach, but labelling is everything. In the Nova Scotia Court of Appeal, for example, the Court referenced a “minimum” term of imprisonment for the Johnas-type of robbery (see R v Hingley (1977), 19 NSR (2d) 541 at 544). This was not consistent with the Alberta branding of starting-points (Johnas at para 22). It was too literal and restrictive, permitting discretionary decreases from that term only in “exceptional mitigating circumstances” (see R v Owen (1982) 50 NSR (2d) 696). This seems to suggest that the Johnas Court still recognized that sentencing was an exercise in discretion. 

Yet, the Court does not use the word “discretion” in the decision but does use the phrase “judicial reasoning” (at para 31). Judicial reasoning is a process, or a form of analysis, employed by a judge in arriving at a decision. It involves how the sentence is determined not the mechanisms used. Starting points are therefore about the consistent application of sentencing principles based on a “norm for the type of offence involved” (para 31). This norm is developed “by comparisons to other cases, by experience, by the seriousness of the offence and by its prevalence” (para 31). It is only after the norm is determined that the Court then looks at the aggravating and mitigating factors involved in the specific case (para 31). Sentences, in other words, are objectively determined but through the unique perspective of the offender and the specific circumstances of the case. No two sentences will ever be precisely the same. In support of this position, the Court quoted Lord Justice Lane said in R vBibi, (1980) 71 Cr App R 360, who stated that:

We are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach. (at 361)

Nevertheless, the distinction between uniformity of sentence and uniformity of approach is subtle. For instance, in the UK, Lord Justice Lane’s jurisdiction, uniformity seems to be the key word for both approach and sentence. A sentencing council, comprised of legal and non-legal members, create sentencing guidelines mandated for use in determining sentence in court (https://www.sentencingcouncil.org.uk). This council strives for “greater consistency in sentencing, whilst maintaining the independence of the judiciary.” These guidelines go further than a matter of judicial reasoning by setting a sentencing point based not only on legal principle and case authority but also on public consultation. This approach widens the field of perspective.

Having pursued the starting point to its starting point, we can fast forward to the Supreme Court’s most recent treatment of the approach in the Lacasse decision. Thisdecision sets the standard for sentencing across Canada by not setting a standard. In that decision, the majority of the Court reiterated sentencing principles found in the common law and as reflected in s 718 of the Criminal Code but at the same time confirmed the essence of sentencing as a discretionary process. The sentencing judge, as the eyes and ears of the Rule of Law, is in the best position to fashion a fit and appropriate sentence. In this way, sentencing is a true partnership between the principles, which guide the judge, and the judge’s own sense of justice as see through the factual, legal and societal lens. 

This human touch to sentencing is therefore, according to Lacasse, connected to the standard of appellate review. Deference to the sentencing judge serves to contain appellate review to demonstrably unfit sentences resulting from an error in principle and law. The principle of deference, in this way, illuminates the process of sentencing by recognizing responsibility lays on that judge to craft a just and fair sentence. It is a deep responsibility indeed. A responsibility that despite the comments in Lacasse has resulted in division in the Alberta Court of Appeal on the parameters in which that deference must be wielded. Yet, the recent decisions rendered by the Alberta Court on the issue suggests the softening of the starting point from a hard start to a soft reference point. Such approach, is more consistent with the Supreme Court’s views of the issue.

There have, of course, been critics of the more flexible approach to starting points. One matter of contention in the Alberta Court of Appeal started before Lacasse but continued in earnest even after the release of the decision. In a series of dissenting opinions (R v Murphy2014 ABCA 409 (Wakeling JA is not in dissent but renders a concurring judgment) Rv KSH2015 ABCA 370R v Rossi2016 ABCA 43R v Vignon2016 ABCA 75R v Yellowknee2017 ABCA 60), and R v SLW2018 ABCA 235, Justice Thomas Wakeling believes appellate courts “must provide an analytical framework for the assistance of sentencing courts” (KSHat para 60,Rossiat para 56, Vignon at para 45 and Yellowknee at para 52). In each decision, Wakeling JA creates sentencing protocols for sentencing judges, akin to the computer coding language of “if, then.” These “subsets” or “bands of offences” (see e.g. SLW at paras 97­–98) reflect categories of sentences in which gravity of the offence is the variable measurement. If an offence falls within a band, then the sentence to be imposed is easily ascertained and articulated.

Although Wakeling JA perceived this framework as providing articulable sentencing structure within a discretionary decision, other appellate courts disagreed. As later commented on by the Manitoba Court of Appeal in R v PES2018 MBCA 124, Justice Wakeling’s effort created “rigid analytical categories,” which “unnecessarily limit the discretion of the sentencing judge.” The Manitoba Court emphatically rejected this unifying approach (at para 77). The Alberta Court of Appeal too rejected this model in R v Gauvreau2017 ABCA 74and  R v RGB2017 ABCA 359. In RGB, the Court made it “absolutely clear, it is not the law in Alberta that a sentencing judge must apply the three-subset model in imposing sentence for these types of offences” as mandated by Justice Wakeling. The Court went further by categorically rejecting the Wakeling Model and “sentencing grids in general” (at para 18). In the Court’s view, the approach “fetters the proportionality analysis” (at para 18). 

Notably, Justice Wakeling continued to recommend “an analytical sentencing framework” even after the rejection of it. In the 2018 SLW decision, Justice Wakeling makes the case for his approach by referencing other jurisdictions such as the UK, which favours such a framework. As mentioned, the UK experience involves community input through a sentencing council, which does provide detailed and refined sentencing guidelines for certain offences, albeit not all. In Justice Wakeling’s last effort on the issue, he pointedly remarks in SLW at paragraph 100 that “because Parliament has not established a sentencing commission with a mandate to prepare sentencing guidelines, it falls to appeal courts to do so.” Wakeling JA’s comments did not attract any further attention from the courts. 

In R v Suter,2018 SCC 34, a decision of the Supreme Court of Canada rendered on June 29, 2018, the same day as the SLW decision, the Supreme Court considers a sentencing appeal from the Alberta Court of Appeal. Notably, Justice Clement Gascon, albeit in dissent, imagines an “analytical sentencing framework” already available in the Criminal Code sentencing provisions. At paragraph 153, Justice Gascon describes the statutory scheme as “carefully drafted” and as provisions which were “enacted as ‘a step towards more standardized sentencing, ensuring uniformity of approach’ (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at 1.59).” Justice Michael Moldaver for the majority in Suter, reiterates sentencing ranges “as merely guidelines” (at para 24). He too confirms the paramountcy of the statutory framework in the Code by suggesting that “as long as the sentence meets the sentencing principles and objectives codified in ss 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.”It seems the Supreme Court views the statutory authority as sufficient sentencing guidance. 

Another, earlier riff, on an analytical framework for sentencing can be found in R v Hamilton,2004 CanLII 5549 (ONCA). There, Justice David Doherty envisions sentencing as “a very human process” (at para 87). In his view, “most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing” (at para 87). In discussing the appropriate range of sentencing for cocaine importation, Justice Doherty, after running through the various sentencing objectives, principles and sentencing precedents touches upon the meaning of a sentencing “range” for an offence. At paragraph 111, he explains how a range for a specific offence “does not determine the sentence to be imposed on a particular offender as the range is “in large measure a reflection of the ‘objective seriousness’ of the crime.” In other words, the range of sentence is a short hand for a constellation of objective criteria arising from a factual matrix including, in the example of cocaine importation, the amount of the drug imported and the commercial aspect of the incident. That range is then tailored to the specific instance by consideration of aggravating and mitigating factors resulting in a sentence which may be at any point throughout the appropriate range. Perhaps, even, Justice Doherty explains, the sentence imposed could be “well below” that range should the circumstances of the offence and the offender require it. Sentencing is thus humanized through the filling in of the objective criteria with real, tangible circumstances. 

Applying this sentiment, starting points may provide the objective point needed to focus or pin down the point of reference for a sentencing judge. But this point cannot be further objectified through a rigid container approach. Rather, the sentencing judge breathes life into the reference point through the just application of principles and objectives, which are responsive to and reflective of the narrative before them. In appellate review, this should mean deference to the sentencing judge who considered and understands the complexities of the case before them. It should not mean a recalibration of a sentence back to the starting point without a clear error as described in Lacasse. Using a renaissance art analogy, starting points should be the fresco cartoon, which roughly sketches and maps out the image, not the finished fresco imbued with colour and movement. That final piece is wholly created through the discretion of the sentencing judge.

Although the Wakeling experiment ended after SLW  in 2018, this foray into a more structured approach to sentencing was not so off the mark of the original starting point concept. Wakeling JA’s use of “subsets” or “different categories of offence classified by their degrees of seriousness or blameworthiness” (Yellowkneeat para 70), is essentially the same as the Court’s penchant for categorization through characterization of offences to assist in determining a starting point sentence. For instance, in R v Pazder,2016 ABCA 209,the court in an attempt to create a uniform approach to sentencing and uniformity of sentence, delineated distinctions between first level and second level offenders for commercial drug trafficking sentencing (at paras 13–14). The difference between the three-year starting point for level one, a more minor form of trafficking, and the four and a half year starting point for level two, involving the wholesale dealing of drugs, was found in the moral culpability or personal responsibility of the offender (at paras 15–17). The degree of responsibility could increase or decrease the sentence from the starting point (at para 18). Similarly, the LaBergecategories of culpability (1995 ABCA 196at paras 8–12) have resulted in highly regimented sentencing guidelines for manslaughter as sentencing submissions involve fitting the case into the desired sentencing category. Categories as a signature of blameworthiness was further approved in the five-panel decision in R v Arcand2010 ABCA 363, the pre-Lacassedecision upholding the Court’s approach to starting points and then again later in R v Hajar2016 ABCA 222, rendered after Lacasse

The Hajar decision reaffirmed the starting point mentality in the context of the starting point for a major sexual interference against a child. A five-panel court was assembled, producing a majority decision of three justices, a concurring judgment from one justice and a sole dissent. Even so, according to R v DSC2018 ABCA 335 at paragraph 40, “Hajar is binding on all trial judges in the province. Until it is overruled by the Supreme Court of Canada, or reconsidered by another five panel of this Court, it is binding on all appellate judges.” This statement directly responded to an earlier 2017 decision, R v Gashkanyi2017 ABCA 194,in which the majority essentially disagreed with Hajar. The majority in that case included Justice Ronald Berger, known for his dissenting positions. To be even more clear on the Court’s disapproval of Gashkanyi, in R v Reddekopp2018 ABCA 399, the Court unanimously reiterated that Gashkanyi “did not change” the three-year starting point for major sexual interferences cases (at para 5). The Court went further by clarifying that a starting point is “not a mandatory minimum sentence” (at para 10) but is only a point of reference. Interestingly, Justice Wakeling is a member of the Reddekopp panel, which decision was rendered nearly six months after Justice Wakleing’s last foray into an appellate-driven sentencing framework.

Yet Reddekoppwas but one of fifteen Court of Appeal decisions from 2018 discussing starting points in sentencing. For the most part, these 2018 decisions continue using the starting point as the focal point of the analysis. An exception is the decision in R v Gandour2018 ABCA 238. The Court, in allowing a Crown appeal against sentence, at paragraph 55, found the sentencing judge misconceived the scope of the starting point for a home invasion offence. According to the Court, the judge viewed the starting point as a “cap, not notional places to start the analysis.” This perspective suggests the starting point is a place to anchor the sentencing analysis and not mechanically binding number. 

However, a few months later in R v Godfrey2018 ABCA 369, the majority decision spends much of its time discussing the precedential effect of starting points. The majority admits that as per Lacasse and Suter“it is not per se an error in principle for a judge to sentence outside a sentencing guideline” (at para 4). However, in their view, starting points are “part of the law of the province” and are not “established in the abstract” (at para 5). In short, starting points are there to be recognized and considered as part of the sentencing process. Indeed, according to R v Arcand2010 ABCA 363, there is a three-step process in applying the starting point – akin to an analytical test (Godfrey at para 5 and 8). The Godfrey majority describes starting point sentences as “an assimilation and amalgam of all of the relevant sentencing considerations. They are not just ‘one more source of guidance’ among ‘competing imperatives’. They promote parity in sentencing, and consistency in weighing the gravity of the offence and the responsibility of the offender” (at para 6). In doing so, the majority in Godfrey cautions “local judges” to follow the starting point analysis and as they “are not entitled to invent their own standards in criminal sentencing isolated from national or provincial/territorial standards” (at para 7). Justice Brian O’Ferrall in dissent does not take exception with the concept of starting points as persuasive authority but contextualizes the starting point analysis as one of many “guides” to sentencing (at para 26). As Justice Gascon did in Suter, Justice O’Ferrall looks to statutory authority and codified sentencing principles as providing guidance as well (at paras 27–28). Appellate courts do also provide guidance but only to the extent that they review and analyze “hundreds of sentencing decisions” to arrive at the starting point (at para 29). In this way, starting point sentences are a grass roots venture, informed by the organic process of individual cases reviewed in reference to other cases. As Justice O’Ferrall aptly puts it “guidance is a two-way street” (at para 29). The concept of binding authority gives way to a communal perspective.

Starting points as binding authority or one of many guides to sentencing is another aspect of the concern with starting points as effective minimum sentences. Although in R v Arcand2010 ABCA 363(at para 131), the Court of Appeal emphatically found that “starting points do not amount to minimum sentences,” there was a notion earlier in the Supreme Court of Canada that “there is a risk that these starting points will evolve into de facto minimum sentences” (see Lamer CJC’s remark in R v Proulx, 2000 SCC 5 (CanLII) at para 88). With the advent of an increasing number of minimum sentences in the Code, the Alberta Court has continually reiterated the distinctiveness of starting points. The most recent decision commenting on this, R v Ford2019 ABCA 87, is both a decision on starting points and on the constitutionality of minimum sentences for sexual interference. In that decision both concepts are overlaid upon each other resulting in, as discussed further below, in a softer approach to starting points. 

This softer view seems to come “top up” as per Justice O’Ferrall’s comments in Godfrey through the application of starting points in the lower courts. The Honourable Judge J. Maher explores the meaning of starting points in R v BCP2019 ABPC 2. In this decision, Judge Maher compares starting points with sentencing ranges and discusses the preference, as a sentencing judge, for the starting point approach (at paras 11–14). In his view, starting points are more flexible and less confining than a sentencing range which involves “floors” and “ceilings” creating a rigid field of sentences absent exceptional circumstances (at para 12). Conversely, a starting point has no end or beginning and therefore releases the sentencing judge from the blinders created by a rigid range. Although this reasoning is attractive, it seems at odds with Justice Doherty in Hamilton and with the Supreme Court in Lacasse. Ranges may in fact provide more options as guidelines not requirements. Additionally, “exceptional” circumstances provide a generalized label that only garners meaning from the facts of each individual case. Still, as recognized in R v Alcantara2017 ABCA 56at paragraph 45, the starting point also provides “guidance” but does not “fix a mandatory number.” 

As later restated in Ford, in the Court’s view, there is a clear dividing line between mandatory minimums and starting points (at para 32). In Ford, the sentencing judge imposed 6 months imprisonment for sexual interference of a child, far below the Hajar starting point of 3 years. Although, Ford is notable for striking down the mandatory minimum of 12 months required for the offence under s 151, the Court, through the decision of Justice Martin, suggests Judge Maher’s view of starting points may in fact be correct. While still approving of Hajar, the Ford court upholds the 6-month sentence imposed on the basis that the accused suffered from mental challenges and was therefore less morally culpable. The starting point may be present in Ford but as a background reference, a reference point from which the sentencing could be viewed through the factual perspectives. This blurring of the starting point into a contextual guideline is evident in other 2019 Court of Appeal decisions such as in R v Paulson ,2019 ABCA 147and R v Costello2019 ABCA 104

Starting points are needed but they must not be applied in the vacuum devoid of individuality. In deep space and time without a reference point we are lost. So too in sentencing as defined in Reddekopp, a starting point is “as the term suggests, it is that point at which the applicable principles and objectives of sentencing are applied to the relevant circumstances of the case to arrive at a fit sentence” (at para 10). Points of light can guide us, but we must do so with the perspective of the within. Justice Martin reminds us in R v Boudreault2018 SCC 58 ,that “sentencing is first and foremost an individualized exercise, which balances the various goals of sentencing” (at para 58). The Ford decision suggests the Alberta Court of Appeal may finally be in sync with the “highly individualized” and “delicate balancing” of sentencing (see para 4 of R v Suter). Starting points or not, sentencing Courts must approach this exercise with the individual at the centre of that point – not alone – but in the contextual mix of legal principle and circumstances of the case to arrive at a fit, just, fair and proportionate sentence. This is the perspective which must lie at the core of the point from which sentencing is imposed.

 

A LOOK DOWN THE ROAD TAKEN BY THE SUPREME COURT OF CANADA IN R V MILLS

Perhaps we, in the legal world, should not have been surprised by R v Mills2019 SCC 22, the most recent decision on privacy and the application of that concept in the section 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Millsmay be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word.

I have already suggested the facts matter and they do. Mills was charged with offences, colloquially described as internet child luring offences. Through the medium of social network, luring does become decidedly lurid as sexually explicit messages and pictures are sent to entice children. In Mills, the contact with fourteen-year old “Leann” led to the “in person” meeting, which ended in the arrest. All seemingly run of the mill, so to speak. But what “made all the difference” in this case is the reality of “Leann” as a false identity for a police officer. In many ways, this investigative technique is no different than many other undercover operations such as police posing as sex workers or drug dealers. But what makes this technique unique is the manner in which the investigation was done. By filtering the technique through internet wires, the relationship possibly becomes a “private communication” attracting s. 8 Charter interest. At the core of this argument lies the “ghost in the wires” and whether there is a reasonable expectation of privacy in this type of internet communications. 

I say “this type” of “communication” because of the decision in R v Marakah,2017 SCC 59. There, the majority viewed text messaging between potential drug dealers as a private communication. Stripped of the bad personhood attached to that messaging, the majority called out the relationship engendered by such communication as attracting a reasonable expectation of privacy. Like the “reasonable hypothetical offender” (See e.g. R v Morrisey2000 SCC 39 at para 2)  or, to use the new age term, “reasonably foreseeable applications” (See R v Morrison2019 SCC 15 at para 170) used in s. 12 analysis, the messages become a statement of content neutrality (See Mills at paras 25, 110, 117­–122). There is no value judgment placed on Marakah’s bad choice of friends or even worse, his bad judgment to deal drugs. Instead, the focus is on fostering relationships, as in the law of privilege, and what it takes to protect and maintain private relationships in the context of law enforcement. In this way, the concept of communication as relationship-building is further explored in s. 8 through the relationships we see ourselves having with the state. 

Interestingly, the dissent in Marakah held onto the hard focus of hardware by emphasizing the container in which the communications were residing (at para 151). This view is an easy extension from previous s. 8 case law including the majority in R v Fearon, 2014 SCC 77, viewing the search and seizure or rather, as in the case of digital devices, the seizure and search of the device as the key to the analysis. However, this perspective failed to recognize the pervasiveness of the privacy issue throughout all aspects of s. 8. From standing to s. 24(2) exclusion, reasonable expectation of privacy creates the Charter space for the s. 8 discussion. Unsurprisingly, Mills does not step back into the container as the analytical driver of the decision. Instead, it is the meaning of relationships, which creates the patchwork of decisions in Mills

Yet Mills does not just define relationships worthy of s. 8 protection. Nor does the decision define relationships in a vacuum. Rather it defines relationships in the context of the normative standard embedded into the reasonable expectation of privacy analysis. In R v Reeves2018 SCC 56, Justice Karakatsanis, at paragraph 41, touted the “normative, not descriptive” standard as the overarching theme of s. 8 to acknowledge what we in the cyberworld already knew – that electronic conversations are human not machine directed. Instead of this free-floating concept of human relations, the majority in Mills takes this chimerical-like quality of normativeness and pins it squarely onto the Criminal Code. Just as the criminal law reflects our fundamental values by underlining those acts worthy of moral approbation through just sanctioning, so too does the normative quality of s. 8 reflect the morally based vision of a safe law-abiding society.

In Mills, the Supreme Court is not navel gazing or conducting blue sky visioning. In Mills, the majority looks directly at the conduct in question, no neutrality here, and sees the so-called relationship between a child “stranger” and a criminally-minded adult as unworthy of protection. Section 8 is not a shield; it is not the “happy place” where we are free from state intervention, and it is certainly not the private place where we can propagate illegal conduct to our hearts’ content. Yet, this normative view does not take away from the shades of privacy previously recognized by the Supreme Court. As in R v Jarvis2019 SCC 10, privacy has a universal meaning. In this way, a relationship stylized by the manner of communication or defined by a space where privacy ebbs and flows, what will be protected through s. 8 is deeply contextualized. This is vertical contextualization, in which the Court drills down deeply through the stakeholders’ strata. The “totality of the circumstances” is viewed not just through the accused’s lens, not just through the perspective of the victims, but also through the community’s sense of justice. As in other Supreme Court decisions, where the public interest shares space with individual rights (See e.g. R v Jordan2016 SCC 27 at para 25) normativeness involves collectiveness.

Nevertheless, rejecting the Mills scenario as Charter worthy still keeps the s. 8 conversation alive. True, in essentials, Mills is about what is not a privacy right under s. 8. Yet, the decision also provides the contours for what is or possibly still could be engaged by s.8. For instance, the intersection of electronic communications and Part VIinterceptions of that communication is still very much in issue. From the pseudo-majority of Justice Brown to the pseudo-majority of Justice Karakatsanis (I say “pseudo” as Justice Moldaver concurs with both decisions making both majority judgment worthy) including the minority view of Justice Martin, the presence of surveillance becomes the indicator of interception. For the majority, surveillance is decidedly old-school involving state authorities who are outside of but looking into the private lives of citizens, whilst Justice Martin flattens out surveillance as the state, no matter where placed, looking at citizens, no matter where located. Certainly, Justice Martin’s description is more attune with the Internet of Things and the connectivity we all now experience in which no-one knows who is watching whom. To distill the differing viewpoints on the issue, this is “watching” versus “intruding.” Of course, since Hunter v Southam[1984] 2 SCR 145 and the s. 8 textual conventions since that decision speak of state intrusion. Watching, on the other hand, is much more insidious, much more powerful, and of much more concern to the community sense of justice.

Another issue unresolved by Mills is the Charter applicability in the transitional grey area between state intrusion to state participation. If s. 8 of the Charter is not concerned with investigatory techniques in which the state initiates a conduit for enforcement, then when does s. 8 become relevant? This is where previous case decisions provide no clear answer. To see this obfuscation, we need to look the intersection of two scenarios. One scenario focuses on third party consent while the other engages the Mills situation emphasizes when state intrusion is used, without prior judicial authorization, for the purpose of implementing an investigative technique. 

Third party consent is not novel. Like reasonable expectation of privacy, third party consent can impact all stages of the s. 8 analysis. It impacts standing issues through the measurement of control. It impacts whether state authorities have lawful authority to seize and access an electronic device belonging to the accused or a third party. Just as privacy is not an “all or nothing” concept (R v Jarvis, 2019 SCC 10 at para 61), neither is third party consent (See R v Cole2012 SCC 53). People share ideas, homes and hearts. People can too share control and authority over an object or a conversation. Millsdistinguishes the state as initiator of the private communication from the state as intervenor into a private communication despite consent from a third party. There is still Charter room in the shared conversational space where a third party is involved be it the concerned family member who hands over a device or the individual participating in the communication.

Mills permits the state actor to be whomsoever they need to be for investigative purposes but also as the initiator of the ruse. The decision leaves open the scenario where the concerned or involved third party hands over a device and the state authorities continue the conversation under the cover of the true participant of the communication. Here, there is still an intervention or a looking into a communication albeit through the eyes of the known recipient. There is a relationship, however the majority or minority defines it. Even if the original participant consents, Millsdoes not pronounce on the efficacy of that unauthorized intervention. This means, in Supreme Court terms, that we can expect more decisions on the issue.

 You may have noticed that I referenced in my opening paragraph a much-loved poem by Robert Frost, “The Road Not Taken.”  The poem is famous for symbolizing life’s choices and where they may or may not take us. In fact, that is not what the poem is about despite our ubiquitous reference to it as a life changing or even life affirming metaphor. When read carefully, the poem suggests we misread our life decisions. “Ages and ages hence” we will tell a tale of how we stood on the brink and choose a more challenging life journey. Yet, in actual fact, there was no such life altering choice to be made at the time as the roads “equally lay” “just as fair.” Perhaps the same can be said of the Mills decision. The decision does not take us down a road that makes “all the difference” but through the same interconnectivity of privacy ideas we already have before us. ‘Same but different’ may be an apt description of this decision and other recent Supreme Court rulings. Indeed, the fractured decision best mirrors who we are as a society, which is far from cohesive or uniform. 

We are presently very much at the crossroads of privacy and in the criss-crossing wires of the Internet of Things. There is an element of uncertainty as we stand at that intersection. But uncertainty may not be such a bad or scary prospect. Looked at with eyes wide open we can assess the potentialities of s. 8 and see perhaps through the differing perspectives of Mills a way forward taking with us a vision of who we want to be.

 

Some Thoughts On Property, Privacy, and Criminal Law

I have been spending a good portion of my time outside of my regular duties with mooting competitions and writing a paper. One task is seemingly very practice minded while one purely academic. I see it differently. Engaging in an analysis of a case decision produces a repository of creative and imaginative arguments, which can have practical impact in court. To understand a case decision is to embark on a legal and literary adventure that serves as the inspiration, the creative spark, for new unknown approaches to old known areas of the law. 

To be sure, at first glance, doing a theft under case in provincial court has little to do with a Supreme Court of Canada decision on s 8privacy rights. Or does it? Theft is a public law offence yet by its very nature it is about private rights. This is mine not yours. It is about territory and possession. But hidden within the weeds, within the legal structure of theft, is the conflict between public and private which s 8 engages. This conflict can be seen, for instance, in the defence of colour of rightthat is embedded into the elements of theft. Although mistake of law is generally no excuse, when it comes to believing what is mine is mine, it provides a complete answer to a theft charge. That shows private rights abound in criminal law, but privacy, as a personal motif, is an entirely different matter. 

Private rights are not necessarily privacy rights. Yet, there are distinct parallels. In by-gone days when a phone was static, involved a dial, and could not fit in your pocket, the privacy concepts protected by s. 8 were territorial and oriented around the immediacy of personal space. Although s. 8 was in place to protect the person and not a place, it did protect the person’s personal territorial space. Territorial space may not be as solid as territory as land, but it has density to it and can be visualized. Picture the street view of Google mapand the Pegmanwho can be plucked up, carried, and placed into a circle of space. We are that Pegman when it comes to s. 8. Every placement serves to define our s. 8 rights with a property-like quality. This is my space not yours. That is until modernity arrived to displace the solidity of territory. And with that newness came a totally different conception of privacy, cut free from the shackles of Google. Or, maybe more accurately, detached from the map that is Google to be re-imagined in the same cyberspace of Google, the internet platform.

How this new formulation of privacy impacts old considerations of property interests me. Section 8 search and seizure law has kept pace with modernity and changing societal values, but property law seems to lag far behind. Theft, for instance, involves the taking or conversion of “anything” under s. 322 of the Criminal Code. This taking deprives of the owner of that “anything.” Although, the “anything” is typically a tangible thing, it may consist of a conversion of an intangible, as is the case of a taking of a bank credit for instance. However, even this unseen anything is seen in the inner eye. We can all visualize and objectify a bank credit into money in our wallet. The solidity of which cannot be denied. 

The difficulty arises when the “anything” of theft is an idea or better yet as in R v Stewart, a 1988 decision of the Supreme Court of Canada, the theft of confidential information. There, a document containing confidential information, was copied, and therefore not considered a taking of “anything.” The information was still available to the original owner of the information and there was no deprivation. Policy dictated that such wrongs be righted through the civil law not underlined by the condemnation of the criminal sanction. This narrow view of what can be stolen may be driven by policy or even, as Justice Lamer suggested, by the desire to let the lawmakers in parliament create such crimes, but it is nevertheless an antiquated approach to what a person “owns” or “possesses.”

The decision in Stewartcertainly does not wear well when viewed in the s. 8 context. It also confirms that in the property crime world tangibles, or those things that can be objectified, matter most. In today’s connected world, it is mind over matter as tangibles dissolve into a web of technology. Parliament, at least, paid Stewartsome heed and did legislate crimes relating to the misuse of computer images and data. But these new offences seem to be a concession to Stewart, not in defiance of it. True, confidential information can be memorized and copied leaving the information still available to the original owner or originating source of that information. It is not, however, the availability of such information that impacts the deprivation resulting from the taking of that information. By taking the confidential information, through cutting and pasting or through storing it in the Cloud, the original owner or source of that information is deprived of control of that information and deprived of choosing when, how and in what format that information would be released and used. 

We can push the property envelope even further if we look at “taking” through s. 8 Charter REP (reasonable expectation of privacy) eyes. A taking of confidential information would be considered a search and seizure pursuant to s. 8 of the Charter. In s. 8, we see a movement away from the castle-like solidity of territorial privacy to the ephemeral empty cyber spaces where we build castles in the wires. It’s in s. 8 where the full expression of privacy as a virtue is protected and nurtured. Ideas, thoughts and confidences do not just reflect an attitude (despite thoughts to the contrary in R v Benson,2009 ONSC 1480) but form an individual’s biographical core. It is that taking of data, that deprivation of choice in terms of when and how we disclose our secrets, which gives property perhaps a new and different meaning under the criminal law.

 

 

 

Why Reconsider W(D)? (Cross-Posted From www.ablawg.ca)

I have written at great length on the W(D) decision, R v W(D)1991 CanLII 93 (SCC), and the extraordinary impact that case has on our justice system. In my recent article on the issue, aptly entitled The W(D) Revolution, (2018) 41:4 Man LJ 307, I posit that the decision reflects a watershed moment in the assessment of credibility in criminal cases. The case decision, outlining the analytical approach to be taken in assessing credibility when there are “two diametrically opposed versions”of events, revolutionized such assessments by providing a template for integrating factual determinations within the burden and standard of proof (see e.g. R v Avetysan, 2000 SCC 56 (CanLII)at para 28). The W(D) state of mind was one that ensured that the principles of fundamental justice as distilled through the special criminal burden and standard of proof, would remain front and centre in the ultimate determination of guilt or innocence of an accused. This is not to say that the path towards enlightenment has not been strewn with difficulties. To the contrary, to recognize the imperfections of the decision and to experience the twists and turns of W(D) as pronounced upon in future SCC decisions, is to appreciate the W(D) ethos even more. W(D) has needed reinterpretation and reaffirmation throughout the decades since its release, but the question of whether it needed a reconsideration was at issue in the recent decision from the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (CanLII).

Before we consider whether we reconsider W(D) there may be some of you, albeit I am guessing not many, who are unaware of the decision and the principle for which it is named. In W(D), the jury, as the trier of fact, was faced with competing narratives from the complainant and the accused on a sexual assault charge. The accused was convicted. On appeal, the issue was the manner in which the trial judge instructed the jury on the task of assessing the disparate evidence. This concern was not a new one. Previous appellate decisions had warned of the “credibility contest” conundrum in which the trier of fact improperly believes they are obliged to base the verdict on choosing between two stark alternatives of believing the Crown evidence or the defence evidence (see e.g. Regina v Challice, 1979 CanLII 2969(ON CA) at 556). By seeing the decision as binary, the trier was not considering the legitimate alternative – that the trier of fact is unable to resolve the conflicting evidence and is simply left in a state of reasonable doubt. This error effectively shifted the burden of proof, requiring the accused to provide a credible explanation. 

Although the issue at the time of W(D) was far from unique, the error was common. Something more than appellate review was needed. This “something more” came in the form of Justice Cory, speaking for the majority in W(D), who attempted to break the cycle of error by suggesting an instruction that would convey the correct approach. An approach that would be simple yet convey the importance of the burden and standard of proof in a criminal prosecution.

Justice Cory, sadly, was wrong. W(D) has been referenced in 9701 cases and counting. Notably, it has been referenced in 38 Supreme Court of Canada decisions. Of those 38, two of those decisions are from the past year, one, R v Calnen, 2019 SCC 6 (CanLII), as recent as February 1, 2019. In Alberta, W(D) has especially resonated with 968 case mentions, almost the same number as British Columbia and twice as many as Saskatchewan. The Alberta Court of Appeal has considered the case a little more than 50 times from 2015 to present. In this context, it is unsurprising that the Alberta Court of Appeal felt it necessary to reconsider W(D)in Ryon. Indeed, the issue had been raised almost two years earlier in R v Wruck2017 ABCA 155 (CanLII), an application for judicial interim release pending appeal heard before Justice Watson, who later delivers a concurring judgment in Ryon. Presumably, the Wruck appeal was not to be after the bail application was dismissed and the reconsideration was left for another day and another case. Although Ryonappears to be just that case, as I will explain, the Court had already revisited W(D)in 2012.

Before we turn back the W(D) clock, we need to take a close look at the most recent decision in Ryon. Justice Martin writes for the majority. As mentioned, Justice Watson writes a concurring decision but essentially agrees with the Court’s general exasperation with yet another W(D) appeal – and a good one at that, as the Court allows the appeal on the basis of the W(D) error. Instead of sending the case back for a re-trial with a disappointing shake of their collective appellate heads, Justice Martin digs into the time vortex in an effort to rehabilitate, refresh and generally update the W(D) instruction. 

There are many reasons why Justice Martin feels the need to intercede. W(D)is a staple in the trial judges’ decision-making tool kit but it was a framework, a bare bones recommendation that required filling in. It was created with an eye to the factual matrix from which it came involving two competing narratives. It did not account for a more sophisticated evidentiary base arising from a complex factual and legal situation such as a case involving inculpatory and exculpatory evidence from the admission of an accused’s confession, or unsavory witnesses overlaying a Vetrovec caution (See Vetrovec,1982 CanLII 20 (SCC)) onto the instruction or trials involving multiple charges and included offences. In short, the W(D)instruction, when lifted directly from the pages of the decision, lacks context and therefore meaning. Many a trial judge, believing the words spoken by Justice Cory to be adequate, failed to realize the error of leaving the words alone to do the heavy lifting. 

Although Justice Martin fills in the framework to account for these variant situations at paragraphs 29 to 32 of Ryon, it is the common-sense admonishment underlying his decision that truly encapsulates the essence of W(D). At paragraph 38, for instance, he advises us to “step back and consider the message intended to be delivered.” Later, at paragraph 48, Justice Martin reiterates the need for the instruction to be “contextual and responsive to the evidence.” Finally, after recommending a more inclusive instruction, Justice Martin at paragraphs 53 and 54 cautions that 

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

Like W(D), the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved. Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply ... However, reciting and relying solely on the wording of W(D), without elaboration, will not usually be sufficient in a jury trial. That portion of the charge must be responsive to the evidence and explained in such a manner that the jury is able to understand the message intended to be conveyed.

These are sentiments that apply to every situation in which the accused’s exculpatory evidence is pitted against the prosecution’s case. In the end, it is the trier of fact alone, equipped with the special criminal standard, who must use and apply their common sense, as nurtured by lived experience, to the set of facts before them. However, in the case where there is potential for a credibility contest, the concept of reasonable doubt as it applies to that evidence must be brought home to the trier of fact. As Justice Sopinka said in R v Morin1988 CanLII 8 (SCC) at 360, rendered before his dissent in W(D), “The law is clear that the members of the jury can arrive at their verdict by different routes and need not rely on the same facts. Indeed, the jurors need not agree on any single fact except the ultimate conclusion.” This freedom to fact-find is essential to our criminal justice system and through the judicious use of judicial instructions on how to get to that ultimate conclusion, we are ensuring that the verdict arrived at will be a fair and just one.

Although Justice Martin is right to bemoan the overuse of W(D)as a panacea for credibility assessments, he does seem to get too far into the weeds by over-instructing the trier of fact with all the potentialities of a W(D)situation. His comments on the sequence of the instruction, including which evidence must be considered first, may create a less flexible framework and run contrary to Justice Sopinka’s fact-finding vision as articulated in Morin. Granted, providing clarity on the type of evidence to be considered, exculpatory rather than inculpatory, is helpful, but to get into parsing evidence into types may cause more problems than it’s worth. For instance, the concern raised with applying W(D) to neutral evidence may result in arguments by counsel over what is neutral evidence and what is not. At some point we must trust the jury to come to a true verdict by allowing them to draw inferences from the evidence on the basis of their findings of fact.

Nevertheless, Justice Martin’s penultimate statement on what information should be imparted to the jury at paragraph 51 is helpful and does fill in the skeleton-like structure of the W(D) instruction. Of course, Justice Martin had ample opportunity to consider this as he expounded similar suggestions in his 2012 decision, R v Gray2012 ABCA 51 (CanLII). As an aside, that decision received quite a bit of traction with the Honourable Judge Gorman of the Newfoundland and Labrador Provincial Court who quoted the Gray decision in 13 cases between 2012 and 2014. I too will quote from Justice Martin in Gray at paragraph 45 in which he explains that “In other words, the instruction is a contextual, evidence‑sensitive, one that requires a trial judge to carefully mould it to the evidence and not just recite it in isolation with the hope that the jury will understand or figure it out.” Truer words have never been spoken—or, rather, they have been spoken but not listened to—but perhaps this time these words will have the impact they deserve.

I conclude this post with some final thoughts on conflicting narratives and criminal trials. The situation of competing narratives is not in and of itself unusual. A trial is a time anomaly. The trial itself is conducted in the present four corners of the courtroom, yet it is concerned with past events that lie outside of those courtroom walls. In many ways a trial borders on science fiction as it leaps through the time-space continuum. 

The trier of fact, who is in the present space, must turn the present tense into the past through the consideration of days gone by. In short, a trial is stuck in the past and the trier of fact needs tools to translate the past events into a language of the present. This is particularly important as at the time those past events were occurring, not everyone involved could see the future significance of those events. The narrative was not captured in pristine form at the time. A further “past meets present without future thought” problem is that often those events did not involve direct observers. The people living those events did not rush out and bring in a witness for future use. Indeed, these events are by their very nature done in private. Nor did these events necessarily produce animate items for future use at trial. 

The W(D) trial is a description of the past from the perspective of the complainant and the accused person. The trier must assess that information through a kaleidoscope of time, which collapses those past events into present time. But that is not all—those events are also filtered through legal rules and principles. This changes the texture of those narratives and gives them a different, special meaning. It is the application of those legal principles that frames the past so it may be used in the present time of a trial. This is the true message of W(D), which serves as a memorial itself by commending to a trier of fact a possible, but not the only, way to review evidence in coming to the ultimate decision of guilt or innocence. 

 Does W(D) need a reconsideration? There is not much wrong but much right about re-energizing legal principles and ensuring they are understandable, meaningful and relevant for those who must apply them. An update and a re-working can enhance the administration of justice. However, in that new look, we must retain the essence of that original statement and its raison d’etre. In the case of W(D), any reformulation must emphasize the linkages that must be made between credibility assessment and reasonable doubt. Without this crucial connection, a reconsideration is not doing W(D) justice. Justice must not only be seen to be done, it must also be done. The Ryon decision, in its aspect and essence, will go a long way of doing just that.

 

 

 

ENTER OR NOT HERE I COME? THE TENTATIVE (AND NOT SO TENTATIVE) VIEWS IN THE REEVES DECISION

Finally, a SCC decision where the concurring judgments discuss at length what they say they won’t discuss at length. It’s refreshing to read a decision that is so SCOTUS in approach – an Opinion – and two concurring Opinions at that. In R v Reeves2018 SCC 56, the newest decision from the Supreme Court building on the vast case law in the area of s. 8 of the Charter, the two concurring decisions by Justice Moldaver and Justice Côté take up an issue “benched” by the Justice Karakatsanis’s majority decision. In deciding Steeves has a reasonable expectation of privacy in a shared computer, the majority deems it unnecessary to decide the ancillary issue of whether the police entry into the home shared by the Reeves and his partner was legally justified in the first place.

This situation particularly resonates for me as a professor teaching 1Ls fundamental criminal law concepts. The cases I teach are rife with “we will get to that another day” sentiment. In JA[2011] 2 SCR 440, for example, both the majority of the then Chief Justice McLachlin and the dissent of Justice Fish leave open the Jobidon issue of consensual sexual activity that involves bodily harm. Again, in Mabior[2012] 2 SCR 584, Chief Justice McLachlin, after referencing sexually transmitted diseases other than HIV throughout the judgment, disappointedly states that “Where the line should be drawn with respect to diseases other than HIV is not before us” (at para 92).  

The majority in Reevestries to employ a similar yet different tactic to deflect a decision on the issue. Instead of the tantalizing suggestion that there will be some case on the horizon which will engage the issue squarely on, Justice Karakatsanis suggests the issue may be present but assessing it is unnecessary because there was a s. 8 violation in taking the computer and, in any event, Reeves’s counsel conceded the entry was lawful (paras 20 to 21). Furthermore, and here is the brush off, the issue raises “competing considerations” and to proceed without “full submissions” would be imprudent (at para 23). As an aside, Justices Côté and Brown, in their dissent in Trinity Western University,2018 SCC 32, took this same tack on the sticky issue of the standard of review as they declined to comment on the Doré/Loyola framework“in the absence of full submissions” (at para 266).

Despite this firm “no,” Justice Karakatsanis continues to explore the complexities inherent in such a decision (paras 24 and 25). That it invokes the intersection of the public and private spheres of our lives. That it highlights the nuances apparent in how we live those lives, raising questions of where and when our privacy becomes shared and if privacy amounts to mere physical space. I have explored the multi-verse of privacy and space in a previous blog posted on my Ideablawg website entitled, “Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and Private Living Space.” Overlaid is the societal desire to maintain public safety through the investigation of crime.The issue is, as suggested by Justice Karakatsanis, “complex” and requires a “considered response.” 

Yet, the presence of “competing considerations” is exactly why the concurring justices decide to give a response, considered or otherwise. For Justice Moldaver, a tentative response is better than none. In his view, direction from the Court is needed, albeit not binding direction. Justice Moldaver often gives advice to lawyers and trial judges when the issue requires it. For instance, in R v Rodgerson,[2015] 2 SCR 760, Justice Moldaver, offers some street-smart advice on how to run a murder case before a jury. In Reeves, Justice Moldaver does something different – he anticipates the issue as an issue and, in a forthright, make no bones about it manner, he states his “purpose in writing this concurrence is to express some tentative views on the issue of police entry into a shared residence” (at para 71). But that’s not all, the reason for writing something that is not a ruling, that is not a decision, that is not really even true obiter dicta as it is “tentative,” meaning he has not really made up his mind, is to fill a gap that is “a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.” This statement alone packs a wallop as Justice Moldaver anticipates an immediacy that cannot wait until another day. The matter is so pressing that it cannot wait for full submissions and cannot wait until he has fully formulated his opinion. This is, in other words, a matter of critical importance. It must be said.

Interestingly, “tentative views” have been offered in the Supreme Court previously. In eight SCC decisions such “tentative views” have been expressed. In the oldest such decision, St. John and Quebec R Co v Bank of British North America and the Hibbard Co1921 CanLII 574, Justice Anglin is not expressing a tentative view as much as he is making it clear that the tentative view he had of the case was not dispelled through oral argument (p 654). The other seven SCC decisions do express tentative views on matters on the basis those issues were “not raised before us” as with Justice Cartwright dissenting in Smith v The Queen[1960] SCR 776) and Justice La Forest in Tolofson v. Jensen; Lucas (Litigation Guardian of) v Gagnon[1994] 3 SCR 1022.

An instance where “tentative views” matter, as they presage the binding ruling and have precedential impact, is in R v Bernard, [1988] 2 SCR 833. In that case, Justice Wilson’s concurring decision (at para 93 to 95), on the constitutionality of the Leary Rule limiting the effect of intoxication on mens rea, ultimately became the majority ruling of Justice Cory in R v Daviault, [1994] 3 SCR 63 (see also R v Penno,  [1990] 2 SCR 865 and R v Robinson[1996] 1 SCR 683). Not only did Justice Wilson’s opinion become law but it caused Parliament to hastily respond by adding s. 33.1 of the Code.

The “tentative views” presented in Reevesby Justice Moldaver are well-thought out and do not seem tentative at all. His analysis of the basis for the police officers’ entry into the shared home with the consent of Reeves partner is based in principle and on an application of years of case authority building upon police officer’s common law ancillary duties. In his 27-paragraph discussion on the issue, he deftly “tentatively described” (at para 96) the police common law duty to enter a residence to take a witness statement for purposes of an investigation. He sketches out five criteria to ensure the authority is carefully circumscribed through a practical and common-sense approach to the potential intrusive situation (at para 96). Despite his belief that his comments require fuller attention in the future, he continues the opinion with his further belief that his scenario for common law entry by the police, without reasonable grounds to believe an offence has been or that evidence will be found of an offence, is nevertheless constitutional (at para 97). He draws upon case authority which permits intrusive police action, in certain contained circumstances, based on reasonable suspicion. He concludes in paragraph 99, that as his criteria for entry is specifically constrained that it “may well meet s. 8’s reasonableness requirement.” Again, the discussion is not that it “will” meet or that it “does” meet but that it “may well” meet. The virtue testing is left for another day.

But the issue is not really left on the corner of the bench. In paragraphs 100 to 102, Justice Moldaver then applies his “tentative articulation of the lawful authority under which the police could enter a shared residence” to the facts of the case. He assumes his formulation is constitutional and finds it “quite possible” that up to the time of actual seizure of the computer, Reeves’s s. 8 rights remain intact. To add to this speculative brain-worthy exercise, Justice Moldaver decries the paucity of the record as it does not contain sufficient facts to properly determine the outcome of all of the five criteria formulated as part of the test.

In stark contrast is the decisive concurring decision of Justice Côté. There is nothing tentative about this presentation of the issue. She calls out the majority for declining to consider the issue considering “it was ably argued by the parties” and impacts the s. 24(2) analysis (para 105). Justice Côté takes the issue head on and makes quick work of years of carefully crafted s. 8 principles. She boldly finds that police can and should be entitled to enter a shared residence, without a warrant, based on the consent of one party alone. She does so in 13 paragraphs without the need to formulate or constrain police authority. She does so by focusing the s. 8 lens not on the accused but on the valid, subsisting and present consent of the co-habitant. In Edwards-like fashion she keeps the spotlight on the presence of the consent thereby dissolving the s.8 issue on the basis of an absence of a search or seizure. The entry is simply an everyday matter of invitation and is not the heightened arena of the state intruding into the privacy of a citizen’s life. With a flick of the switch, s. 8 disappears in favour of the down to earth realities of hearth and home. 

By deciding not to decide, the majority set the stage for a showdown but not the quick draw we are used to in reading a Supreme Court decision. Instead, we have in R v Reeves, a slow-motion decision that requires us to patiently await the right case to appear to give an authoritative voice to the tentative one. Let’s hope we don’t need to wait too long.

 

 

 

The Vice Squad: A Case Commentary on R v Vice Media Canada Inc

Criminal law, as observed in high-level Supreme Court of Canada decisions, is the legal version of urban life. Principles jostle and elbow through a crowd of issues and facts. This hum of urbanity gives this area of law an edgy unpredictable feeling. Conflict abounds and at times there is a winner take all attitude. Other times, the result in a criminal case is more nuanced as urban sprawl is contained and the chaos is smoothed over through the application of principled and balanced ideals. The decision in R v Vice Media Canada Inc2018 SCC 53, is one such case. 

The premise is not very original. For years, journalists have gathered sensitive and volatile information from hidden human sources. This is the stuff of smart investigative reporting and it offers insightful but sometimes explosive reveals. Such was the case in Vice. Let’s be clear, Vice Media is a go-getter media outlet: a newish kid on the block, who with equal doses of style and aplomb combined with grit and tenacity, present stories with the urban flair expected of a here and now media team. In this case, the journalist connected to a prize – a source who was the real McCoy – a suspected terrorist. They exchanged, as all sharp social media-ites do, a series of text messages. But these were text messages with a difference. The journalist, by communicating with a suspected criminal, entered the “it’s complicated” world of criminal law. More than merely conversational, these messages were potential evidence and as evidence attracted legal meaning and weight. It was as if a school-yard scuffle was transformed into a Las Vegas prize fight. The journalist investigation was instantly transformed into a police investigation. With that transformation, the rules of the game changed. What was driven by the written word became transported through the portals of law.

The police moved quickly to secure and preserve the information, “under glass” so to speak, through the legal tools available. A production order under s. 487.014 was obtained quickly, silently and ex parte. Production orders are the aide du camp to the search warrant regime in the Code. When issued, they require the person so named in the order to hand over to the police the subject document that is in their possession or control. It is all about evidence, trial evidence, and what kind of information is needed to prove a criminal offence in court. With a stroke of a pen, the legal world encases the whirly-burly world of media in a glass case. Dynamic communication is crystallized, dryly, into documentary fact. However, this colourless coup still has some drama left to it. In this encasement, the formalistic legal rules must grapple with the equally formalistic journalistic rules. Here Vice meets Squad and legal principles run up against another as journalistic source privilege creates an impasse. It is up to the Supreme Court to reconsider the legal and journalistic landscape.

In the end, the Supreme Court agrees with the lower courts by upholding the presence of the law as the paramount concern in this media story. The production is properly issued and must be obeyed. But this story does not go out with a whimper but a bang as the Court, though in agreement in the result, does not agree in how they get there. This is truly the excitement and energy of the urban landscape as two opinions on the issue emerge. The majority, hanging onto the creation of law by the slim agreement of 5, is written by Justice Moldaver, the criminal law heavy-weight on the Court. Justice Moldaver is an experienced criminal lawyer and approaches the decision with his usual hardboiled common sense. The concurring minority decision is written by Justice Abella with her innate sense of the human condition. The setting could not be better for a decision on the realities of the urban scene.

Justice Moldaver opens with the obvious in paragraph 1 of the decision. There is an analytical framework, found in the 1991 Lessard decision, to decide the issue. As an aside, the framework, pulling no punches here, involves the balancing of “two competing concepts: the state’s interest in the investigation and prosecution of crime, and the media’s right to privacy in gathering and disseminating the news.” The issue here however does surprise. It is not a “business as usual” question, involving the application of that long-standing framework, but involves a deeper question asking whether the framework is actually workable. The law can create but, so the argument goes, the law must be useable. Principles may be lofty and imbued with high-minded values, but they must work on the street-level as well. What is said in Ottawa must be later applied in small-town Dundas, Ontario or main street Nelson, BC. If it can’t work there, it’s of no use, legally or otherwise.

Does that balance work? The majority believes it does with some refinement. Tweaking has become the new tweeting at the Supreme Court level. If it ain’t completely broke then don’t entirely fix it. Renos are a less costly measure. Justice Moldaver suggests just such a quick fix by importing a case-by-case analysis that permits a less mechanical application of rules and by “reorganizing” the applicable Lessard factors. But then, and here is where a tweak looks more like a re-do, the majority offers a modified standard of review (SOR). This, in the words of Raymond Chandler’sPhillip Marlowe in The Big Sleep, is like finding a “nice neighborhood to have bad habits in.” The spectre of SOR runs deep in the Supreme Court decision-making psyche. Rearing its head here of all places gives this decision a decidedly bête noire flavour.

We need a feel for the atmosphere before we take on this part of the decision. We are in the heightened atmosphere of “the special status accorded to the media” (para 14) as envisioned under the aegis of the Charterpursuant to s. 2(b). Freedom of expression in the form of media expression is, as I quote the dissent of Justice McLachlin in Lessard, more than the vitalness of the “pursuit of truth.” It is an expression and act of community. The press is society’s agent, not the government’s agent. Their actions give meaning to “expression” but also to “freedom.” As such, the press is “vital to the functioning of our democracy.” But, spoiler alert, the gravitas of this sentiment differs as between the majority and the dissent in Vice. It is this difference, which I suggest drives the decisions in this case more than anything else. In any event, Lessard, impresses s. 2(b) with the stamp of vitality promised by s. 2(b). It involves a boisterous labour action at a post office, the bread and butter of on the ground media reporting. The crowd was video-taped and the police wanted the recording as evidence for a criminal prosecution. Incidentally, my most recent Ideablawg podcast on the Criminal Codediscusses the sections on unlawful assembly and riots. In contrast, the facts in Vice, touch upon democracy’s innermost fear of terrorist activity. 

I should add that an additional difference in Viceis the presence of a confidential informant, who also happens to be the potential suspect. The law of privilege is an evidential oddity as it serves to exclude evidence which would otherwise be relevant and admissible in a criminal case. Through the protections afforded by privilege, the identity of a CI is confidential. This in turn promotes relationships in which vital information is exchanged. A CI is more apt to divulge information to a journalist with the knowledge there will be no adverse repercussions as a result. The kind of adverse repercussions as in Vice, where the information is used against the CI in a criminal investigation. This kind of privileged communication within a journalist relationship is not absolute and is subject to judicial discretion. Even so, the CI/journalist relationship adds a sharpness to the issue. For a fuller discussion on the vagaries of CI privilege, read my blog posting on the issue here.

In this media infused atmosphere, context is everything. That should be no surprise to anyone who has read a Supreme Court case in the last decade. In fact, we might say that context is not just everything, it is royalty, as principles seem to bend to it. Case in point is the majority’s view of the Lessardfactor of prior partial publication. Under the unrefined Lessard framework, if the information of the criminal activity sought by the state has been disclosed publicly then seizure of that information is warranted. Indeed, those circumstances may heighten the importance of that factor, which “will favour” the issuance of the order or search warrant. Justice Moldaver finds the Lessard approach turns a factor into a “decisive” one (para 39). Although it is arguable whether Justice Cory in Lessard would agree with that characterization of his comments, Moldaver J’s approach, to allow for context in assessing prior publication by favouring a case-by-case analysis, is defensible. Again, smoothing out the complexities through a good dose of common-sense driven principles.

Another area for revision involves whether the probative value of the information should be considered in the balancing and assessment of the Lessard factorsProbative value is connected to that basic rule of evidence I earlier referenced; that all relevant and material evidence is admissible. Facts, which make another fact more or less likely, are admitted into evidence as such facts have value or weight. The basic rule is subject to other rules that may render evidence inadmissible, such as bad character evidence. It is also subject to the discretionary exclusion or gatekeeper function of the trial judge to exclude relevant and material evidence where the prejudicial effect of admitting the evidence outweighs its probative value. Probative value is a measurement of the strength or cogency of that evidence. Probative value is not an absolute concept but involves relationships or connections between evidence. In fact, the probative value or weight given to evidence must be viewed in the context (there’s that word again) of the whole case. This explains Justice Moldaver’s position, at paragraph 56, that the probative value of the protected evidence is a consideration in whether the evidence should be accessed by the State. It is “a” consideration, not a stand-alone Lessard factor, as the production order proves is part only of the investigatory stage. It would be premature to place too much weight on probative value before the entire case is yet to unfold. 

This leads logically to Justice Moldaver’s further caution that probative value should not be dictated by hard evidential rules. Again, contextually and functionally this would be contrary to common sense. A production order or a search warrant is at the infancy of a case. These are investigatory tools albeit tools which may lead to trial. The information to be accessed are facts not evidence. They have not been filtered through the legal rules engaged at trial. They are anticipatory. Therefore, Justice Moldaver declines to import the Wigmore criteria of necessity to the assessment (paras 52 to 58). However, by permitting probative value as an overarching factor, the Court is scaffolding evidential concepts onto the investigatory assessment. Probative value is considered in issuing an investigatory tool, probative value is weighed against prejudicial effect in determining admissibility of evidence at trial, and, finally, probative value is weighed in light of the whole of the evidence to determine whether the State has proven the accused person’s guilt beyond a reasonable doubt. As the standard of proof increases, how much that probative value matters also will increase.

So far, the tweaking seems more of an oil change and lube: something to make the engine work better. But now comes the overhaul as Justice Moldaver announces a change in the standard of review (paras 68 to 81). For the Supreme Court, the standard of review is to the reviewing court like provenance is to art museums. No one can really rely on the reviewing court’s decision unless there is agreement on the standard by which that original decision is assessed. The standard of reviewing the issuance of an investigatory order was determined almost 30 years ago in Garofoli. There, Justice Sopinka clarified the review was not a de novo assessment in which the reviewing court simply substituted their opinion. Rather, it is an assessment as seen through the eyes of the issuing judge, looking at the information before the judge at the time but with the benefit of any acceptable amplification on review. This test has parallels with the air of reality test, a threshold test used to determine whether a defence is “in play” and can be considered by the trier of fact. The air of reality test requires a consideration of whether a jury properly instructed and acting reasonably could acquit on the evidence. With a review of an issuing judge’s decision, the review court asks whether “there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (para 69). 

This test is a deferential one, albeit not completely so. Although, the issuing judge is best placed to decide, there is wriggle room for the reviewing court through amplification on review. Additionally, the view through the eyes of the issuing judge is, here it is again, contextualized by the evidence before the reviewing judge. For instance, the reviewing judge can consider an application to cross-examine the affiant of the Information To Obtain as part of its review. If permitted, the evidence may provide further context to the original basis for the authorization. The difficulty with this approach, Justice Moldaver notes, is where the authorizing judge issues processex parte with only the State providing the grounds for such authorization. Warrants and investigatory orders are typically issued in an ex parte manner. The real difference in the Vice scenario is the inability for the media outlet to argue, at the time of authorization, against issuance on the basis of s. 2(b) of the Charter. They can argue this upon review, but then the standard of review is no longer de novobut on the basis of Garofoli

Deference is the true standard here. By permitting a more contextual permissive approach, Moldaver opens the door to a moveable feast of standards for review that is appears tailor-made to the situation or facts (para 74 to 81). Moving away from deference may be fairer but it also creates a non-linear hierarchy within the issuance of such orders. It also replaces deference with the other “d” word – discretion. But with that discretion comes responsibility. I have written previously of the enhancement by the Supreme Court of the Gatekeepers function in the last decade. To me, this modified Garofoli is a further indication that the trial judge carries the integrity of the criminal justice system on their shoulders. So much so, that just as Newton has “seen further ... by standing on the shoulders of giants,” trial judges raise the public confidence in the criminal justice system to the highest level. They are foundational to our justice system. 

All of this tweaking may be meaningless considering the revisions to the Codeitself now providing for the special case scenario of journalistic sources and specifically those sources arising in a national security context. Yet, the Vice decision goes beyond parliamentary intent. Indeed, the minority decision of Justice Abella does just that. Her legal world view is not suggestive of the hard-boiled common-sense of the majority decision. Instead, Justice Abella calls out the majority by emphasizing the invisible undercurrent of the majority decision which resides in the Charterand the sanctity of the freedom of the press. If the majority can be stylized as a Raymond Chandler novel, then the minority is Clark Kent in the newsroom. Tweaking won’t do here but action. The level of action is not shoulder height but up in the blue sky. The minority decision reminds us of what is at risk when we diminish the freedom of the press to the margins. It also reflects the current conflicts we see in the world today. 

For Justice Abella, the time is “ripe” (para 109) for a new world view that provides for a distinct and robust freedom of the press in s. 2(b) of the Charter. Logically flowing from such recognition is the need to change the Lessardframework to fulfill this new world vision. Not only is this change required due to the enhanced delineation of media s. 2 (b) rights but is also required by the potential violation of the media’s s.8 privacy rights. Privacy rights, through previous Supreme Court decisions in Marakah and in Jones, have also been enhanced and emboldened by the social landscape. They too matter in the application of Lessard. The issuing judge still balances under this enhanced (not just tweaked) test but does so in the clear language of the gatekeeper (para 145). For Justice Abella, the vividness of Charter rights must be viewed with eyes wide open as the judge may issue the order only when “satisfied that the state’s beneficial interest outweighs the harmful impact on the press should a production order be made” (para 145). Notably, Justice Abella agrees with Justice Moldaver on the issue of prior publication, probative value of the evidence (para 149) and on standard of review (157 to 160). Essentials remain the same, but it is the context which changes. 

Context appears to rule in the rule of law. Context is important as rules should not be created in a vacuum. In the end, law cannot be wholly theoretical, or it fails to provide guidance. However, contextual analyses beget different world views and serve to underline the differences as opposed to the similarities. True, the Vicedecision is unanimous in the result but worlds apart in the manner in which the decision-makers arrived there. Maybe this is another new reality we must accept as we jangle and jostle our way through the everchanging urban legal landscape. Maybe we need to embrace context and loosen our grip on the hard edges of legal principles. Or maybe we won’t. And that is the beauty of context – it truly is in the eye of the beholder.

 

 

 

Casting Light into The Shadows: Finding Civil Contempt in the Envacon Decision (as originally posted on ABLAWG website at www.ablawg.ca but as tweaked by the author)

Case law and common sense tells us there must be a bright line drawn between civil and criminal matters. From standard of proof to sanctioning, civil justice diverges significantly from criminal justice. Despite this great divide, there are occasions when the two areas meet. When that occurs, the law creates something singular, defying categorization. Civil contempt is one such area. In the recent Alberta Court of Appeal decision in Envacon the Court grapples with these distinctions by emphasizing the criminal law character of civil contempt. The question raised by this decision is whether civil contempt’s criminal law character should dominate the proper interpretation of this unique application of law.

First, a civil contempt primer is in order. Civil contempt arises from English common law, although it can now be grounded in statute. It is a tool used by the civil courts to enforce court orders and to maintain the integrity of court proceedings. To be in contempt in the eyes of the law is to be in disobedience of that self-same law. Contemptuous behaviour cannot be countenanced and must be severely punished. A loss of liberty can be the result. A loss of legal rights is inevitable. Yet the kinds of behaviour captured under the rubric of civil contempt is varied. For instance, civil contempt proceedings can occur in the context of a self-represented suitor failing to attend case management meetings (Pintea v Johns2017 SCC 23 where the Supreme Court vacated the declaration of contempt) or when lawyers fail to comply with a Mareva injunction by disposing of assets as in Carey v Laiken2015 SCC 17(Carey) or when First Nations engage in a peaceful blockade contrary to court injunctions (Frontenac Ventures Corp. v. Ardoch Algonquin First Nation2008 ONCA 534). Civil contempt covers a wide net. It can arise from family matters, labour disputes, and environmental rights. An order of the court is one thread that binds them all. 

 Although a common law tool, it is found statutorily as well. It is in the statutory powers where civil and criminal law straddle the divide between them. In the Criminal Code RSC 1985, c C-46, for instance, section 127 creates a blanket offence for when any person, “without lawful excuse,” “disobeys” a court order, other than an order for monetary compensation. As worded, this offence can apply for non-compliance of a civil court order. Even so, this offence, although broadly engaged, is an offence of last resort. It cannot be utilized if there is another recourse, “expressly provided by law,” available. 

There are indeed other statutory recourses to the criminal law. Turning from the Criminal Codeto the Alberta Rules of CourtAR 124/2010, Part Ten, Division 4, provides a mechanism for non-compliance with rules of court and interference with the administration of justice under Rule 10.49. Civil contempt of court is found under Rules 10.51 to 10.53. These Rules specify the entire civil contempt regime including the process used to bring the alleged contemnor before the court (Order to Appear pursuant to Form 47, which can double as an arrest warrant), the mechanism for finding a person in contempt (Rule 10.52), and the possible punishment such as imprisonment “until the person has purged the person’s contempt” (Rule 10.53). Rule 10.52(3) provides criteria for declaring a person in civil contempt with the caveat that no such declaration will ensue should the person have a “reasonable excuse.” Similar powers are found for provincial court matters under s. 9.61 of the Provincial Court Act RSA 2000, c P-31. There, however, no such contempt declaration is made if the person furnishes an “adequate excuse.”

In the lower court decision in Envacon (2017 ABQB 623), Associate Chief Justice Rooke declared the Appellant/Defendant 829693 Alberta Ltd in civil contempt pursuant to the criteria enumerated under Rule 10.52(3) of the Alberta Rules of Court. The contempt related to a failure of 829693 Alberta Ltd to produce financial statements in accordance with three production orders issued by the case management justice. To assist in interpreting the requirements under the Rules, the Associate Chief Justice applied Alberta case law arriving at four key elements of a civil contempt declaration (Envacon QB at para 17). First, was the requirement for court orders to produce the statements. Second, was the notice requirement to 829693 Alberta Ltd of those orders. Third, was proof that the failure to produce was as a result of “an intentional act of a failure to act” on the order. Fourth, was the requirement, on a balance of probabilities, that the failure to act was performed without “adequate” excuse. 

As all elements were established, a contempt finding was declared. The remedy or more properly the punishment for the contempt was to strike the pleadings of 829693 Alberta Ltd should they continue to be in non-compliance with the orders. Solicitor and client costs for Envacon were also granted (Envacon QB at para 31). On appeal, the Court of Appeal found the first and second production orders were not “clear orders” and vacated the contempt relating to them (at para 68). The third production order, however, was clear and unequivocal requiring 829693 Alberta Ltd to produce the statements (at paras 14, 29 and 67). This left two real issues on appeal: whether 829693 Alberta Ltd failed to comply with the order and if so, whether 829693 Alberta Ltd had a “reasonable excuse” for that non-compliance. Ultimately, the Court of Appeal found 829693 Alberta Ltd did fail to comply with the order and there was “ample support” for the conclusion the corporation had no reasonable excuse (para 58). On the final issue of the remedy, the appellate court varied the penalty by removing the potential striking of 829693 Alberta Ltd pleadings and granting Envacon “costs on a solicitor and client basis” not on “solicitor and own client costs” (at paras 67 and 69. See also Twinn v Twinn2017 ABCA 419 for a discussion of the differences between the two forms of costs at paras 23–28).

The issues arising from this appeal are inter-related. A failure to comply may be connected to a reasonable excuse for doing so. A remedy is reflective of the context of the contempt and the corrective influence such a remedy may have. In other words, is the contempt power used to punish or is it used to coerce compliance? Is the court maintaining integrity of its processes or is it using the sanction, as in criminal law, to show the disapprobation attached to the contemptuous conduct? Here again we see that bright-line division between criminal and civil matter.

It is this bright-line which previous case law on civil contempt attempted to illuminate. In the 2015 Careydecision, Justice Cromwell at paragraph 31, commences discussion of the elements of civil contempt by comparing civil contempt with criminal contempt. According to the Court, criminal contempt required an element of “public defiance,” while civil contempt was primarily “coercive rather than punitive.” The Carey decision rightly demarcates criminal and civil contempt by invoking the traditional dividing line between the two areas of law. This public nature of criminal law versus the private matter of civil suits lends a contextual framework to the law of civil contempt as delineated in Carey and in Envacon. Although residing on two sides of the same coin, there is still a public aspect to civil contempt. The disobedience of a civil court order can add time and expense to a civil case, reducing access to the courts and impacting the administration of justice. In the era of Hyrniak v Mauldin,2014 SCC 7 and Jordan, 2016 SCC 27, where civil and criminal justice is at risk due to a complaisance attitude toward trial fairness, “public defiance” has a new and more robust meaning. Further, in certain circumstances, there can be a punitive dimension to civil contempt to highlight the public interest need for deterrence and denunciation. The higher standard of proof also recognizes the public dimension of civil contempt. In such a finding, the public is not indifferent but is engaged through the lens of public interest. The Envacondecision recognizes the overlapping aspects of contempt by requiring judges to impose remedies consistent with the specific objective of the original order. 829693 Alberta Ltd was required to produce financial statements as part of case management in order to “permit proper adjudication of the claims” (at para 67). The failure requires a coercive response not punishment.

The public versus private distinction not only impacts the remedy but also the interpretation of civil contempt requirements. The failure to comply is not an intentional or deliberate disobedience of the order itself. Rather, it is an intentional act to fail to act in accordance with that order. The difference is subtle yet essential. In the first instance, requiring intent to disobey the order, the fault requirement is high, consistent with the high level of subjective mens rea typically required for murder (intent to kill) or robbery (intent to steal). Such a high level of intention or, as Justice Cromwell in Careycharacterized it, contumacious intent, would “open the door” (Carey at para 42) to unjustifiable arguments against a declaration of contempt. The focus would no longer be on the act that creates the disobedience. Instead, the contemnor could argue there was no intention to disobey as they were mistaken as to the import of the order or they misinterpreted it, despite the order’s clarity. Such a situation would be incongruous. As suggested by Justice Cromwell, as he then was on the Nova Scotia Court of Appeal in TG Industries Ltd. v. Williams2001 NSCA 105 (TG Industries), it would provide a mistake of law defence for civil contempt when such a defence would be unavailable for a murder (TG Industries at para 11). Thus, the criminal and civil law analogy only goes so far. Civil contempt is firmly not criminal and the application of criminal mens rea principles have no place in the determination. 

In the case at hand, 829693 Alberta Ltd did not produce the financial statements (Envacon QB at para 17). There was some argument that the statements were not in 829693 Alberta Ltd’s power to produce as they were lodged with the CRA and the IRS. 829693 Alberta Ltd wrote to these organizations and provided the production order with no success. The requests made, however, were not in proper format (Envacon ABCA at para 23). Finally, the CRA sent documents, which were not complete. 829693 Alberta Ltd did not contact the CRA for explanation or with a further request (Envacon ABCA at para 26). Efforts with the IRS were no better (Envacon ABCA at para 27). The court of appeal agreed with Rooke ACJ that 829693 Alberta Ltd did not act with “a sufficient degree of due diligence” in attempting to comply (Envacon ABCA at para 28). 829693 Alberta Ltd thereby intentionally failed to produce as required by the order.

This finding, although logical, does impact the role of “reasonable excuse” in the contempt finding. If a finding of intentionally failing to act involves a due diligence discussion, then what kind of discussion is needed to determine if the person was acting without reasonable excuse? Is due diligence different than reasonable excuse and if so how? Carey is silent on this. Rooke ACJ considered both issues separately. In paragraphs 19 to 21 of his decision, Rooke ACJ found an intentional failure to produce based on a number of factors including that the order requirements were clear, that there was in fact no production of those statements, and that requests were “inadequately made” on the basis 829693 Alberta Ltd was “going through the motions,” the request lacked specificity and there was no “follow up.” (Envacon QB at para 21). Although “due diligence” is a loose summary of Rooke ACJ’s finding on that aspect, the discussion of “adequate excuse” ran much deeper. It is in that review, where the court is clearly going beyond the discussion points on 829693 Alberta Ltd’s failure to act. For instance, at paragraph 22, Rooke ACJ finds 829693 Alberta Ltd to have obstructed justice in the sense that their efforts to produce the statements from the CRA and the IRS was not the point. The point was their ability to produce by other means such as recreating the documents.

The Court of Appeal considered how the ruling in Careyon the intent required for civil contempt impacted the reasonable or adequate excuse requirement. Carey, in their view,did not change this requirement. Admittedly, Justice Cromwell in Carey did not directly discuss the impact of the reasonable excuse requirement. He did find the contemnor “was in contempt and his obligations to his client did not justify or excuse” the failure to comply with the Mareva injunction (Careyat para 3). However, on a review of the TG Industries decision, written by Justice Cromwell when he was on the Nova Scotia Court of Appeal, he suggests such an analysis may be pertinent to the discretion wielded by the judge after a finding of contempt (comments on the due diligence defence at paras 31 and 32). This is further supported by Justice Cromwell’s comments in Carey on the three elements of civil contempt, none of which include contemplation of an excuse, reasonable or otherwise (Careyat para 32). This omission may be explained by the context of Carey, which applies Rule 60.11 of the Ontario Rules of Procedure RRO 1990, Reg 194. That rule sets out contempt procedure but offers no criteria for a finding of contempt except that it may be found when it is “just” to do so. This is in contrast with the Alberta Rules that have clear requirements including a reasonable excuse determination.

The Court of Appeal does not, however, focus on these statutory differences but on the criminal/civil law differences. In their view, the discussion in Carey was about the level of intent needed for contempt, a classic criminal mens rea or fault element issue (at para 36). This did not, in their view, impact the reasonable excuse requirement, which, in the case of contempt, could impact actus reus or conduct (at para 37). By applying criminal law nomenclature such as actus reusand mens rea, the court is drawing an analogy between civil contempt and a criminal offence. Yet, the classic criminal law definition of an excuse given by Justice Dickson, as he then was, in Perka v The Queen, [1984] 2 SCR 232, 1984 CanLII 23 (SCC), suggests otherwise. An excuse, according to Justice Dickson, applies after the mens rea andactus reus are proven as it “concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor”(Perka at p 246). A successful excuse defence will result in an acquittal. The problem in Envacon is not whether the court properly identified whether the excuse pertains to mens rea or actus reus. The true problem with the decision lies in the use of the criminal law analogy in the first place. Civil contempt is not a criminal offence. The overlay of criminal law concepts onto civil contempt simply does not work. 

This ab initio error leads the court to further suggestive reasoning. At paragraph 37 of Envacon, the court explains how a reasonable excuse can relate to the actus reus

Particularly in the case of mandatory orders, an alleged contemnor may argue that his or her failure to do what the court required was not intentional. In these cases, a finding of contempt will turn on whether the alleged contemnor did enough to bring about the result the court order required. This enquiry is distinct from the question of mens rea or contumacious intent, which was at issue in Carey. Thus, not all “reasonable excuses” encompassed by rule 10.52(3) are excluded by the Supreme Court’s rejection of contumacious intent as an element of contempt.

The inquiry of whether the alleged contemnor “did enough” seems to be connected to whether they intentionally failed to do the act as required by the order, which Rooke ACJ did contemplate during discussion under paragraphs 19 to 21 of his judgment, separate from the “adequate excuse” discussion following those findings. The court of appeal appears to be conflating the finding of a failure with the reasonable excuse requirement. The reference, in paragraph 38 and 39 to Justice Cromwell’s position in Carey, that due diligence may be considered after a finding of contempt, hardly supports the court of appeal’s reasoning. As indicated earlier in this case commentary, Justice Cromwell’s position seems to weaken the applicability of reasonable excuse, not strengthen it.

Note as well the fluidity between the qualifier of that excuse as found in the various statutory pronouncements on civil contempt. There is “reasonable” excuse in the revised Alberta Rules as opposed to “adequate” excuse as indicated in the previous iteration. All of adjectives are further compared to the Criminal Code version of contempt with “lawful” excuse being the requirement. Although the Court of Appeal does not differentiate between these types of excuses, they should. Is the change in wording from adequate to reasonable mean anything in terms of meaning? If not, then the argument may be stronger for a civil view of cvil contempt. Certainly an “adequate” excuse suggests a much lower standard than even due diligence, which “reasonable” might invoke. Either way, comparing that terminology to “lawful” as required under the criminal law version of contempt puts us squarely into criminal law nomenclature. Such a term brings into the assessment those excuses defined by law or as found in other statutory authority. A much higher standard than merely due diligence.

The court of appeal, having found reasonable excuse as an element of civil contempt, discusses the burden and standard of proof for that element. It should be recalled that Rooke ACJ in assessing “adequate excuse” relied on previous Alberta case law that “once the actus reus of contempt is proven beyond a reasonable doubt, the contemnor may respond, on a balance of probabilities, with evidence and argument intended to try to demonstrate justification” (Envacon QB at para 23 and see FIC Real Estate Fund Ltd v Lennie2014 ABQB 105).Here again, Carey provides little assistance other than reiterating the ultimate standard of proof as proof beyond a reasonable doubt. There is no due diligence defence specifically contemplated in Carey and thus no need to suggest a different burden for the reasonable excuse requirement. 

It is also difficult to have a discussion on the burden of proof issue considering the clear message from Carey that civil contempt should be distinguished from criminal contempt. As such, civil contempt is unique and should not be viewed through the criminal law lens. There is no other civil construct requiring this high criminal standard. However, this high standard is required, not because civil contempt is criminal law, but because of the potential loss of liberty. It is the criminal law-like sanction that attracts the high standard not the criminal quality of civil contempt. The court of appeal by applying a criminal template to civil contempt obscures the real issues in the Envacon case.

In fact, the court of appeal had two viable options. The first option would be to find that reasonable excuse is subsumed by the Careycivil contempt elements and is not a separate decision-making requirement. The second option would be more consistent with Carey and TG Industries by finding reasonable excuse applies after the finding of contempt. Thus, reasonable excuse would have a gatekeeper discretionary function. Acting as a concession to human or corporate frailty, so to speak. Instead, the court of appeal entered into a regulatory offence type of discussion on burdens of proof and whether the burden shifted on the alleged contemnor to satisfy the court they had a reasonable excuse on a balance of probabilities. The court of appeal preferred to find that neither the legal or evidential burden shifted but that, depending on the circumstances, a prima facie case may require the contemnor to proffer some evidence of an excuse (para 48). This preference is no doubt resulting from the uncomfortable fit a shifting of the burden would be considering civil contempt is not prosecuted and is a judge-led determination. Nevertheless, making evidence of an excuse a tactical or strategic requirement makes good sense, but it still muddles the issues. The court of appeal in many ways creates something out of nothing and lends a criminal law nostalgia to a uniquely civil common law tool.

Civil contempt proceedings are not unique in Alberta. According to a CanLII database search, Alberta has 384 case decisions on civil contempt, second only to Ontario with 393 decisions. Civil contempt is an important expression of the court’s obligation to protect the integrity of the administration of justice. It is a powerful tool, which must be wielded carefully and sparingly considering the potential dire consequences. The stakes of a civil contempt finding are incredibly high as loss of liberty is possible and a loss of access to justice is inevitable. In an age where the spotlight of public confidence centres on the courts, civil contempt deserves clarity. The decision in Envacon may have cast more shadows on an area of law which appears to be cast in a light of its own.

 

What Precisely Is A Regulatory Offence? (Cross Posted From ABLawg at https://ablawg.ca/2018/09/26/what-precisely-is-a-regulatory-offence/)

This semester, I will start teaching 1Ls the first principles of criminal law. The main components of a crime, consisting of the familiar terms of actus reusor prohibited act and mens reaor fault element, will be the focus. These concepts, that every lawyer becomes intimately familiar with in law school, are figments of the common law imagination as actus reusand mens reado not figure in the Criminal Code. The terms are derived from the Latin maxim, “actus non facit reum nisi mens sit rea,”which translates as “there is no guilty act without a guilty mind.”  This stands for the proposition that the actus reusor prohibited act must coincide or happen at the same time as the mens rea or fault element. That maxim, however, fails to shed light on what those terms mean in law. Indeed, what exactly is a prohibited act or actus reusdepends on the crime as described in the Criminal Code, and what exactly is the fault element or mens readepends on a combination of common law presumptions, statutory interpretation, and case law. In other words, it’s complicated. Even more complex is the vision of these terms when applied to the regulatory or quasi-criminal context. In the recent decision of R v Precision Diversified Oilfield Services Corp2018 ABCA 273[Precision], the Alberta Court of Appeal attempts to provide clarity to these terms but in doing so may be creating more uncertainty.

Although apparently straight forward, appearances in the regulatory world are not as they seem. Even the facts of Precision suggest the dichotomy that is regulation. On a high-level view, the incident is straight forward: a worker is involved in a workplace incident and suffers serious injuries. But when the trial court wades into the minutiae of the moments surrounding the incident, the factual matrix becomes complex and more nuanced. The simple incident devolves into an evidentiary whirl of drilling rig operations and oilfield “jargon” (at para 8). Arising from this factual cacophony is an incident involving manipulation of a machine by more than one worker creating a toxic mix of automation and human fallibility. The result is tragic.

However, the facts alone do not reflect the entire legal narrative. They must be viewed through the legislative scheme, adding an additional layer of intricacy. The defendant company was charged with two offences under the Alberta Occupational Health and Safety Act, RSA 2000, c O-2 [OHSA]. One offence was of a general nature invoking a general duty under s. 2(1) of the OHSAto ensure the health and safety of the worker “as far as it is reasonably practicable for the employer to do so.” The other more specific offence, found under the Occupational Health and  Safety Code 2009, Alta Reg 87/2009 [Safety Code], sets out, in regulatory fashion, the detailed rules of workplace engagement (at para 38). The specific rule allegedly breached was s. 9(1) of the Safety Code, requiring the company to take measures to eliminate identified workplace hazards or, “if elimination is not reasonably practicable,” to control them. Unsurprisingly, these two offences are not self-contained but overlap; a not unusual occurrence in regulatory enforcement. 

This overlap in offence specification also results in an overlap in the factual foundation. Even so, at trial, the prosecutor took different legal approaches in proving each charge. The offences are strict liability offences, a form of liability proposed in R v Sault Ste Marie, [1978] 2 SCR 1299[Sault Ste Marie]. This requires the prosecutor to prove the actus reus beyond a reasonable doubt, from which the fault element would then be inferred. Upon such proofthe burden of proof shifts onto the defendant to prove, on a balance of probabilities, they exercised all due diligence or took all reasonable steps to avoid liability. This formula for strict liability remains unchanged since the seminal decision of Sault Ste Marie.For instance, in La Souveraine v. Autorité Des Marchés Financiers[2013] 3 SCR 756[La Souveraine], the Supreme Court’s most recent discussion of due diligence requirements for regulatory offences, the court reiterates these basic elements as essential for the fulfilment of regulatory objectives of public welfare and safety (La Souveraineat para 54). Effectively then, the due diligence defence rebuts the presumption for fault. The onus rests on the defendant to discharge this burden on the premise they have the best evidence of the reasonable steps and industry standards required to proffer such a defence. For the prosecutor, proof of the actus reus is of vital importance in founding a conviction. 

 Consistent with this strict liability notion, the prosecutor in Precision, for the general duty offence under s. 2(1) of the OHSA, relied upon “accident as prima facie proof of breach” pursuant to R v Rose’s Well Services2009 ABQB 1[Rose’s Well]. The Rose’s Well decision considered the same section in arriving at this position (Rose’s Well at para 68 and Precision at para 5). Quite simply, this was an “I think therefore I am” position: there was an accident, the worker was harmed, and Precision Corp. was the entity directing such work, ergo the prosecutor has proven the actus reus beyond a reasonable doubt shifting the burden onto the defendant. The more specific Safety Code offence, however, required a more detailed analysis of the actus reus. In neither of the offences did the prosecutor prove, as part of the actus reusrequirements, what was “reasonably practicable” in the circumstances. This, the prosecutor submitted, was a matter of proof for the defendant as part of the due diligence defence. The trial judge agreed, convicting Precision Corp. of both charges. 

On summary conviction appeal, the judge found errors in this approach. Although the “accident as prima facie proof of breach” could be sufficient to prove actus reus in some cases, it was “not a strict rule of law” (at para 27). At trial, the prosecutor failed to prove the commission of a “wrongful act” and as such failed to prove the required actus reus components of the general duty charge.  The “wrongful” part of that act could be found, according to the summary conviction judge, in the failure of Precision Corp.to do what was “reasonably practicable” to avoid the harm as required of the section. This phrase “reasonably practicable” was an essential element of the actus reusand without this evidence, the charges could not be made out. The appeal was allowed, and acquittals entered. It is that distinctive “reasonably practicable” phrase, which colours the meaning of the facts and in turn presents difficulties in discerning the not so bright line between actus reus and mens rea in the alleged contravention of general duty in a regulatory statute such as that set out in s. 2(1) of the OHSA.

This means that, unlike most appeals, the facts frame the issue and drive the legal principles. The conversation immediately devolves into a part legal, part factual debate on causation and fault, which requires a deeper dive into the facts. Even the characterization by the summary conviction appeal judge of the act as “wrongful” raises the level of the discourse up a notch. But how deep must the prosecutor go when it is a regulatory offence and not a criminal one? The exacting standards required of a criminal case gives way when the overarching objective is public welfare. Yet, where that line is to be drawn is an ongoing moving target that at some point must give way to clarity and immobility. An incident happens but how much detail is required for the prosecutor to meet the burden of proof? An incident happens but is it merely an unforeseeable accident? An incident happens but is it preventable and did the company do all that is “reasonably practicable” to prevent it? Already the factual matrix broadens into a general discussion of the company’s duty of care and the standard on which they must discharge that duty. However, in the world of actus reusand mens rea, as borrowed from the criminal law, the lines between act and fault are rigidly applied. The main issue in Precision is whether the lines as drawn in previous case law are workable in this regulatory regime of occupational health and safety.

 The majority, written by Madam Justice Veldhuis — yes, this is a split decision of the court suggesting this principle may have a future in the higher court — finds the phrase “as far as it is reasonably practicable for the employer to do so” is an active part of the actus reus. The minority decision of Justice Wakeling takes the opposite view, leaving the issue of reasonableness to the fault element analysis required in considering due diligence. Although the lines are drawn inPrecision, they are not written in stone. There are problems with both the majority decision and the dissenting opinion in this case, problems that are inherent to the regulatory/criminal law divide.

 For instance, this slippage from actus reus into mens rea seems natural when considering regulatory offences. La Souveraine, one of the more recent decisions of the Supreme Court on regulatory matters, makes this point. There, Justice Wagner, as he then was, for the majority of the court makes preliminary comments on the jurisdiction of the court to hear arguments on actus reus issues when leave was granted on the basis of mens rea due diligence concerns (La Souveraine at para 20). Justice Wagner finds the two issues “inextricably linked” (La Souveraine at para 26) and therefore the jurisdiction to consider both was evident. 

Here too, in Precision, it is difficult to separate the two concepts. In some ways this inability to distinguish clearly between the prohibited act and the fault element results in the finding of the majority in Precision that proof of what was “reasonably practicable” must be proven by the prosecutor as part of the actus reus. This circularity is embedded in the creation of strict liability as the compromise “half-way house” form of liability in Sault Ste Marie (at pp 1313, 1315 and 1322). According to Justice Dickson, as he then was, in Sault Ste Marie, this purely regulatory type of liability was needed to relieve the harshness of the absolute liability offence for which a defendant has little ability to defend themselves. Strict liability also assuages the concerns inherent in subjective liability offences, which by nature mimic the full mens rea requirements of proof from criminal law. Instead, strict liability permits a contained but fair due diligence defence; a defence mirroring the regulatory obligations of the defendant, yet in a manner which relieves the prosecutor from climbing into the psyche of the defendant and taking on the defendant’s expertise and knowledge  to prove a fault element beyond a reasonable doubt. With strict liability, the prosecutor need only prove beyond a reasonable doubt the objective facts of the actus reusthus triggering the response from the defendant to show they acted duly diligently. Key to this form of liability is the inference drawn from the actus reus of prima facie proof of the fault element. It is in this half-way form of liability where the mens rea or fault element can be found in the actus reus, binding the two concepts together. It is no surprise then that the majority in Precision sees the need for proof of a mens rea type concept as part of the actus reus, where, based on statutory interpretation, the legislature specifically emphasized the need for it. Without such a finding, the phrase “reasonably practicable” would have little to no meaning. 

But does it have meaning on this reading? Or is it merely a euphemism for “show me the facts.” Is not the reality of the majority decision in Precision merely another way of putting the prosecutor on notice that, with this offence as it is worded, they cannot simply rely on the surface facts of an accident but must do their own “due diligence” by leading evidence of the circumstances surrounding the incident? 

Notably, the majority’s decision may parallel similar findings in careless driving prosecutions, where actus reus and mens rea elements are interconnected and provide mutual meaning. In a recent decision from the Ontario Court of Justice in R v Gareau2018 ONCJ 565, the Justice of the Peace considering the issue made insightful comments on the “unique nature” of the actus reus found in careless driving under the provincial legislation (para 48). JP McMahon correctly points to the essential actus reus component of the charge involving a failure to meet the standard of a reasonably prudent driver (see also R v Shergill[2016] OJ No 4294 (QL) at para13). Proving this, the JP opined, “easily leads to confusion” as negligence becomes part of the actus reus proof process (para 48). The “practical effect” of this, according to the JP, is that a defendant will be acquitted if the defendant is able to raise a reasonable doubt as to whether they were driving below the required standard. Raising a reasonable doubt is all that is needed as the standard of care forms part of the actus reus, which must be proven by the prosecutor beyond a reasonable doubt. Raising a reasonable doubt, as suggested by the JP McMahon (at para 49), is an easier burden to meet than the standard of proof on a balance of probabilities, which is required for a due diligence defence (See R v Wholesale Travel Group Inc[1991] 3 SCR 154at pp 197–198 [Wholesale Travel]). The same can be said of the Precision decision by importing reasonableness into the actus reus, the enforcement mechanism weakens, bringing into question whether the objectives of regulatory regimes are being advanced.

As with all that is regulatory, the Precision decision engages a myriad of tough issues. So tough, in fact, that the court of appeal required further argument on a number of specific issues, which resulted in a divided court (at para 31). It is telling that this re-focus was required as the parties drifted back into the mens reaor due diligence tropes. As Gareau reminds us, looking at actus reus where a duty of care is involved is like looking into the fun house mirror that endlessly repeats the same image. Regulatory mind tricks aside, the issues in Precision span the legal repertoire with concerns involving the viability of long-held legal principles, application of the rules of statutory interpretation, proof and procedural requirements. All of this, of course, is in the context of promoting the pressing and desired societal objective of ensuring a safe and healthy workplace environment. 

Regulation of legitimate activities is a sign of good government and is at the core of our democratic ideal. Of course, there is room for a robust debate on the quantity of regulation needed. Naysayers tend to depict a “nanny state” where our lives are burdened with rules, while those in favour look to the benefits of regulation as providing incentives or nudges to individuals to make those safe and healthy life choices. Whichever side one takes, we all agree that, particularly in the workplace regulation is needed and the proper incentives to comply, considering the potential harm, must be vigorously enforced. Precision presents a situation, however, that is all too familiar in the regulatory field: when it comes down to the mechanics of enforcement, who is in the best position to bear the burden of proof and cost? More important is the question of which approach will promote the objective of providing the right kind of incentive without severely impacting the real economic benefits of such activities.

The added difficulty, as exposed in Precision, is the reality of the regulatory regime. In the regulatory world, there are no clear edges of the criminal law; rather, there are blurred signposts where the law is part criminal, through the application of criminal law concepts and terminology, and part civil law, as the conduct complained of are not true crimes like murder or theft but engages what we would consider legitimate activities. We want to promote those activities, but we also want to ensure these legitimate activities are performed mindfully, to use a new age term. Mindfulness means we need to recognize we are part of a collective of individuals all doing our own thing but doing it in the same space as one another. We want to be sure people conduct themselves with the other person in mind; when we mow our lawn, when we smoke a cigarette, and when we work, for example. Work, play, and leisure time is not, therefore, truly our own. Underlying this is our drive toward the market economy as we want to incentivize people and corporate entities to strive for innovation and production. In criminal law terms, this is foreign; we want to incentivize people to make the right choices, but we do not concern ourselves with how they make them, as long as they are within the boundaries our criminal law has set for them. Does it therefore make sense — common sense — to impose on the regulatory world criminal-like requirements when the two worlds, criminal and regulatory, are objectively and subjectively not the same?

As recognized by the Supreme Court in a number of decisions (See e.g., Beaver v The Queen[1957] SCR 531, Sault Ste Marie, and Wholesale Travel), there are fundamental differences between the criminal justice system and regulatory regimes. Justice Cory in Wholesale Travel succinctly described those differences: “criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care” (at p 219). Thus, the two systems are different yet, “complementary” (La Souveraineat para 90). Complementary does not mean one system eclipses the other. Complementary suggests one needs the other. Criminal law underlines our fundamental values and collectively speaks out when egregious wrongs are committed. Regulatory law safeguards the public interest and creates a safe place for us to live. We need both. It is therefore, as suggested by Justice Wagner in La Souveraine “essential not to lose sight of the basic differences between the two systems and, as a result, to weaken the application of one by distorting the application of the other” (at para 90). In the context of Precision, this caution can be applied to the fallacy of reading into the regulatory field the ill-suited rigidly defined criminal law concepts. For in the regulatory regime the individual rights paradigm is not paramount. Rather, the public good is supreme.

What will be the fallout from this decision? Certainly, prosecutors will be mindful of their proof and particularization obligations under the pertinent sections of OHSA. The exact phrase, “as far as it is reasonably practicable for the employer to do so” is integral to this legislation and the previous iterations of this section. Yet, a CanLII search reveals 561 legislative references to the phrase “reasonably practicable” in many occupational health and safety regulations across the country, covering everything from length of ladders (See s. 9 of the Federal Canada – Nova Scotia Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations, SOR/2015-2) to general duties of employers in Saskatchewan (See s. 3 of The Occupational Health and Safety Amendment Act, 2012, SS 2012 c 25). This decision reaches far and will reverberate in the workplace and the many “textbook” examples of public welfare legislation (Precision at 46), where a duty of care is required. It may also prove to be the Supreme Court decision which will precisely describe the constituent elements of a regulatory offence. This, we hope, will not be done in criminal law terms but in a manner befitting the objectives of our regulatory regimes.

A Fine Balance: Sentencing Suter in the Supreme Court of Canada (Cross posted from ABlawg @ https://ablawg.ca/2018/07/19/a-fine-balance-sentencing-suter-in-the-supreme-court-of-canada/)

Sentencing, Chief Justice Lamer tells us in R v M (CA), 1996 CanLII 230,[1996] 1 SCR 500, atparagraph 91, is “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” This sentiment neatly encapsulates all that is sentencing: an ephemeral yet earthy task in which the sentencing judge envelopes themself in a venture engaging both heart and mind. It is a “delicate” process, not heavy-handed, which requires a deft understanding of the human condition within the clarity of legal rules and principles. It is an art, not a science, meaning it is not a base computation or a tallying up of factors given pre-determined weight. Art also suggests artistic freedom and the discretionary nature we nurture in the sentencing process. But it is a determination statutorily mandated with well-defined rules and principles. There is wriggle room but just as we must stay within our lanes while driving, the sentencing judge must not over-correct or act erratically in imposing sentence. There are parameters. Some are, as indicated, statutory, as the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1of the Criminal Code). Other parameters arise from the profound sense of community that envelopes us when a fellow member breaks our laws – the laws that reflect our fundamental values. We feel the impact of rule-breakers, but we also feel their angst. We all know, to some degree, we too could be similarly situated, both as victim or offender. It is at this tipping point where the sentencing judge’s task becomes even more delicate as it searches for the fair and just balancing of all which is required to impose a fit and appropriate sentence tailored to the circumstances of the offence and the background of the offender. It is this delicate or fine balancing which is at the core of the myriad of issues arising in the newest Supreme Court sentencing decision in R v Suter2018 SCC 34

True to Justice Moldaver’s view, writing on behalf of the majority in Suter, that sentencing is a “highly individualized process” (para 4), the facts in Suterare highly unusual and particularly tragic. Mr. Suter entered a plea of guilty to a charge of failing or refusing to comply with a demand to provide a breath sample pursuant to s. 254(5) of the Criminal Code. A young child was killed when the vehicle Mr. Suter was operating crashed into a restaurant’s outdoor patio where the child and his family were enjoying a family meal. As a death occurred, the maximum punishment for the refusal to provide a breath sample was increased to life imprisonment under s. 255(3.2). However, the sentencing judge accepted Mr. Suter was not impaired by alcohol at the time of the incident. Indeed, the events leading to the incident involved a highly charged emotional event in which Mr. Suter and his spouse were arguing in the vehicle. Moreover, Mr. Suter’s refusal to provide a breath sample occurred after he received, incorrectly, legal advice to refuse. The fatality was widely publicized and Mr. Suter was a victim of a disturbing and brutal form of vigilante justice (paras 1-3). 

With this unique and troubling fact situation, the sentencing judge crafted a sentence seemingly far below the norm for the offence by imposing a term of four months incarceration with a 30-month driving prohibition. The Crown appealed the sentence to the Alberta Court of Appeal resulting in a substantial increase to the sentence to 26 months incarceration. Leave to appeal to the Supreme Court was granted. Unusually, the majority of the Supreme Court found both the sentencing judge and the court of appeal were in error (paras 5-6), resulting in the Supreme Court re-sentencing Suter (para 5). In the majority’s view, a term of 15 to 18 months incarceration was appropriate (para 103). However, as re-incarceration would cause undue hardship, it was “in the interests of justice” to impose a sentence of time served, amounting to 10 and a half months incarceration (para 103). The sole dissent of Mr. Justice Gascon found the sentencing judge imposed a fit and appropriate sentence and committed no error in law (para 109). He too allowed the appeal in part but restored the original sentence. Both the majority and the dissent upheld the sentencing judge’s imposition of a 30-month driving prohibition (paras 24, 104 & 202). 

With these facts firmly in mind, the issues arising in the case are as unique as the facts and the ultimate outcome. The issues do not arise from the facts but flow from them. There is a difference. In appellate advocacy, the appellate lawyer combs through the reasons, issue spotting and identifying arguable points based on knowledge of the types of appellate issues, which regularly arise in an appeal. For instance, are there grounds for an unreasonable verdict? Did the trial judge reverse the burden of proof in convicting the offender? These are just a couple examples of the specific appellate issues arising from a case. This is not to say that there may not be identifiable non-appellate type issues, such as errors involving substantive elements of an offence, but again those too would be easily spotted and seen to be arising from the facts. In a parallel manner, the appellate decisions based on these grounds swing from one issue to the next. Uniquely, in Suter, the issues flow and are not uniquely identifiable. There is no issue spotting as the legal issues move steadily and continuously resulting in the sensation that the Supreme Court’s treatment of this appeal flow. 

On this basis, setting out the myriad swirling of issues flowing from this decision is no easy task. Identification is also encumbered by the presence of a vocal dissent. In any event, on a meta-view of the decision, the first bundle of issues directly flow from the sentencing of Mr. Suter. One such point of discussion is on the use of vigilante justice, also characterized as a collateral consequence, as a mitigating factor in the sentencing balancing exercise. In Suter, the sentencing judge relied upon the incident in mitigation of sentence while the Court of Appeal found the judge erred in doing so. Both the majority and dissent in Suter agree that vigilante justice, as a non-state collateral consequence, was a mitigating factor to be balanced with all other considerations in arriving at a fit sentence. Justice Moldaver, however, restricted the use of such a collateral consequence to prevent “legitimizing” such illegal behaviour by accepting it as part of a legitimate legal process (para 58). Justice Gascon found the sentencing judge properly balanced the incident in arriving at a fit and appropriate sentence (paras 105, 109, 113-114 & 150).

The issue of the effect of Suter’s quasi-mistake of law can also be identified in this first sequence. I use the descriptor ‘quasi,’ meaning in this context, “apparently but not really” not for pejorative reasons but to emphasize what is at the root of the different world views between the majority and the dissent on this point of law. Neither Justice Moldaver nor Justice Gascon clearly and cogently describe what mistake of law truly is in legal terms. To be sure they discuss around the concept and drop hints, some large hints, of what their working definitions are but the reader is never entirely certain from where each position is starting. Without knowing the legal principles around this legal construct, it is the justification for the ultimate conclusion that becomes the legal construction of mistake of law. This serves to reinforce the feeling that this decision flows in a non-traditional legal judgment manner. Instead of starting with what mistake of law is in legal terms, involving academic scholarship (Glanville Williams comes to mind) and case law (mistake of law versus mistake of fact, colour of right and officially induced error have a large body of case law discussing the substantive issues) including a statutory analysis (s. 19, albeit there is a sparse discussion of this in the dissent), the Court presumes the principles and relies on the justification or their interpretation of whatever legal status they have given the term. Justice Gascon does come closer by challenging Justice Moldaver for this lack of a principled approach (para 125) but does nothing concrete to reverse the time machine and go back to the essentials of what mistake of law is in light of legal principles (paras 125 to 128). Instead, Justice Gascon fashions a template of his own in paragraph 128, in which he creates a sliding scale of blameworthiness based on a range of knowledge that could be attributed to Suter. Thus, the case authority discussion is derailed by the Court not focussing on the issues and instead allowing their decision to be pulled by the current of reasoning, justification, and the issue-spotting of errors found in one another’s reasons. 

Context is one reason why neither the majority nor the dissent gives clear direction on the mistake of law. This mistake of law, based in Suter’s reliance on bad legal advice to not provide a breath sample, is only notionally acting as a defence in order to provide mitigation of sentence. It is not acting as a defence per se. The slurring of the legal meaning of mistake of law is understandable considering the focus is not on the mistake, as operating as a defence impacting guilt or innocence, but as a mitigating factor on sentence to be balanced with all of the other sentencing considerations. Unfortunately, by not approaching the issue in a principled fashion, by allowing the reasoning to be the de facto substitute for those principles, we are never clear as to when and how mistake of law can be used on sentencing generally. The Supreme Court, as the final arbiter of all that is law in Canada, has not given us rules to live by or even rules to apply. 

The analysis of the mistake of law issue is an important one as it provides the dominant mitigating factor on sentence. Without a clear indication of the basis of this mitigation, the balancing is tainted, and the sentence imposed is rendered unfit. Using incomplete defences, which would not amount to a full defence to the charge, in mitigation of sentence is appropriate. This was not disputed in Suter (para 64 of majority judgment and para 125 of dissent and see dissent of Justice Gonthier in R v Pontes1995 CanLII 61 (SCC), [1995] 3 S.C.R. 44 at paras 75 and 87 and the Court in R v Stone,1999 CanLII 688, [1999] 2 SCR 290). The twist in Suteris the general unavailability of mistake of law as a defence unless it falls, as discussed below, within an exception such as mistake of mixed law and fact, colour of right and officially induced error. Again, without knowing the premise of the mistake, in law, we are unsure if the mistake is being used at sentencing as a defence that could not be proven at trial or as a defence unavailable at trial.

There is glancing discussion by Justice Gascon on s.19 of the Code which sets out the admonition that ignorance of the law is no excuse (para 127). There is, however, no discussion of when a mistake of law can be a defence such as when it is a matter of mixed fact and law (see R v Manuel2008 BCCA 143 at paras 16 and 17), a colour of right (see Justice Moldaver’s decision in R v Simpson2015 SCC 40, [2015] 2 SCR 827), or officially induced error such as in Lévis (City) v. Tétreault2006 SCC 12 , [2006] 1 SCR 420. Not referencing the Lévis decision is a surprise as it is that decision in which the Supreme Court outlines the very strict requirements for the defence of officially induced error, a defence traditionally only applicable in regulatory matters. A reliance on another person for knowledge of the law seems to fit squarely within the Suter form of mistake of law. Yet, there is no discussion in Suter of this point. We do not know under what form of mistake of law the Court is considering. Is it officially induced error as Justice Gascon seems to be suggesting or is it an honest but mistaken belief in law? Is the issue a mixed law and fact, permitting a defence? Or is it a question of scope and interpretation of the law, which is a feature of mistake of law? Does it even matter if the defence is available in law or not or what it may consist of if we are in the sentencing hearing stage where the procedural and evidential standards are relaxed? These and many questions are simply left out of this decision to be filled in by speculation.  Again, there are hints to their approach as the issue of the lawyer’s incorrect advice and the reliance on it is a point of discussion and disagreement. 

To be sure, duty counsel or Brydges lawyer (referring to R v Brydges1990 CanLII 123,[1990] 1 SCR 190, in which the Supreme Court found the state must provide an accused access to a lawyer upon arrest to comply with s.10(b) right to counsel under the Charter) does not, according to case law, fulfil the Lévisrequirement that the official who gives the legal advice be a government official authorized to speak on the issue. In R v Pea, 2008 CanLII 89824(ON CA) and R v Beierl2010 ONCA 697duty counsel was not considered an official for purposes of the defence. This point, seemingly at issue in an officially induced error scenario, was not discussed in Suter just as the defence itself was not directly raised.

Also, not fully discussed is the Pontesdecision, referenced earlier in this post, in which Justice Gonthier, for the dissent, enters into a principled discussion of the operation of s. 19 of the Codeand thoroughly discusses instances where a mistake of law may be a defence to a strict liability offence (paras 71 to 80). Although Pontesis decided in the context of regulatory offences, Justice Gonthier considers an earlier Supreme Court decision in R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 S.C.R. 941, on the required elements of the then Criminal Code offence of wilfully failing or refusing to comply with a probation order. In his analysis in paragraph 75 of Pontes, Justice Gonthier relies on Docherty for the contention that ignorance of the law may provide an excuse where knowledge of the law is part of the mens reaof the offence. The evidence of an accused’s lack of knowledge of the legality of the breach would negate a “wilful” failure or refusal to comply. There is no discussion in Suter on the mens rea required for the offence for which Suter entered a plea and subsequently this aspect was not raised.

There is another telling dimension to the mistake of law approach. Throughout the dissent, Justice Gascon calls the offence “administrative” (paras 107, 172, 181, 183, and 201) signalling his belief the offence is more akin to a regulatory matter. This characterization renders the mistake of law defence even more applicable based on its broader usage in the prosecution of regulatory matters where knowledge of a large body of regulation is difficult. Yet, the Suter offence is in the criminal code and is not regulatory. To characterize this offence as administrative in nature deflects the issue away from the reason behind the offence not just as an incentive to assist police in the investigation of impaired driving crimes but to provide a disincentive to refuse to do so in order to escape criminal or civil liability. Courts have characterized this offence in a similar way (see R v Seip,2017 BCCA 54 at para 36).

This result-oriented perspective occurs to such an extent in Suter that we are not even sure to what standard of proof the mistake of law must be proven for the mistake to be considered in sentencing. This missing piece acts to magnify the differences between the majority and dissent. Justice Moldaver enters into a discussion of Suter’s sincere and honest belief in the mistake (paras 62-70) akin to a mistaken but honest belief assessment needed for the defence of mistake of fact. Conversely, Justice Gonthier focuses on the bad legal advice, without which, Suter would not be in court, making Suter’s “moral blameworthiness ... infinitesimal” (para 174). No one meaningfully articulates the commonalties, other than mistake can be considered on sentence. It is as if the Court is working backward from the sentence to the mistake itself. This backward glance is the source of friction between the two decisions and is most readily apparent in their perception of the importance of the legal advice on the mistake.

This framing of the so-called mistake of law scenario leads into the very different perspective on the bad legal advice given to Mr. Suter. Justice Moldaver pins the mistake of law on Suter in terms of his belief of what the law required. In the majority’s construction of legal rights and responsibilities, it is the individual and their personal choices that control the effect of the law. Justice Moldaver takes a hard-line in finding a paucity of evidence on the true substance of the legal advice given and counters that absence of evidence with the presence of the police officer, who fulfills his Charter duty by cautioning Suter to provide a sample or face the consequences of a criminal charge. To take this position in the context of a sentencing hearing, where evidential and procedural rules are relaxed (see R v Lévesque2000 SCC 47, [2000] 2 SCR 487) shows a clear desire to minimize the impact of the mistake, in whatever form it is in.  

Justice Gascon pins the mistake on the duty counsel lawyer and then frames Suter’s duties within a Charter framework. The dissent leans on the Charter as an explanation for why Suter was acting under a mistake of law relying on Charter protections not as stand-alone arguments where rights are breached but to provide the basis for inferences as to why people choose to do what they do. Thus, Suter’s failure to blow, despite the police officer’s dire warning that a failure will result in a criminal charge, is waved away by Justice Gascon as a reasonable response of an accused to information from an agent of the state – the very agent who is attempting to build evidence against him. This emphasis on the state as the bad actor so to speak builds a much different narrative than the majority. It also fails to acknowledge some case authorities that have tackled the issue of officially induced error where the police caution to provide a sample is confusing (see R v Humble2010 ONSC 2995). Again, we are on uncertain ground by not knowing what the mistake of law is predicated on and who the “authorized” officials are in the scenario. The Suter decision is directionless on this and yet the appeal provided a perfect opportunity to provide clarity on these issues, despite the uniqueness of the fact situation. 

Nestled within these correlated issues and directly arising from the sentencing hearing, flows the discussion on the application of the 2015 Supreme Court decision on sentencing principles, R v Lacasse2015 SCC 64, [2015] 3 SCR 1089. Where Suter is set in a unique factual circumstance, Lacasse involves the all too often scenario of impaired driving causing death. There is, sadly, nothing unique about the facts there. Indeed, the Lacassedecision is broadly based and serves to clarify general sentencing principles and the role of the appellate courts in considering a sentence appeal. Suter, while applying Lacasse, resurrects some of those self-same issues. Notably, Justice Gascon dissented with the then Chief Justice McLachlin, giving Sutera déjà vu flavour. Some might even say based on Justice Gascon’s dissent, that far from applying Lacasse, the Court in Suteris doing just what Lacasse attempted to avoid – the “tinkering” of the quantum of sentences at the appellate level. In Suter, as in Lacasse, moral culpability, proportionality and gravity of the offence drive the foundational underpinnings of the decision.

The next issue, flowing from the first two, involves the larger discussion on the role of the Supreme Court in sentencing appeals – not just appellate courts – but as the court of final appeal. This is not just a purely jurisdictional discussion as found in R v Gardiner1982 CanLII 30 (SCC),[1982] 2 SCR 368, and as distilled by Chief Justice Lamer in paragraph 33 of the M(CA)decision. This is a complex interplay between the roles of trial courts versus appellate courts in determining fitness of sentence that flows beyond jurisdiction. Appellate intervention is hierarchical yet infused with deference. Deference to the trial judge is a continual appellate theme, as it symbolizes the core of our common law justice system. This is a system where judicial parameters are laid down in principle but not rigidly adhered to. There is, as mentioned at the start of this post, wriggle room for the judges to apply their own common sense and discretion, based naturally in law so as not to be unreasonable or erratic. It flows from judicial independence and from a desire to inject into the process a good dose of humanity in the form of equity. 

Deference to the trial judge in Suter becomes not just an issue arising from the appeal but becomes a tool used by the dissent of Justice Gascon (paras 161 – 178). For Justice Gascon, the majority becomes a court of first instance as they exercise their own discretion, wielded through their own judicial lens by sentencing the accused ab initio. All of this, to Justice Gascon’s chagrin, to ‘tinker’ with the sentencing judge’s perfectly principled original sentence. Justice Gascon goes so far as to ‘call out’ Justice Moldaver for obfuscating the real reason for the increased sentence imposed by the majority as a pandering to the public/government’s tough on crime agenda, particularly in the area of impaired driving (para 159). This deference is hard won as Justice Gascon himself admits that he would have “personally ... weighed the gravity of the offence more heavily than the sentencing judge” (para 170). His challenge to the majority is a clear indication that the court is divided philosophically, politically and legally. Deference in Suter becomes not just trial judge deference but deference to the Rule of Law, to the independence of the courts and to each other.

Indeed, Justice Moldaver commences his reasons by applying an earlier Supreme Court case, R v Mian2014 SCC 54, [2014] 2 SCR 689, on the scope of appellate review (see my earlier blog posting on the issue on my ideablawg website). Mian raises the spectre of a reasonable apprehension of bias at the appellate level when the appellate court raises issues not identified by appellate counsel. In Mian, it is not so much the raising of the new issue which is problematic but raising the issue without giving counsel the ability to respond. In Justice Moldaver’s view this opportunity was given in Suter

But flowing from the Mian concern is the additional problem or error of the court of appeal in sentencing Suter for offences of which he was not charged (paras 35 to 44). The procedural concept of an appellate court raising new issues on its own motion becomes an error in law as the court of appeal created a “novel and confusing” form of impairment “by distraction” akin to a careless driving or dangerous driving delict (para 38). According to Justice Moldaver, by doing so, the court of appeal was “circumventing the sentencing judge’s finding that this accident was simply the result of “non-impaired driving error” (para 38). Again, deference to the trial judge re-appears, as finding of facts is the province of the trial judge, who lived and breathed the evidence, not the appellate court, who merely reads it. This is particularly important in sentencing as a sentencing judge can sentence an accused on uncharged offences arising from the facts, but those aggravating features must be proven beyond a reasonable doubt (see R v Angelillo,2006 SCC 55, [2006] 2 SCR 728). There is a further concern with this position as it reflects on Justice Gascon’s concern with the majority’s decision to re-sentence Suter. Sentencing as an art is a collage of facts and principle where the emotional content of the accused’s background and the gravity of the offence colour the decision-making. Who better to do this than the original sentencing judge.

Indeed, who better? Briefly looking at previous sentence appeals decided at the Supreme Court level, the re-sentencing of Suter is unique. The Court may remit the matter back to the trial judge for imposition of sentence where the Court enters a conviction overturning an acquittal (see for example R v Bradshaw, [1976] 1 SCR 162,1975 CanLII 19 (SCC)Rv Audet, [1996] 2 SCR 171, 1996 CanLII 198 (SCC),and R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711(SCC)). The Court may also remit the matter to the lower appellate court for re-consideration pursuant to that court’s power under s. 687 of the Criminal Code to vary the sentence imposed (see for example Lowry et al v R, [1974] SCR 195, 1972 CanLII 171 (SCC)and R v Loyer et al, [1978] 2 SCR 631, 1978 CanLII 194 (SCC)where the Supreme Court ordered the matter back to the court of appeal to pass a new sentence upon hearing of sentencing submissions by counsel at page 204). Rarely does the Supreme Court re-sentence an Appellant but never before has the Court found both the trial judge and the court of appeal to be in error in the fitness of sentence imposed (according to my Canlii database search). The Supreme Court has no direct statutory authority to impose sentence as in the case of a provincial court of appeal. 

Although re-sentencing in toto has not happened previously, the Supreme Court has adjusted a sentence. For instance, in R v Morrisey[2000] 2 SCR 90, the Court varied the sentence to properly account for pretrial custody. Also, the Court has adjusted a sentenceto bring it into conformity with a joint submission on sentence such as in R v Anthony-Cook,2016 SCC 43, [2016] 2 S.C.R. 204. Prior to Suter, the closest the Court came to imposing a sentence is in R v Middleton,2009 SCC 21, [2009] 1 SCR 674, where Justice Cromwell, dissenting in part, found the sentence to be illegal but refrained from deciding what sentence he would impose considering the outcome of the appeal per the majority’s decision (see paras 112 -113).

Justice Gascon, to put it mildly, did not approve of this re-sentencing. As mentioned earlier, he found the new sentence imposed by the majority to be effectively a non-sentence as it amounted to time served. Consistent with this view, Justice Gascon labelled the majority’s decision as a “stay” of the sentence (para 158). The Supreme Court has stayed the passing of sentence in previous appeals but not in conjunction with re-sentencing, such as in Suter, where the Court actually applies sentencing principles and balances the required considerations to arrive at an actual sentence quantum. In R v LFW2000 SCC 6, [2000] 1 SCR132 for example, the Court found the conditional sentence was inappropriate and a term of incarceration was required. The then Chief Justice Lamer stayed the passing of that imprisonment as the offender had completed the conditional sentence and it would be “very difficult” for the sentencing judge to re-sentence (para 32). In another decision, the Court restored but stayed a conditional sentence order where the offender had already served the period of incarceration ordered by the court of appeal (see R v RNS2000 SCC 7,[2000] 1 SCR 149). Suteralso differs from R v Fice, [2005] 1 SCR 742, 2005 SCC 32 (CanLII), where the Supreme Court found the court of appeal erred in upholding an illegal conditional sentence order but stayed what would otherwise be a penitentiary sentence. The Court in Ficedid not enter into a sentencing assessment and the stay appeared to be with consent of all parties (para 46).

It should also be noted that the concept of imposing time served on a sentence appeal even if a longer sentence was appropriate is not unusual. Provincial appellate courts of appeal regularly take into account whether it would be in the interests of justice to re-incarcerate the Appellant when a sentence appeal is allowed (see R v Reddick1977 ALTASCAD 199 (CanLII)at para 4; R v Mann1995 CanLII 321 (ON CA)and R v Maxwell-Smith2013 YKCA 12(CanLII) at para 21). What is unusual is the fact that it is the Supreme Court doing it. Justice Moldaver, who sat as a trial judge and as a court of appeal justice, is very familiar with sentence appeals and the pragmatic outcomes needed. We see in Sutera clear division along the lines of practical realism on one hand and principled rule-based approaches. 

The last set of issues flow from the previous ones as we read between the lines of this judgment. Such a close reading reveals both this Court’s approach to criminal law and the sense of discordant approaches within the Court itself. Examples of this can be seen in the majority and dissent positioning around mistake of law and deference. It is also viscerally read in the tone and approach of Justice Gascon’s dissent with a specific part dedicated to pulling apart the majority’s position to the point of parsing in all of its minutiae the majority’s reasoning (paras 156 – 159). This dissection reminds me of the Supreme Court’s own caution not to cherry-pick or parse a trial judge’s reasons but to view the whole of the reasons in determining whether an error was occasioned and if there is an error, the significance of it (I discuss this more thoroughly in a soon to be published paper in the Manitoba Law Journal entitled The W(D) Revolution). Justice Gascon’s dissent shows this is easier said than done.  

This extensive point by point response to the majority and even the majority’s anticipatory responses to the dissent belie a tension hitherto not seen to such a degree in the Supreme Court. Even in the heady days of the Nineteen- Nineties when the court was fractured, there was a sense the Court was still attempting to talk to us, the legal community, albeit disparately, about the legal principles. Suter feels different. In Suter the judges are airing their laundry so to speak and speaking as they probably do behind closed doors where they engage in no doubt vigorous debate about the issues. Is this the transparency Chief Justice Wagner is encouraging from the Court? Or, as parts of this judgment feel, is this exclusionary as the legal community becomes the child in the room who can sense the tension from the parental tone of voice but cannot understand the meaning of the words? In some ways we are not privy to the deeper discordance that may lay behind this judgment – perhaps the differences between principal and pragmatism, which seems to permeate this judgment.

This leads us finally to a discussion of not what lies between the lines but how those lines are written and the judgment as a unique literary device that may challenge our idea of how the law is not only decided but also represented in Canadian case law. I mentioned this earlier, but the judgment reads as a discourse in which the majority and dissent write for themselves and between themselves. This may suggest an American approach where the SCOTUS render opinions, not judgments, and as such tend to be opinionated in their approach by consistently responding to one another either directly in the opinions or through footnotes. Whether Suter signals a change in writing style and approach will be a matter of record as this newly minted Wagner court renders decisions on decisive issues. 

This decision is important. It discusses novel issues in a novel way. It exhibits an approach from the Supreme Court which we have not seen before. It impacts an area of criminal law in much need of legal discussion considering much of what a trial judge does in criminal law focuses on the criminal sanction. But the Suter decisionis wanting as it leaves us wanting more. Sentencing is a delicate art and requires a fine balance between oft opposing principles. So too, a Supreme Court judgment requires that self-same balance to help us navigate our clients through the legal maze. Although Suter fails to achieve this balance, it does leave a legacy of the further work which needs to be done by the legal community 

Episode 55 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 62 & Finding the Military in Our Criminal Code (text version)

Yet again, we have come to a section criminalizing misconduct relating to the military under section 62. Such behaviours amount to mutinous or treasonous actions, which we have already encountered in the previous podcast on s. 53 and inciting mutiny(the text version is here). The existence of such offences in the Codehighlight parallel military offences found in the National Defence Actand give us a sense of the hierarchical structure of military misconduct. It also suggests the parallel systems of justice we have in Canada involving the criminal justice system and the military disciplinary system. We can envision an assault occurring on a military base as sanctioned under the court martial regime but that same act could also be envisioned as part of our criminal justice system and just as easily could have been heard in a provincial courthouse. 

In terms of the Criminal Code, there are many references to the armed forces, some overt and some not so easily observed. As previously mentioned, we have already discussed mutiny under s.53, as an offence impacting military discipline. We also already discussed s.52 on sabotage(see podcastand text version), treason offences under s.46(see podcastand text version) and s. 50 assisting enemy alien(see podcast and text version) as offences potentially affecting the security and welfare of our armed forces. We also touched on military duty and military orders under s. 32 of the Codeon the military’s authority to suppress riots (see text and podcast here).

Sections we have not encountered yet show the breadth and depth of the criminal law in military affairs. First, the Codedefines the “Canadian Forces” under s. 2as the armed forces “raised” by Canada but also defines “Her Majesty’s Forces,” again under s. 2, as “naval, army and air forces of Her Majesty” wherever “raised,” including the Canadian Forces. Some of the Code provisions act to protect not only Canadian forces but Commonwealth nations as well. We do find in the Codeoffences a wide variety of military related offences, from falsely posing as a military member (s. 419) to torture under s. 269.1.

At this point, we should pause to remember how military law fits within the criminal law rubric. I touched upon this issue much earlier in this podcast series under Episode 8discussing s. 5 of theCodeas a section indicating the independence of military law from the criminal law. The section, as discussed in that podcast, together with s. 130 of the National Defence Act, create parallel but separate modes of sanctioning a member of the military, be it through disciplinary action or criminal prosecution. Again, this previous blog/podcast outlines in a very summary fashion, the procedure. The blog posting also points out the weaknesses in the military system to adequately underline the repugnant nature of some military offences pertaining to acts of cruelty toward the civilians in foreign nations. These human rights violations go beyond military discipline and treaty compliance and enter the realm of the criminal law to such as extent that only prosecution under the Criminal Codeseems appropriate even though the military courts’ sanctioning ability does permit for criminal law like punishment. 

Since the writing of that blog posting in 2013, the Supreme Court in R v Moriarity, [2015] 3 SCR 485, 2015 SCC 55 has further considered the issue of the use of military discipline under the National Defence Act, in that case, for criminal offences involving fraud. The arguments raised issue with the overbreadth of criminal-like crimes that can be sanctioned under the military system. The decision, written by an unanimous court under Justice Cromwell, found that  ss. 130(1)(a) and 117(f) of the NDA, permitting such sanctioning, did not infringe s. 7 of the Charter. As noted by Justice Cromwell in paragraph 8 of the judgment, only murder, manslaughter, and child abduction offences are not incorporated under the military Code of Service Discipline, which provides the underlying authority for disciplining such misconduct. The decision also reiterates earlier case law (see the 1992 Généreuxdecision) that “Parliament’s objective in creating the military justice system was to provide processes that would assure the maintenance of discipline, efficiency and morale of the military” (see para 46 of Moriarity). In order to fulfill these objectives the disciplinary process may sanction military offenders with these “criminal” offences.

Turning back to the issue at hand, s. 62 of the Codeis a broad section, overly broad I will suggest, outlining offences relating to military forces, some of which are reflective of other offences in the Code. This section applies to both Canadian Forces and those foreign armed forces present in Canada as provided for in the working definition of “member of a force” under s. 62(2).

Section 62(1) reads as follows:

62 (1) Every one who wilfully
(a) interferes with, impairs or influences the loyalty or discipline of a member of a force,
(b) publishes, edits, issues, circulates or distributes a writing that advises, counsels or urges insubordination, disloyalty, mutiny or refusal of duty by a member of a force, or
(c) advises, counsels, urges or in any manner causes insubordination, disloyalty, mutiny or refusal of duty by a member of a force,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

This section seems to take all of the other offences in the Coderelating to military such as sections 46, 50, and 52 to 53 and provide an omnibus offence with aspects of treason (see s. 62(1)(a)), mutiny (see s. 62(1)9c), and sedition (see s. 62(1)(b) all bound into one section. However, this section appears to offer offences considerably less serious than the other criminal offences it seems to mimic considering the punishment differences. For instance, treason under s. 47 is an offence punishable by a maximum of fourteen years or life (see as previously mentioned podcast Episode 43). Section 62 involves criminal conduct similar to those more serious sections but sanctions the conduct as an indictable offence with a maximum of 5 years imprisonment. 

Historically, it should be noted, the section was brought into the Codein the 1951 amendments and was initially a section involving “Miscellaneous offences of a seditious nature.” For a full discussion of sedition, see Episode 54of my podcast. Notably, however, section 62 does not exactly mirror the sedition section under s. 59 and permits a much broader unlawful act. Sedition under s. 59 criminalizes seditious words and intention as publishing, circulating or advocating. Section 62 criminalizes words of insubordination, disloyalty or mutiny, in the context of the armed forces, that are not only published and circulated but also distributed, issued, or edited. Although distributing and issuing may be synonyms for publishing and circulating, the act of editing is not. There are no other offences in the Codethat consider editing a document for a criminal purpose as a crime. The reference to interfering with loyalty or discipline is reminiscent of the mischief sections under s. 430. The prohibited act of “influences” is also found in the obstruct justice offences under s. 139and corruption like offences under ss. 123 and 121. Although “advises” and “counsels” are akin to the counselling section in the Codeunder s. 22, “urges,” as a prohibited act, is not found in any other section of the Code. This shows s. 62 to be an amalgam of offences providing for a broad range of misconduct. 

The fault requirement can be found in the word “wilful,” which as mentioned in previous podcasts (Episode 44and Episode 45), indicates a requirement for subjective liability but depending on the interpretation of the word, may indicate a form of subjective liability requiring a high-level of intention. There is no case law on the issue.

In fact I found no cases directly on s. 62 in my database search. One possible reason is the desire to use the more flexible court martials process for such misconduct considering the approval for such usage in Moriarity. Furthermore, s. 11(f) of the Charter, giving the right to a jury trial for offences punishable by 5 years or more, specifically exempts military tribunal sanctions. Thus, making for a summary procedure under the military laws. 

This brings us to my final comment on this section – a comment you who have listened to my podcasts may be already tired of hearing – that in the reform of the Code, the government should be pressed to review all of the military-like offences in the Codefor revision and/or deletion. 

 

 

Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada ​​​​​​​

The hot off the presses decision in Groia v The Law Society of Upper Canada confirms my belief that criminal law matters in all areas of law. Criminal law principles are foundational and have a reach beyond criminal case law. This is most evident in the rules of evidence where those principles do not distinguish between areas of law. Evidence is evidence no matter the context. It is the courtroom that gives the rules of evidence its perspective, not any particular area of law. There is a caveat to that proposition: some evidential rules blossom and find deeper meaning in the criminal law context where Charter rights provide a signpost to evidential rulings. In many ways, Groia borrows from the texture of criminal law, not only in the specific areas I will touch upon in this blog posting. The concept of fearless and resolute advocacy, peppered throughout the Groia decision, defines the criminal defence lawyer’s duty to her client. A client who faces the ultimate sanction of our justice system, a potential loss of liberty and societal condemnation. In some ways, the fact that Justice Moldaver, who authored the majority decision in Groia and began his litigation career as a criminal lawyer, references criminal law principles in the Groia judgment should not surprise anyone. Yet, to see not only outright usage of criminal principles but to also detect an almost metaphysical reliance on criminal law analysis brings a welcome richness to this decision. It also helps that the case is situated in a quasi-criminal law environment as a prosecution by the securities commission. A prosecution with a decidedly criminal law bent as Jay Naster started his career as a Crown prosecutor.

I need only concentrate on a few paragraphs of the decision to illustrate my premise. First, the outright usage of criminal law principles is palpable in Justice Moldaver’s finding that Groia’s conduct did not amount to incivility. In Moldaver J’s view, Groia made an honest mistake in his understanding of the rules of evidence, mistaking the Crown’s obligation to disclose relevant and material evidence with an obligation to consent to the admission of such producible evidence. Crucially, this honest mistake was sincerely held, an important factor in the analysis on whether there was a basis for Groia’s in court conduct. As Justice Moldaver suggests in paragraph 93, requiring an honest but mistaken belief as the foundational precept for the civility analysis is taken straight from the 1980 criminal law Pappajohn decision.  

Pappajohn is itself a seminal case, and a foundational one at that, taught in all first-year law school criminal law courses. It provides the foundational elements of mistake of fact in a sexual assault context - the defence of mistaken but honest belief in consent. It is the start of a long line of cases where the Supreme Court struggles with the parameters of such a defence and when such a defence should be left to the consideration of the trier of fact, known as the air of reality test. It is also an infamous case, which at the time of the trial in the late '70s caused a shock wave in Vancouver high society as wealthy business man, George Pappajohn was tried, convicted and incarcerated for the rape of a real estate agent. The case eventually led to the 1999 Ewanchuk decision where the Supreme Court made it clear that no means no and only yes means yes. On the pop culture side, the Pappajohn trial is also one of the cases dramatized in the radio series, and then later  television series, created by George Jonas(journalist) and Eddie Greenspan’s (legendary criminal defence lawyer) entitled the The Scales of Justice. When I teach Pappajohn, I bring in the script as published in the book series for the class to get a sense of the real-life drama surrounding the decision. Too often when we look at cases we forget the facts are not just a written narrative or story but are based in real life events. 

Although, Justice Dickson wrote for the dissent in Pappajohn, his framing of the defence of mistake of fact was adopted by the majority decision, authored by Justice McIntyre. It was Justice Dickson, who clarified the defence in Canada as an honest belief that need not be reasonably held as opposed to the English authority in Tolson (see pages 150 to 154 of Justice Dickson’s dissent in Pappajohn), which suggested the belief must be an honest and reasonable one. Later case law on the issue, particularly Chief Justice Lamer in Davis, emphasizes the need for the belief to be honestly or sincerely held, for the defence to cross the air of reality threshold. Reasonableness is not required but is a factor in determining the honesty of that belief. It is, in other words, part of the credibility assessment of the belief but not a controlling pre-requisite. In Groia, Justice Moldaver relies on this crucial distinction between an honest belief sincerely held and an honest and reasonable belief as a defining basis for finding Groia’s conduct as not deserving sanction (see para 92).

But that is not the only basis for this finding. The subtler reliance on criminal law principle comes as Justice Moldaver speaks of another aspect of Groia’s conduct; whether he was acting in good faith. Contrary to the dissent's interpretation of the majority’s position on this, Justice Moldaver suggests he is not conflating reasonableness with good faith. Indeed, he maintains these concepts act separate and apart. Here, Justice Moldaver relies on criminal law Charter language as he defines the concept of good faith in the same terms as the s.24(2)Grant analysis. Section 24(2) is a remedial section, triggered once the court finds a violation of a Charterright. It is a criminal law remedy as evidence can be excluded under this section on the basis of a breach that brings the administration of justice into disrepute.Grant is a sophisticated analysis that heavily relies upon societal norms and aspirations. It is a remedy that engages long-term goals of society and is firmly situated in the kind of society we want to live in as well as the kind of behaviours we will or will not tolerate as a society. It is firmly fixed in the public confidence in our justice system. Section 24(2) plays an educative role, a disciplinary role and an aspirational one. It is retrospective, in the sense it must revisit the past actions of the authorities in breaching the Charter, but it is prospective in its relief. Admittedly, after doing a couple of presentations on s. 24(2), I am attracted to the Grant analysis as I find the test to be an elegant and inspirational one. 

But back to Groia and Justice Moldaver’s pulling into the mix conceptual images from s. 24(2) in the shape of good faith. Part of the s. 24(2) analysis requires the court to assess the seriousness of the breach, in other words the seriousness of the Charter infringing conduct. In Groia-terms this can be equated to the seriousness of the alleged professional misconduct. Justice Moldaver in paragraph 93 enters into an ersatz s. 24(2) analysis as he describes good faith on a sliding scale “The more egregious the legal mistake, the less likely it will have been sincerely held, making it less likely the allegation will have been made in good faith.” This is exactly what is done in a s. 24(2) analysis. There, the court situates the police conduct on a “scale of culpability” with “inadvertent or minor violations” at one end and “wilful or reckless disregard of Charter  rights” at the other (see R v Paterson, 2017, SCCat para 43). All of this is, of course, reviewed in light of all of the circumstances of the case – in other words a contextual analysis.

Interestingly, this 24(2) like analysis intersects with the honest but mistaken legal mistake analysis undertaken by Justice Moldaver. As part of the s. 24(2) good faith assessment, the court considers whether the police were relying on an erroneous view of the law at the time of the events. This view of the law may be correct at the time but later changed through case law or it may be erroneously held through a mistaken understanding of the law (R v Vu2013, SCC para 69 & R v Duarte, 1990, SCC, para 60). However, there is an obligation on the police to be up to date on the law. They cannot rest on wilful blindness. A noted difference in the analysis is the requirement in Paterson at paragraph 44 of the majority reasons of Justice Brown that the good faith errors be reasonable. Negligence, in accordance with this standard, is not good faith and neither are unreasonable errors based on ignorance (see R v Buhay, 2003, SCC at para 59). As an aside, Justice Moldaver dissented in Paterson. In any event, this discussion must be kept in context – what Justice Moldaver is discussing is civility not competency. The line must be clearly drawn to ensure the integrity of our adversarial system and the buttressing concept of resolute advocacy.

It should finally be mentioned that at no point does Justice Moldaver reference s. 24(2) or the pertinent case law. In a contextual analysis such as this one, anything goes. Which leads me to the last point in this brief blog that obviously the Groia decision continues the Supreme Court’s predilection to contextualize. This modern approach to everything 'where context is everything' first appears in statutory interpretation principles (see Rizzo Shoes, 1990, SCC at paras 21 and 22) but has outgrown the written law to be a favoured solution to all problems. The contextual approach opens the rule of law door, which so often in the more rigid application of law is closed. Whether this open-door policy is a good one, I leave for another day but needless to say, the Supreme Court is certainly consistent. In the end, by using criminal law principles and Charter aspirations in areas not traditionally considered true criminal law, the idea of 'context is everything' is getting a large and liberal interpretation. In a very real sense, criminal law rules!

DISPENSING SPEEDY JUSTICE: THE SUPREME COURT OF CANADA & DECISIONS FROM THE BENCH

Recently, I was asked to comment on the recent Supreme Court of Canada decision on R v Stephan2018 SCC 21. The decision, given from the Bench immediately after the argument of the appeal, took many media outlets by surprise. The media, and to a large extent, lawyers, are not accustomed to speedy decision-making from the Supreme Court. We collectively expect the Court to reserve judgment and then, after months of diligent research and writing, the Court issues an unassuming missive that the judgment will be rendered on X date at Y time. I have often waited at my computer close to the appointed hour in order to immerse myself in the expectation of a new judgment release. For instance, I eagerly awaited the release of R v Marakah[2017] 2 SCR 608 and R v Jones[2017] 2 SCR 696, at 9:45 a.m. ESTto be first in line to the lines of decision-making, which would, we all hoped, reveal the answers to the perplexing issues raised by the s. 8 issues surrounding the seizure of text messages found on a 3rdparty’s smart phone. True, the Supreme Court could disappoint as reality often does not live up to expectations. But at least we had 200 paragraphs on which to mull over how we should have or ought to have known better. So, when the Stephandecision was rendered so quickly, I began to wonder if this was a trend on the part of the Supremes or whether it was merely my own biases coming into play. I was determined, therefore, to see if in fact the Supreme Court is rendering from the Bench more often than in the past and if so, why.

First, I need to reveal my bias. This bias is based on a self-made presumption on the differing roles of a trial court and an appellate court and on the hierarchal stature of those courts as ingrained into me through law school and legal practice. The baggage I come with is this: that trial courts are a messy affair where the hubbub of provincial court requires speed over judicial consideration in contrast with the quiet decorum of the sparsely populated appellate courts filled with robes and lacking in lay observers. This perception of justice is overlaid with a leap in logic that in retrospect may be an improper inference: that the noisy and boisterous trial court, which dispenses speedy justice is not engaging the law writ big but is merely applying the law given to it by the bigwigs. This kind of decision making doesn’t take long does it? The idea of a reserve in the trial courts is not as welcome as in the appellate arena as it spells unconscionable delay for a client with the charge hanging over her head or, even worse, it has some ominous meaning which cannot possibly result in a good outcome. But, the appellate courts, struggling with the law, now they should take their time to render a true and just decision. We want them to read, contemplate, to hear and consider and then to write so we can all take it in. Of course, we have the hybrid superior court where the pace is less frenetic and more scholarly – we will except somedelay there but only for trial matters, applications and such must be dealt with summarily.

As outlined, this bias may result in the impermissible inference that what happens in provincial court doesn’t matter but what happens in the hallowed halls of the Supreme Court must matter because, well, they take so long. Or do they? After the release of Stephan,I was determined to find out. 

I started with an analysis of 2018 from January 1 to May 21. There are 12 criminal law judgments rendered by the Supreme Court with 8 of those decisions given from the Bench, orally, immediately after the hearing of the appeal. Out of those 8 oral decisions, 3 of the appeals (R v GTD,2018 SCC 7R v Black2018 SCC 10,  R v Stephan2018 SCC 21) are allowed resulting in new trials. Two of 3 appeals allowed are from the Court of Appeal of Alberta. 

A Bench decision, does not mean unanimity; 3 of the 8 decisions have dissenting positions from one member of the panel (R v GTD,2018 SCC 7with Chief Justice dissenting, RA v Her MajestyThe Queen2018 SCC 13with Justice Gascon dissenting, R v Cain2018 SCC 20with Justice Côtédissenting). Seven of the 8 Bench decisions, are from appeals as of right, as appeals, not requiring leave, on a question of law arising from a dissent in the lower appellate court.  Only 1 decision R v Seipp2018 SCC 1, was a dismissal after receiving leave to appeal. On the civil side, there are 10 judgments released thus far this year with only 1 judgment dismissing the appeal from the Bench but with a dissenting decision (International Brotherhood of Electrical Workers (IBEW) Local 773 v. Lawrence2018 SCC 11). Of note, 1 of the judgments released with reasons, R v Magoon2018 SCC14, was an appeal heard and dismissed, with the co-accused’s appeal R v Jordan2017 CanLII 80438on November 27, 2017, but with an indication by the Court that reasons would follow.

As an aside, of the 4 criminal appeals with written reasons, 2 cases are from the Court of Appeal of Alberta. In R v Canadian Broadcasting Corp., theCourt considered whether the CBC must delete publicly accessible information on a case for which a publication ban was issued after the publishing of that information. The Supreme Court allowed the appeal, unanimously reversing the majority decision of the Court of Appeal and upheld the decision of the chambers judge who dismissed an application for a mandatory interlocutory injunction to order the deletion of the information. The other written decision, is the previously mentioned R v Magoon, which was dismissed unanimously. Of the 12 decisions rendered on criminal cases this year, half of those are from the Court of Appeal of Alberta. 

What does all of this mean? At first blush, there appears to generally be a large number of appeals going to the Supreme Court from Alberta. The reason for this is due to s. 691, which gives an offender the right to appeal to the Supreme Court on a question of law where a judge of the court of appeal dissents. Four of the 8 oral judgments are from Alberta as appeals as of right under s. 691(1)(a) based on a dissenting decision on a question of law. The other 3 as of right appeals with an oral decision are from the Ontario (with 2 cases) and Nova Scotia appellate courts. What we can infer from this that there are a large number of dissenting decisions, on a question of law, from the Court of Appeal of Alberta. This can then lead to an inference that this higher number of dissenting decisions in Alberta are leading to a larger criminal case load in the Supreme Court. As the majority of the appeals are as of right and are not heard on the basis of leave involving issues of national importance or due to conflicting decisions from province to province, they do not engage the deep analysis needed from the Supreme Court as the final court of appeal. 

This propensity to deal with the higher caseload by rendering immediate decisions from the Bench, may also however be directly connected to a new cultural shift in the post-Jordanera. The Supreme Court must administer their court, as they admonished the lower courts to do, efficiently and effectively. Timeliness is a key feature of the s. 11(b)unreasonable delay decisions of R v Jordan, [2016] 1 SCR 631and R v Cody[2017] 1 SCR 659and that timeliness depends upon the administration of justice and court management. In many ways, the Supreme Court by setting an example of a hard-working court who reviews written material in advance, who is able to retire after hearing argument to make a final determination on legal issues, is signalling to the lower courts, including the appellate courts, that efficiencies can be found. 

In an effort, therefore to dispose of the volume of appeals, heard as of right, in a timely manner, the Supreme Court is dispensing their decisions on these cases more readily from the Bench. In so doing, they are essentially choosing “sides” by indicating whether they substantially agree with the majority or the dissent. They are, however, not only leaning on the lower court decisions in these oral judgments, but are often adding brief oral reasons, highlighting the basis for their decisions. For instance, in the most recent decision of R v Stephan, the Court agreed with the dissent of Justice O’Ferrall but briefly particularized the basis of that agreement. More substantial oral reasons were given in R v GTD,2018 SCC 7, again from Alberta, but on the issue of a breach of the Appellant’s right to counsel under s. 10(b) of the Charterand whether the violation should result in the exclusion of the statement under s. 24(2). Here, the majority of the Supreme Court allowed the appeal against conviction and reversed the majority decision of the Court of Appeal of Alberta This was a significant decision as it found a right to counsel violation when the police officer fails to “hold off” in questioning the accused where the accused indicates a desire to exercise their right to speak to a lawyer. The statement in that case was given after the Appellant was read his right to counsel with an indication he wanted to exercise that right, but the officer immediately proceeded to ask if he had anything to say, a usual question asked at the end of the standard caution. This “standard” practice was not only a violation but one in which the Court found was serious enough to require the statement given to be excluded under s. 24(2). Although a brief oral judgment, this was an important one. 

However, this rush to judgment may not always be satisfactory. Although, R v GTDoral decision is clear enough, the oral reasons in the Stephancase seem to leave us wanting more. In that case, the Appellants were convicted by a jury of a failure to provide the necessaries of life to their young child under s. 215 of the Criminal Code. The majority of the Court of Appeal for Alberta found no error in the instructions to the jury, relying on the familiar case law tropes which urge appellate courts to view the so-called error in the context of the whole charge to the jury, to not be blinded by formulaic instructions but to look at content over form and to keep in mind that a jury charge need not be error free or “perfect” (paras 43 to 44, 86 to 87 & 105, 108 & 135). 

In contrast, the dissenting Justice O’Ferrall found much wrong and little right in the instructions to the jury. At paragraph 212, he calls the instructions on the essential elements of the offence “confusing, misleading, and deficient.” The charge was so “problematic” (para 212) that it gave the jury ‘little choice but to convict” (para 214). Specifically, Justice O’Ferrall commented on the failure of the trial judge to explain what would constitute a “failure” to provide the necessaries of life and whether that so-found “failure” would amount to an endangerment of the child’s life (paras 226 to 243). These concepts were key to proving the actus reus elements of the offence and needed clear and separate attention rather than the collapsed discussion of those elements offered to the jury. He also identified an error in the trial judge’s lack of explanation of the mens rearequirement of the offence, which required proof that the Appellants conduct was a marked departure from the standard of a reasonably prudent parent (paras 244 to 272). The trial judge failed to not only explain the meaning of the term but also failed to connect to that term the relevant trial evidence on the issue. 

The Supreme Court agreed with the dissent of Justice O’Ferrall by stating from the Bench in a decision given by Justice Moldaver, known as the ‘criminal law judge’ on the Court, that

In particular, we agree that the learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it.

Considering the issues raised by Justice O’Ferrall, this case would have benefited from a written decision on what the legal meaning of “failure” is in the context of s. 215 specifically but also generally in the context of offences that require an omission to act rather than a commission. Additionally, an analysis of the meaning of the term “marked departure” would further clarify an area of law, namely objective mens reaoffences, which calls out for clarity. Although the Supreme Court in R v Beatty, [2008] 1 SCR 49, went a long way in ending a decades long argument in the Supreme Court on what form of liability criminal negligence is (objective) and that no personal characteristics are imported to the reasonable person construct, it did not provide a meaningful description of what a marked departure, in reality, would be. The best Madam Justice Charron, speaking for the majority, could do was to articulate what “marked departure” was not. It is not a form of civil negligence. It is blameworthyconduct that amounts to penal negligence (para 6). That may help but whether that would in reality help a jury decide is another matter. 

In fact, I often explain “marked departure” in class spatially, showing the difference between being off the standard civilly and being off the standard markedly as a difference in space between my outstretched hands. That usually garners a giggle or two in the class, but there are more than giggles when I then demonstrate the “marked and substantial departure” standard for s. 219 offences. The laughter is often short-lived when the students struggle to articulate the differing standards on an exam. Even with an application of facts to the standard, which should assist in the discussion, the students feel a sense of vertigo when trying to apply the law to the facts. The Stephancase would have been a perfect opportunity for the Court to set things right and give those who must apply the law a meaningful standard on which to base their decisions. 

This brief foray into the 2018 bench decisions has revealed some interesting possibilities as to why lately there just seems to be so many oral decisions rendered from the Supreme Court bench. Those reasons may be procedural (appeals as of right), may be jurisdictional (large number of dissenting decisions from the Court of Appeal of Alberta), may be a push to become aligned with the post-Jordanera or may be a combination of all three. Certainly, there is a need to go further in this analysis to determine what 2017 looked like and whether this is the ‘new look’ of this new court now lead by a new Chief Justice. There is also a need to determine if this change did indeed happen after the release of Jordanor whether this a hiccup due to dissension in the Alberta appellate court. Whatever the true reason is, there will still be a need for the Supreme Court to act as the final arbiter of the law to give clarity in those areas where we need direction and to not just speak the words of justice but to dictate them as well.

 

Leaving A Paper Trail: A Comment on Bill C-75 (also posted on www.ablawg.ca)

Receiving the newest Bill tabled in the House on proposed changes to the criminal justice system brings to mind the image of opening gifts at a birthday party. Each gift is scrupulously wrapped in an array of cheerful paper with shiny ribbons. As each bundle is displayed, there is a jostling amongst the party goers – each eager to see the gift unwrapped to reveal the prize inside. The image goes only so far when it comes to the government’s proposed amendments to the Criminal Codetabled last week under the auspices of Bill C-75. Underneath the wrapping, over 300 pages of paper, is no prize but a maze of amendments and changes – a patchwork of pieces – some of which significantly change the criminal justice system. Although some of these amendments are welcome, others signal a significant shift in our criminal justice system. Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. Unfortunately, this omnibus Bill in many respects fails to be visionary. Rather, short-term administrative efficiency seems to be the prize under the mountain of paper.

To be sure, there are changes we can all agree upon such as the repealing of some decidedly dead offences disabled by the application of the Charter. The best Albertan example of the danger in leaving things unchanged that have been changed is found in the original decision of R v Vader,2016 ABQB 505 (CanLII). In that decision, s 230, unconstitutional since 1987 as a result of the seminal decision of Justice Lamer, as he then was, in R v Vaillancourt, [1987] 2 SCR 636, 1987 CanLII 2 (SCC), was resurrected to convict the accused of murder. That error was easily and quickly undone as, in Pandora Box fashion, the lid was slammed shut with the s 230 conviction adroitly converted into the constitutional manslaughter conviction (see R v Vader2016 ABQB 625 (CanLII)). Bill C-75 explicitly repeals s 230, and that is a good change.

In C-75, there are also some expected changes, such as the abolishment of peremptory challenges to jury members under s 634 to be replaced by the more meaningful challenge for cause procedure. Although these changes are for good public policy reasons (see my earlier post on the Stanley / Boushie case here), such changes, which turn an automatic process into a discretionary one, still require thoughtful and mindful decisions by all those involved, counsel included. Changes can provide better and more equitable outcomes, but changes do not, in and of themselves, guarantee there will be change, they only make change possible. 

There are also some unexpected changes or at least changes some of us feared but doubted would occur. For further comment on the efficacy, purpose and reason for retaining, in some form, the preliminary inquiry, see my previous post on the issue as part of a case commentary written in April of 2015, “Does the StinertDecision Signal the End of the Preliminary Inquiry?”. The abolishment of the preliminary inquiry, except for the most serious offences, is one change we feared for years and are still probably in a state of denial about as our fears have become a reality. I suppose we should be relieved that the process was not entirely eradicated but perhaps that was the plan; to lull us with a sense of false security. 

Another, smaller change, yet completely unexpected and unwanted is an important evidentiary change under the soon to be added s 657.01, permitting the admission of the “routine” evidence of a police officer at trial in affidavit format, without the hearing of that evidence. This evidence is not given in real time. It is not even given orally. It is proffered as affidavit evidence. In other words, it is tendered on paper. This effects a precarious step, a paper-thin one, toward the potential future of trials by paper in the criminal court. 

As mentioned earlier, part of the difficulty with this government’s approach to Criminal Coderevision is the lack of long-term strategic vision. Reading these amendments, there is a sense that some of these changes were made without thinking them through to their ultimate end and without mentally testing them in a real trial scenario to determine how they will ultimately play out in court. For these changes to be meaningful and workable, yet still upholding the principles of fundamental justice, we rely on our government, before they change the law, to ask themselves why they are in fact changing it. We want the government to think before acting and ask whether the contemplated change is for the better.  Finally, we rely on the government to make these changes in an effort to enhance the criminal justice system while preserving the protections of those whose liberty is at risk. I emphasize to enhance, not to make the system more efficient. Efficiency cannot be and has never been the only reason for reform. Efficiency is not what we want from our justice system. That is not what the Jordan (2016 SCC 27) and Cody(2017 SCC 31) decisions are all about. Cultural change involves a bundle of values not a bundle of paper being efficiently pushed about.

As is typical with omnibus Bills, instead of stopping at what needs to be done, the government went above and beyond by also adding under the proposed s 644(3), an ability to convert a jury trial in mid-trial into a trial by judge alone, in the event the number of jurors fall below the number required to continue the trial. Although this can only be done by consent of both parties and therefore appears innocuous and not worth commenting on, my question is – why? A decision to have a jury trial is an accused’s Charterprotected right. Why would the loss of that right as a result of the inability of the jury to continue logically mean that the accused is good to go without one? Why incentivize a change which should not occur for that reason? Why not, instead, permit a jury trial to continue with less jurors than presently permitted? It seems that this change as with the admission of routine police evidence, sworn but not tested through viva voceevidence, is for one reason only – expediency. 

I harken back to Justice Lamer’s comments on the role of expediency in criminal law in Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC)(at para 85). This decision is an early Chartercase on the unconstitutionality of an absolute liability regulatory offence where there is a potential loss of liberty through a term of imprisonment or probation. An absolute liability offence requires no proof of a mental element and is therefore, where there is a potential loss of liberty, contrary to the principle of fundamental justice, “from time immemorial”, that an innocent person not be punished (para 85). Justice Lamer recognized that administrative efficiency is the driving force behind such regulatory offences, as the regulatory regime could be enforced quickly and efficiently through proof of the prohibited act only. To climb into the mind of the regulatory defendant, often a corporate one, would prove to be too difficult and contrary to the overarching objective of regulation, which is protection of the public from unsafe regulatory practices. However, where a criminal law sanction is used, Justice Lamer opined that only in exceptional circumstances, such as “natural disasters, the outbreak of war, epidemics,” would such administrative efficiency “successfully come to the rescue” of such a breach of s 7 (at para 85). Otherwise, life, liberty and security of the person should not be “sacrificed to administrative efficiency” (at para 85). These sage words written thirty-three years ago still have meaning. The principles underlying the Charterand indeed “from time immemorial” cannot be thrust aside in circumstances where the government has alternatives or simply, in a rush to please, has not given careful consideration to those changes. The justice system may be bending under its own weight, but the answer is not to shore it up with a quick and easy fix.

The admission of “routine police evidence” in paper format, as mentioned earlier in this post, serves as another prime example of the government giving all due consideration to administration without considering the rationale or “end game”. Presently, through our rules of evidence, we can make judicial or formal admissions at a criminal trial pursuant to s 655 of theCriminal Code. The section reads very broadly and confers a discretionary right on the defence to “admit any fact ... for the purpose of dispensing with proof”. Typically, such admissions are made in a written and signed agreed statement of fact or agreed admissions, depending on the nature of such admissions. They are often used to admit continuity of an exhibit which a police officer has seized in order to relieve the Crown and the officer from minute descriptive recitation of exactly where the exhibit was located at every point in time of the investigation. Such admissions can save court time and are efficient. They are to be used as indicated – to dispense with proof. This signals to all parties that if a fact is not admitted, the Crown must prove it. Easy and simple to use. Fair and efficient. Enter, the proposed s 657.01, permitting police evidence be admitted at trial in affidavit format. The first question to be asked is why? Why do we need such a paper heavy process when the accused already has the use of s 655?

Let’s go through a faux question and answer period to illuminate the point. The response to those “why” questions may be as follows: admissions under s 655 are formal and therefore binding and conclusive. The new proposed section permits admissions of fact informally, permitting the accused to lead evidence contrary to those affidavit facts, leaving the trier of fact to make the final determination of the issue. I see. Good point. However, so the response may be, if this form of evidence is to be treated like all evidence, in that it is subject to the assessment of the trier of fact, then what exactly is the point? Aha. Clever. But, the responder responds, the point is to relieve the police officer from attending court. A police officer’s attendance, if not required, costs the government time and money. Oho, is the response to that salvo. So, the reason for this is administrative efficiency. Not quite, is the response. An accused can also request an officer attend. Really? So, says the responder. So now the burden is on the accused to speak up and ask for an officer to attend court, to give evidence as is his or her duty, and to present themselves for cross-examination only upon request despite the principles engaged in full answer and defence. When once the status quowas the Crown shouldering the responsibility to present in court testable evidence as part of their obligation to prove guilt beyond a reasonable doubt, now the accused must request it. What was a given is now a discretion. Another point in time for the possible exercise of judicial discretion. Another addition to the now enhanced gatekeeper function of the trial judge. Another point in time where a self-represented accused might be overcome by an overly cumbersome process. Hmm. This seems awfully familiar. Isn’t this what happened to the preliminary inquiry? Once it was a default position to have one unless the accused waived it. Then, it became a request. Now, it will be virtually gone, but for exceptional penalty circumstances. But this is mere process – relax, is the final word from the government. The final response may be – look at what happened with expert evidence – complacency in its admission and a failure to test the evidence resulted in miscarriages of justice until courts were forced to recalibrate the focus. 

Finally, we have the Charter statements on these new amendments so crucial to the governmental approach. These statements, according to the government website on the issue, “are intended to provide legal information to the public” on “some of the key considerations that inform the review of a proposed bill for consistency with the Canadian Charter of Rights and Freedoms.” In this instance, the government provides justifications for the amendments, couched in Charter speak, relying on a broad range of rights, such as s 7 in its various forms, the s 11(b) right to a trial within a reasonable time, the s 11(d) presumption of innocence, and the right to equality under s 15. However, when viewing the admission of “routine police evidence,” for instance, this concern for the Charter feels ingenuine. Despite the government’s Charter statementsto the contrary, a sacrifice of one Charterright, such as limiting s. 7 full answer and defence, for another Charterright, such as using administrative expediency to temper s. 11(b) unreasonable trial delay, is not consistent with the spirit and vision of the Charter. Balancing may be needed but balancing requires a proper weighing of these rights in light of our case law. As Justice Iacobucci remarked in the majority decision in R v Oickle, [2000] 2 SCR 3, 2000 SCC 38 (CanLII), the Charterrepresents the “bare minimum below which our law must not fall” (at para 31). Indeed, “the Charter is not an exhaustive catalogue of rights” (para 31). From “time immemorial” we have assiduously protected due process rights as a reflection of our rule of law. Our government may want us to accept the bare minimum but we in Canada deserve more. We see the government’s attitude in those carefully crafted Charterstatements, which on the surface advance transparency but are so carefully polished, they reflect rather than reveal. Self-serving in nature, these statements publicly maintain the proposed changes are consistent with or advance Charter rights, but it is more by the saying that these changes do this than by the fact they truly do. In other words, by saying so, the changes become so. So, it is written, so it is or must be. Whether written in stone or merely on paper, those statements should not be the outward public face of these changes. Again, Canadians deserve better – we deserve to hear the rationales and the potential outcomes. Hear it, not find it in the trail of papers.

(with thanks to the ABlawg team for editing this piece)

Silence in the Court! The Art of Being an Advocate

In a few days, the law school will be a riot of noise as the 3Ls start the three-week intensive advocacy course. In those three-weeks the students will learn the fine art of advocacy by performing advocacy exercises for members of the bench and bar. They will receive real time feedback and start to develop their own unique advocacy voice. The development of an advocate is continual as we hone our style and abilities on a daily basis. It is through interaction with others we become advocates. This course is preparation for that life-long journey.

Advocacy is not just a matter of projecting one’s oral attributes but involves the ability to remain quiet at just the right moment. Appreciating when it is time to speak and when it is not, is as much a skill as cross-examination. Silence in advocacy comes in many forms. It involves the timing of pauses in that “killer” cross-examination as much as it involves waiting for your turn to speak during argument. How you carry yourself during those quieter moments is also a mark of good advocacy. Silence in the courtroom is, therefore, something to learn and to practice in order to be an effective and successful advocate.

An advocate should not feel pressured to cross examine or re-examine a witness in every case but silence can be a bar to raising an issue on appeal. An objection unmade is an objection lost. Sometimes silence is not golden but is perceived as acquiescence. It must be used like any other advocacy tool - at the right place and at the right time for maximum effect.

Silence is also equated with brevity. Good advocacy is also knowing when to stop speaking. An argument is not made stronger or more persuasive by repetition. Neither does it ring truer. Much of law school is geared toward teaching students to be succinct, to the point and brief, both in writing and in speech. In R v Royz, 2009 SCC 13, Justice Binnie, in an oral judgment, eloquently suggests that “brevity is the soul of a jury charge” where the key function is to “decant and simplify,” as recommended by Chief Justice Lamer in R v Jacquard1997 CanLII 374 (SCC). Lawyers should heed this advice as well, be they declaiming on a legal issue or urging a jury to acquit.

Listening, as a silent activity, is also an important part of advocacy. Students will come to realize that the next question is predicated on that active silence. Preparation is important but so is flexibility. Creating an examination of a witness is an exercise in adaptive listening. A good advocate must be open to different avenues of presentation should the matter require it. However, an advocate must be able to recognize when those avenues are there. Seeing is hearing. Hearing is listening. Listening requires silence.

In a few days, the din of the hallways will recede as the students close the doors of their classrooms and practice their art and their profession. I will walk those quiet hallways with a sincere wish that the students will find their professional voice in the presence, not the absence, of silence.

 

 

 

Episode 53: The Ideablawg podcast on s. 58 of the Criminal Code of Canada – The Good Citizen

In this episode, we are continuing our discussion of identity fraud and theft type offences. This particular offence involves documentation which confers status of citizenship on the subject holding the document. Section 58 involves the fraudulent use of such a certificate of citizenship or naturalization.

The section reads as follows:

58 (1) Every one who, while in or out of Canada,

(a) uses a certificate of citizenship or a certificate of naturalization for a fraudulent purpose, or

(b) being a person to whom a certificate of citizenship or a certificate of naturalization has been granted, knowingly parts with the possession of that certificate with intent that it should be used for a fraudulent purpose,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) In this section, certificate of citizenship and certificate of naturalization, respectively, mean a certificate of citizenship and a certificate of naturalization as defined by the Citizenship Act.

The section uses similar language to the previous section 57 in that it applies to all those committing the offence while in or outside of Canada thereby extending the reach of our sovereign authority beyond Canadian borders. Unlike section 57, a section 58 offence does not involve the making or forgery of the document but the giving up of possession or the use of a citizenship document for a fraudulent purpose. This prohibited conduct of use is not as egregious as the creation of a false document under s. 57 as is suggested by the maximum punishment for this offence of two years imprisonment. However, the s. 58 offence is certainly more serious than the offence of making a false statement in relation to a passport under section 57(2), as section 58 is a straight indictable offence while 57(2) is a dual offence.

The documents in question – certificate of citizenship and certificate of naturalization – are defined as per the Citizenship Act. That Act, also of federal origin, is a statute conferring the right of Canadian citizenship on those individuals who attain that status pursuant to s. 3 of the Act. Indeed, there are only three sections to the Act, with s. 3, the application section, containing 24 subsections. Section 3(1) is one of the few sections I have seen which are a drafters’ paradise with the generous use of clauses, sub-clauses, and paragraphs such as in s. 3(1)(f)(i)(A). Needless to say, it is not the clearest of drafting.

To return to the certificates in question in s. 58 of the Criminal Code, the definition of the certificates under s. 2 of the Citizenship Act is not of much assistance. In accordance with that section, “certificate of citizenship” means a certificate of citizenship issued or granted under the Act or the former Act and “certificate of naturalization” means a certificate of naturalization granted under any Act that was in force in Canada at any time before January 1, 1947. I assume that the authorities would simply know the document when they see one.

The offence, as mentioned previously, involves the use of those documents for a fraudulent purpose or knowingly “parts with possession” of the certificate with the intent it be used for a fraudulent purpose. The offence, through the use of the terms “fraudulent,” “purpose,” “knowingly,” “possession” and “intent,” requires proof of a high level of mens rea. One cannot commit this offence through recklessness.

The offence has been in the Criminal Code since 1938 being an offence, as with s. 57, responding to the vagaries of pre-World War II Europe and the waves of immigrants trying to find a safe haven through whatever means possible. As I discuss in the previous podcast on s. 57, the Canadian government’s stand on the immigration “problem” was itself a casualty of the war as persecuted people were refused entrance into the country.

According to a series of British Columbia Court of Appeal decisions interpreting the phrase “fraudulent purpose,” the term “imports dishonesty in accord with community standards” as per R v Gatley, 1992 CanLII 1088 (BC CA), R. v. Long (1990) 1990 CanLII 5405 (BC CA), 61 C.C.C. (3d) 156 (B.C.C.A.), and R v RND, 1994 CanLII 403 (BC CA).

The importance of the section having extra-territorial reach cannot be underestimated. In the 1966 Ontario Court of Appeal decision of Regina v. Stojadinovic; Regina v. Stanojevich, the accused persons, who were facilitating the illegal entry of another person into the United States with the use of a fraudulent certificate of citizenship were acquitted on appeal as the then section did not pertain to an accused committing the offence while outside of Canada. In that case, the two accused planned an illegal entry into the United States but the individual to be sent was otherwise legally in Canada. Mere preparation was not itself fraudulent use per the section requirements. This decision followed earlier cases, in particular the decision of R v Walkem (1908), 14 C.C.C. 122, in which Justice Clement of the British Columbia Supreme Court concluded that “what takes place abroad cannot, in the eye of our law, be an offence against our law (unless indeed made so by statute)." This sentiment follows an even older English decision by Lord Chief Justice de Grey in Rafael v Verelst (1776), 2 W. Bl. 1,055 at p. 1,058 where he states that "Crimes are in their nature local, and the jurisdiction of crimes is local." After the 1966 decision, the section was amended in 1968 to ensure that the offence applied to “every one who, while in or out of Canada.”

The phrase in s. 58(1)(b) “parts with possession” is only found in two other sections of the Code pertaining to property; theft under section 322(1)(c) and section 390 an offence relating to fraudulent receipts under Bank Act. This phrase has a property-related meaning. The phrase is in fact common in landlord and tenant disputes involving “parting with” premises under a lease agreement. This “parting” can occur through bankruptcy or assignment (See Bel-Boys Buildings Ltd. v. Clark, 1967 CanLII 533 (AB CA)) and is akin to sub-letting the premises. However, such parting does not grant the person a right to hand over the premises with tenure. By using this term in defining the offence under s. 58, the handing over of the certificate to another person need not be permanent but can be only for a limited period and yet still be subject to s. 58.

Outside of the Criminal Code, there are other measures the government can take when faced with the misuse of citizenship documents such as refusing the issuance of a passport pursuant to the Canadian Passport Order, SI/81-86 or revoking or canceling fraudulent certificates of citizenship. The use of the Criminal Code provisions are therefore not the only response to this type of conduct but is an expression of the state’s desire to control and protect the status of citizenship through the criminal law.

 

 

 

 

 

 

Keeping up with the Joneses in the Supreme Court of Canada: The Triumphal Return of the Presumption of Innocence

In addition to the criminal, evidence and advocacy courses I teach, I also teach 1Ls Legislation. Statutory interpretation looms large in that course. One of the analytical tools used in interpreting a statute, albeit in the context of the modern approach, is the concept of absurdity. If the plain reading of the statute would result in an absurdity, then the Courts will look for other interpretations consistent or harmonious with the context and scheme of the Act. Absurdity is a powerful interpretative tool and fits nicely in the legal trope: Law is reasoned and reasonable. It is also logical and helpful. Law is not absurd. This concept of absurdity transcends statutory interpretation and is an overarching principle of law generally. The proper response to Dickens’s Mrs. Bumble should therefore be: the law is not “a ass.” With the recent release of R v Jones, the Court clears up a true absurdity or as Justice Côté for the majority puts it, a “catch-22” situation, relating to whether Jones has standing to argue the Charter issue. Better yet, the Supreme Court clears up this concerning conundrum with the powerful and triumphal use of the presumption of innocence. This summarizes in a nutshell why the recent Supreme Court decision in Jones is a welcome addition to s. 8 case law.

The decision does not have the powerful punch found in the companion decision of Marakah, but it has “legs.” What is this “major major” issue? Put simply, according to previous case law (R v Edwards, 1996 SCC), in order to engage a justiciable Charter issue, the accused must establish a reasonable expectation of privacy (REP) in relation to the thing seized. It must be remembered that s. 8 protects people not places or things. The purpose of the right to be secure from unreasonable search and seizure is to maintain an acceptable societal balance between an individual’s right to be free from state intrusion and the state’s need to intrude into an individual’s private life to maintain public safety and law enforcement. This “push-me pull-you” sense of balance is constantly being recalibrated by the courts in an effort to protect core democratic values underlying the Charter. This recalibration cannot be done in a vacuum but within the context of what currently matters to us as a society. In our courts, context is everything: from the meta-analysis of statutes as found in the modern approach to statutory interpretation to the specific flexibly-applied factors in the REP analysis. In order to argue REP, the accused must be literally or metaphorically standing in ground zero or in the circle of impact. If outside this Charter imbued impact zone, the accused cannot be aggrieved and cannot argue for exclusion of the evidence under s. 24(2).

Typically, it is not difficult to draw a circle of impact around the accused, particularly if the search or seizure are items personally connected to the accused. What does raise standing difficulties is where identity or ownership is in issue. Here’s the rub: once you admit you have standing, as in “you are the person sending the text messages about trafficking in firearms,” you cannot ethically suggest at trial “you are not the person sending the text messages about trafficking in firearms.” This Schrödinger’s cat-like conundrum requires counsel to make tactical decisions which may chip away at an accused’s right to make full answer and defence. The accused by taking the “not me” position is in essence giving up the right to argue a Charter violation. The Jones decision thankfully challenges that presumption and fixes it.

First, let’s start our analysis with the Edwards decision. In that decision, the majority, authored by Justice Cory, were less than impressed with the accused’s position on appeal, which was markedly different than at trial on the issue of ownership. The accused at trial testified that the drugs found in a third-party’s apartment were not his drugs. That position was maintained in the appellate court. It was only in the Supreme Court of Canada that the accused changed a “fundamentally important aspect of the evidence” in admitting that the drugs were indeed his property. This could not be countenanced as by changing the position the Appellant was relying on a different aspect of the REP, namely privacy in the drugs as opposed to REP in the apartment where the drugs were located.

In Jones, the situation was different. The accused did not lead any evidence he was the author and sender of the message. Instead, the defence relied on the Crown’s “theory” that the accused was the author and sender. The application judge found the accused could not rely on speculative “evidence” and therefore he had no standing to raise the s. 8 issue. But, as mentioned, how else could the defence advance a pressing Charter argument without compromising the defence? A legitimate goal of a trial is to put the Crown to the test of its case and to require the Crown prove all essential elements of the offence beyond a reasonable doubt. One of those elements is identity of the owner of the illegal item. If identity is in issue, the defence cannot “have its cake and eat it too” by arguing in the alternative. Once an admission is made on an essential element such as identity of the owner, it is an admission of fact that cannot be admitted for limited purposes only. Law, ethics and the Charter prohibit such a paradoxical stance.

Justice Côté recognizes the unfairness inherent in the standing paradox and soundly rejects the absurdity of the outcome. At paragraph 19 she approves of the defence’s reliance on the Crown’s theory as a foundation for the Charter argument and leans on a purposive, normative approach to the paradox. This approach involves two strands invoking the low hurdle required to overcome the subjective component of the REP analysis and invoking the Charter itself.

First, some background on the REP factors, which are situated in and viewed through the factual circumstances of the case. The factors are a tailored-made, come-as-you-are assessment. Yet, it is an assessment that must be nestled in the social fabric. In a previous blog posting (also a podcast!) on s. 6 of the Criminal Code – the codification of the presumption of innocence – I alluded to the golden thread metaphor of that presumption. That concept of the golden thread, arising from Lord Sankey’s decision in the Woolmington case, maintains the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt by conceptually weaving the presumption of innocence into our social fabric. Similarly, Justice Côté’s solution to the standing paradox connects back in web-like fashion to the presumption of innocence. It does so through an acknowledgment of the generous interpretation of the REP factors as normative ones and through the protective nature of the Charter right against self-incrimination under s. 13.

The nexus point for these justifications to permit an accused to have section 8 standing even where they deny connection to the offence is that golden thread of innocence. It is nice to see its triumphal return as a recognition of the normative values we hold. It is also an essential reminder that at the heart of the REP analysis is the preservation of those societal values. In many ways, section 8 principles and the section 8 analysis of those principles serve as a perfect view into the justice system with the golden thread as the ultimate symbol of why the right of the state to intrude into our lives must be tempered by the right of an individual to be free from such intrusion.

 

Confidential Informant: A Creation Story

We are all conversant with a creation story, be it biblical or cultural. We are less apt, however, to recite a purely legal creation story, where the law is not in itself created but creates. In the decision of Her Majesty The Queen v Named Person A, 2017 ABQB 552, Madam Justice Antonio applies the law and in doing so creates a legally constructed status, as confidential informant, for Named Person A [NPA]. The effect of the law or the privilege that arises, requires NPA’s identity be strictly protected and non-disclosable, subject to the “innocence at stake” exception. This is a status which NPA neither wants nor asks for. Once NPA became this pronounced creation of law, NPA became nameless. The discussion we will undertake will provide us with the ultimate creation story of how certain encounters can transform into a creation of law. With that transformation, comes the full force of the law as legal principles must be and are rigidly applied. The preliminary issue of whether NPA was, in law, a confidential informant is incredibly important. If NPA is not such an informant then the issues flowing from this status are moot. If, however, NPA is a confidential informant, then the court must decide how the Crown can fulfill its Stinchcombe obligations requiring full disclosure of NPA’s criminal file to NPA’s counsel without violating the sacrosanct confidential informant privilege. To disclose or even to edit the disclosure would reveal NPA’s identity. To not disclose would run afoul of NPA’s right to full answer and defence. Alternatively, if NPA’s defence counsel is within NPA’s confidential “circle of privilege,” then disclosure may be made within the safety of that legal privilege. This posting considers the initial decision by Justice Antonio to find, in law, NPA is a confidential informant. It is this finding which engages the law and which matters most to NPA.

First, we will start with a narrative, which is not particularly exceptional. NPA was arrested on various criminal charges. Subsequently, NPA was approached by police officers from the “human sources” unit, who handle police informants, also known as “handlers.” These handlers had been following NPA’s investigation and believed NPA could provide them with useful information to assist the police in other investigations. To induce NPA to be an informant, the handlers offered NPA the usual terms: the handlers “promised” to keep A’s status confidential; NPA, as a “volunteer,” could stop providing information at any time; and NPA was “prohibited” from disclosing the status. On this basis, according to one of the handlers, NPA agreed to be an confidential informant. Notably, there were no promises relating to his outstanding charges (paras 16 to 19).

NPA saw the “relationship” differently. NPA “never wanted” (para 27) to become a confidential informer, although NPA did give the handlers information. In other words, NPA agreed to the “informant” part but not the “confidential” moniker. Consistent with this perception, NPA immediately breached the “terms of the contract” (para 25) by “self-outing” as an informant. NPA told people of his encounter with the handlers. NPA told the police officers investigating his criminal charges and NPA told NPA’s defence lawyer. Justice Antonio does not speculate on why NPA did this, other than to confirm that NPA did not reveal the status as a ploy to force the hand of the Crown in staying the charges (para 79). We, however, can speculate that NPA might have revealed the status thinking there would be some sort of benefit from co-operating with the authorities. For instance, an agreement to plead to reduced charges for a reduced sentence. As insightfully suggested by Justice Antonio, “the police must take [NPA] as they found [NPA], existing charges and all” (para 79).

As a result of the disclosure by NPA, NPA was promptly “terminated” (para 21) as a confidential informant. This “termination” did not affect NPA’s legal status as a confidential informant. Borrowing from the lyrics to Hotel California, NPA could check out any time, but could never leave. Whether this sentiment was made clear to NPA is questionable (para 26). Despite this lack of clarity, Justice Antonio found NPA to be a confidential informant with all the “associated privileges and obligations” (para 25). I would add that those “privileges and obligations” flowed from a legal construction or legally imposed view of NPA’s brief interaction with the handlers. Moreover, once that legal principle was engaged, it was required to be applied in a “nearly absolute” manner (para 37). A few minutes in an interview room, gave NPA status close to an “officer of the court” (para 41).  It is doubtful whether NPA viewed the conferred status as anything but an albatross around the proverbial neck. Something imposed as opposed to something welcomed. As succinctly stated by Justice Antonio, “the role of a confidential informant is a creation of law enforcement, and the privilege that attaches to it is a creation of the common law” (para 41). In this creation story, NPA has a minor role indeed.

Notably, NPA’s counsel did not provide much argument or authority for the position NPA was not a confidential informer (para 23). In concluding that NPA was indeed a confidential informant in fact and in law, Justice Antonio applied the “test” from R v Basi, [2009] 3 SCR 389, 2009 SCC 52 (CanLII). The issue in Basi differed from NPA’s situation. In Basi, the Court was struggling with how a confidential informant could have counsel on a hearing to determine informant privilege when such representation would include disclosing the confidential informant status contrary to that limited and rigidly enforced “circle of privilege” that necessarily includes the handlers and the prosecutor but no one else. Justice Fish, at paragraph 36 of Basi, explained that the status as confidential informant arises when “a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain.” The question of whether the person is a confidential informant is a legal one and the judge must be satisfied of that status on a balance of probabilities (Basi at paragraph 39).

Another decision, Justice Antonio referenced to assist in the “status” hearing was R v Barros, [2011] 3 SCR 368, 2011 SCC 51 (CanLII). In Barros, the issue centered on the scope of the confidential informant privilege and was not focussed on the initial finding of that privilege. As a prelude to that main finding, Justice Binnie, on behalf of the majority, reviewed the purpose of the privilege itself.  It is important to keep in mind, Justice Binnie’s sentiment at paragraph 31 that “of course, not everybody who provides information to the police thereby becomes a confidential informant. In a clear case, confidentiality is explicitly sought by the informer and agreed to by the police.” Justice Binnie then quotes the previously referred to “test” from Basi.

Although both Justice Binnie (para 32) and Justice Antonio (para 25) refer to the “contract-type elements of offer and acceptance” as evidence of the status, confidential informant privilege, as a creature of the law, “was created and is enforced as a matter of public interest rather than contract.” The public interest as outlined by Justice Binnie at paragraph 30, involves the incentives for those in the know to provide information to those who don’t to assist in the goals of public safety and law enforcement (See also Bisaillon v. Keable, [1983] 2 SCR 60, 1983 CanLII 26 (SCC), Beetz J. at page 93). By providing a safe “place” where these vital conversations can be done in the context of an atmosphere of protection is the underlying purpose for rigidly enforcing the privilege once it attaches. This public interest aspect assumes two premises: that the informant wants the protection and that the public interest has no interest in the impact such a status would have on the informant. The Basi “test” does not allow for a reluctant informant nor does it concern itself with the implications of the confidential informant status on an individual. The incentive is to promote law enforcement, which is a valid and convincing objective we all applaud. However, the “test” as fashioned does not encourage the police to fully inform the potential confidential informant of the true implications of the privileged status which will, not might, flow from the agreement. As noted by Justice Antonio at paragraph 26, when the handlers “ended Named Person A’s tenure as an informant, Officers X and Y used final-sounding language that might easily have led him to believe that every aspect of his short-lived role was over and he would never hear about this again.” But not so, Justice Antonio continues, “for obvious reasons, confidential informant privilege persists after the informant’s active role has ended.” Sadly, the forever status is known to the legal segment of society but not so obvious to people like NPA. These realities reveal a weakness in the Basi test as it fails to see beyond the protective veil which flows from the confirmation of the status as confidential informant. Rather, such status is derived from a moment in time when NPA speaks without appreciation of the repercussions which will come in the name of public interest.

To be fair, Justice Antonio is also concerned with NPA’s protection. Although NPA “never wanted to be a confidential informer” (para 27), NPA is “fearful of one person finding out,” namely the person he informed on. But this discussion in the decision comes after the confidential informant status is confirmed and forms part of the alternate issue on whether NPA waived his status. Waiver, presupposes status as a confidential informant.

Returning to the Basi test, it should be noted that the full test as articulated by Justice Fish requires the “useful information” to be given “would otherwise be difficult or impossible to obtain.” There is no discussion of this part of the test in Justice Antonio’s findings. Was this information “useful”? Was it “otherwise difficult or impossible to obtain”? The record is silent. Without inquiring into this aspect of the Basi test, confidential informant status can be conferred broadly by a handler who is “fishing” for information or testing out an informant’s reliability. It could be argued that without this requirement, status could be irrevocably conferred in a “offhanded way” (para 25). Leaving this phrase empty fails to serve the purpose of the informant privilege, which strives to not only encourage people to share information but also to encourage effective and efficient investigatory practices. Additionally, a more restrictive reading of the Basi test would encourage potential informants to give useful information in exchange for status. These informants, I would suggest, would be more prudent in entering into such an “agreement” and subsequently not so flippant or forthcoming with their confidential identity. It would also assist handlers in pre-screening potential informants, who may, as the Crown feared in the case at bar, “self-out” themselves purely for the purpose of forcing the Crown to withdraw any future criminal charges they may face (paras 73 to 81).

Confidential informant status has advantages and disadvantages as starkly seen in Her Majesty The Queen v Named Person A. The key to a robust and successful justice system is to provide protections and incentives for all those who play a role in it. The law of privilege once engaged is a hard-hearted companion as NPA ultimately became to appreciate. But, we, as purveyors of the law and as readers of this creation story should consider the effect of the law and how, within the confines of the Rule of Law, we can be part of that changing narrative. In this way, NPA’s personal story can inform further discussion on the future of the law of privilege in this area and whether, as with other traditional rules of evidence, it is time to re-consider the underlying logic of the rule in favour of a different, more responsive, approach. This creation story may indeed create another story about the law.

 

 

 

Seeing Justice Through the VR Lens

The first few 1L Criminal Law classes are dedicated to the “big picture” wherein we discuss the purpose of criminal law in the context of the criminal justice system. Unlike the other 1L doctrinal courses, criminal law is laden with context without which the doctrinal aspects would be meaningless. The context includes, but is not limited to the following: the roles and responsibilities of the Crown, defence and trial judge; respecting the trial narrative as real life situations impacting the lives of real people; trial strategy, professionalism and ethics; procedural “choices” and most importantly, the principles of fundamental justice, which permeates all of these concepts. I try to give them a sense of urgency – how vital all the pieces are to the healthy functioning of the system.

Although I like to use the puzzle piece metaphor to explain how each concept relates to one another and the incompleteness should one piece fail or be absent, in retrospect, that metaphor is too static. It fails to connect to the modern aspect, embedded as it is in technology and imagery. A conventional puzzle is too flat to express the multifarious dimensions of the justice system and the delicacy of the model we uphold. The more appropriate parallel is an interactive 3D environment that has presence, weight and texture. In such an environment, we can more fully appreciate the impact each micro-concept has on the macro-institution. This is the justice system as seen through virtual reality optics in which all the images meld together into a coherent and cohesive whole. This cohesiveness, I suggest, comes from those principles of fundamental justice as embodied in our Charter such as the presumption of innocence, fair trial, and the “specialness” of the criminal standard of proof. Of course, the Charter also supplies dissonance to the imagery as we struggle to overlay onto this reality other protected rights coming not just from the individual charged before the criminal law but also the individual who appears before it as witness. In this sense, the pursuit of justice in this VR lens takes on complex contours and new pathways.

Admittedly, this VR depiction seems a little too much for an explanation as to why the principles of fundamental justice matter in our criminal courts but visualization or depiction of the law is as important as articulation. In my working paper on “The W(D) Revolution”, I make a case for the case by showing why the essence of W(D) still matters and how it has revolutionized the way the courts view the presumption of innocence and burden of proof. I emphasize the need to strip down our trial discourse to the essentials - that assessment of the evidence must be done through the lens of those principles of fundamental justice which underline our core values as a society. We say we do this, however, the W(D) journey is also a cautionary tale, reminding us that espousing a formulaic mantra is meaningless without a true commitment to the content of W(D) and those principles the case enshrines. Without that commitment, we are not giving meaning to those values nor are we creating an image of the criminal justice system worth pursuing. We need to view the justice system through the lens of virtual reality and experience the texture of justice as we dispense it. This is why W(D) still matters and this is why teaching context is everything.