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.

 

 

 

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

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

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

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

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

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

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

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

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

Also posted on the Ablawg.ca website.

 

Part One of the Supreme Court of Canada’s Decisions In The Sniffer Dog Cases: Don’t Throw Out The Principle With The Bath Water!

Question: When is a legal principle clarified by unanimous court but when the principle must subsequently be applied, unanimity goes out the window? Answer: When the Supreme Court of Canada delivers a much anticipated and needed decision on an issue, which, depending on the outcome, may change the face of police investigatory practice. That is the case, of course, in the two sniffer dog decisions in Chehil and MacKenzie, which were supposed to clarify the standard of “reasonable suspicion.” However, instead of the much-needed direction from the Court, the Supreme Court of Canada leaves us with a ruling that fails to clarify. As we all know, legal principles do not live in a vacuum and if they cannot be applied consistently and with some prediction, then the principle becomes a tool of the law and not the rule of law.

Still, the cases do tell us something, about which I have consistently written: that a seemingly objective standard is a fallacy as it is applied through the subjective sensibilities of the assessor, the judge, and in the context of facts, which themselves are founded on a subjective view of the receiver. Chehil and MacKenzie are cases in point: Chehil sets out the principle, to which everyone on the Court agrees, while MacKenzie applies it through the judicial lens. Unfortunately, the judicial lens is of varying strengths and degrees: not everyone on the Court sees matters the same way. The decision is therefore a fractious one. If our Supreme Court of Canada cannot agree then how can the majority, written by Justice Moldaver as I predicted, find the trial judge, who heard the evidence, is wrong. Can one even be wrong when applying an objective reasonable person standard? Are there two reasonable people? Do we even know how a reasonable person thinks? Ah, there’s the rub and there is the tautology: objective standards are only as good as the facts behind them.

If the above seems like a rant, well I suppose it is: the decisions, when read together are puzzling. Moldaver’s MacKenzie decision is even more so when read against the trial judge’s reasons. Unfortunately, one cannot get beyond the admonition of the trial judge when he found it possible “that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.” This kind of after the fact decision-making seems to permeate the SCC decision too but understandably so as in fact there were drugs found and the accused was a drug courier. But what we must all keep in mind is the purpose of the Charter is not to exonerate criminals but to provide oversight when the awesome powers of the state are used,  in whatever circumstances. Just as innocent people may come under scrutiny in a criminal investigation, as pointed out by Madame Justice Karakatsanis in Chehil, so too seemingly guilty people will benefit from inappropriate state intrusion. This is what safeguards our fundamental principles in a free and democratic society.

It is in this context that we must review and analyze these cases. In part two of my case comment, I will do just that.

 

 

Is the Supreme Court of Canada "Kicking It Old School"?

When I practiced as appellate counsel in the Court of Appeal for Ontario, I came to know the differing approaches of the Justices of Appeal very well. Just prior to the hearing date, I would call the Registrar's office seeking the one piece of information which could make or break a favourable hearing: the panel list. Would there be a Justice on the panel familiar with and sympathetic to criminal law issues? Or would the panel be stacked with Justices more concerned with commercial liens and the division of property?

In truth, the best panel was not filled with Justices learned in the law but those hardened by the trial courts: those Justices who had spent the prime of their career sitting in the lower level courts presiding over murders, robberies, and drug conspiracies. Judges like Justice John Brooke, Justice Allan Goodman, and Justice Horace Krever were the best draw in a criminal appeal as they exercised their judgment and common sense in a manner made for a criminal appeal. True they were no stranger to case law, indeed, they made case law. But their legal acumen was enhanced by their uncanny ability to seize upon the heart of an issue and render a fair and equitable decision. For this panel, the law was known, and the advocate's challenge was to adroitly respond to the comments made by these wily and nimble judges, who could see the play of a trial in their mind's eye, like an intricate chess game, and thus appreciate the dynamics of the case before them.

In contrast, the Supreme Court of Canada seemed to be more lofty, requiring a sublime understanding of the case law. Only Chief Justice Lamer, as he then was, (and yes, I just dated myself) offered a refreshing glimpse of one who was, like Leo Bloom in Ulysses, a journeyman accustomed to the realities of the trial courts. 

This nostalgic foray was brought about by the recent decisions of the Supreme Court of Canada, some of which I have written about in prior postings here, here, and here, culminating in the last effort when the SCC released the jury vetting trilogy. The trilogy decision seemed effortless, straight forward, almost easy and uneventful. On the second reading, it dawned on me why this was so: the decision was based on a common sense and practical approach to criminal law. The decision was pure trial judge.

Essentially, the decision approves of background criminal record checks of jurors, where legislation permits, as long as the information is subsequently shared with the defence. By extension, should the police or the Crown come across other pertinent information relating to the potential juror through other investigative techniques, then that too can be used in choosing a jury, but again with the concomitant obligation to disclose the material.

However, this disclosure is not limitless in its aspect. Often experience and intuition are invaluable tools, producing invaluable information. Such irreplaceable information gleaned through years of practice, need not be shared and cannot be reproduced to form part of a disclosure package. How true. Common sense cannot be packaged and this decision, together with the other recent SCC decisions I blogged about show that common sense can make precedents. As an aside, these decisions were all written by Justice Moldaver, a recent SCC appointment from Ontario, who not only sat as a Trial judge but was also a defence lawyer. It seems as though the SCC is truly kicking it old school!

 

Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case

Presently, there are essentially two different kinds or categories of criminal intent: subjective and objective. Intent or mens rea is the fault requirement of a crime. Without intent or the intention to do the prohibited act, there is no crime and the accused should be acquitted. Traditionally, the criminal law recognized only one category of intent: subjective mens rea as the basis for a criminal offence. Subjective intent requires the prosecutor to prove beyond a reasonable doubt that this accused intended his actions. This requires the trier of fact to contemplate on the thought processes of the accused as presented through the evidence. Subjective intent differs greatly from objective intent, which sets up as a model of behaviour the standard of the “reasonable man.” Thus, the trier of fact when considering an objective mens rea offence must consider what a reasonable man would have done in the circumstances. If the accused fails to act in accordance with this standard or model of behaviour, the accused is deemed guilty of the offence, even if the accused did not intend the consequences of his actions.

Objective intent can be a harsh standard as it can be argued that those individuals who are not “average” or have some deficiencies of character cannot possibly reach the standard of a reasonable man. On the other hand, the criminal law’s main thrust is to protect the public. In harsh terms then, the criminal law punishes those who are unsafe to protect the majority of people who are fully aware of what is a reasonable course of action in the circumstances.

I stop to reflect on the term “reasonable man.” This traditionally was the term and equally traditionally this was the standard: a reasonable and sober man. Not a woman, but a man. Obviously when society accepted the equality of the sexes, this phrase was changes to “reasonable person.” Of course there is no description of a “reasonable person.” One cannot simply look up the phrase in a dictionary and find a full description or even a picture of such a venerated individual. No, triers of fact are left to their own devices in conjuring up such an individual, presumably because the trier of fact is assumed to be a reasonable person. In almost a tautological argument, the presumed reasonable person assumes a reasonable person for the purposes of determining the guilt or innocence of an accused person.

As a result, the objective standard of intent is not favoured by the defence and yet, unsurprisingly is favoured by the prosecutor. It is much easier to rely on a concept of reasonableness, than it is to determine a particular person’s intention. As the bar is lowered, convictions occur more readily in an objective mens rea crime. Typically, however such crimes were reserved to unsafe licensed behaviour such as careless use of a firearm or dangerous driving. A licensed activity requires a certain licensing standard and thus if you fall below that standard while involved in a dangerous activity, then objective mens rea should apply: common sense dictates it must. And that is where we come to the new Supreme Court of Canada case of R. v. Walle, 2012 SCC 41.

Adrian Walle was charged and convicted of second-degree murder, when he shot at point blank range with a sawed-off .22 calibre rifle, Jeffery Shuckburgh, a Calgary bar owner who at the time was escorting Walle off the premises. Walle’s trial counsel argued that the rifle went off due to an unintentional movement made by the accused. In other words, Walle’s actions were not voluntary as he acted without awareness of his actions, in other words the shooting was purely accidental. A prohibited act or the actus reus of a crime must be a voluntary act. Without a voluntary prohibited act, there is no crime. This argument had little basis in the evidence and the trial judge, sitting without a jury as occurs when a case is complicated or based on legal argument, made the following finding in convicting the accused:


I am satisfied, beyond a reasonable doubt, that when the accused Walle deliberately pulled the trigger, in the circumstances I have just described, he knew that the reasonable and probable consequence was that he would either cause Mr. Shuckburgh’s death or would cause him grievous bodily harm which would likely cause his death and was reckless, whether death ensued or not.


The trial judge also relied upon the “common sense inference,” which contemplates the reasonable person or that a “sane and sober person” intends the reasonable and probable consequences of his acts. On appeal, counsel for the defence argued that the trial judge was wrong to rely upon this “common sense inference” without recognizing that Adrian Walle was not only under the influence of alcohol at the time, but was also suffering from various psychiatric disorders including “Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder.”

 

The Supreme Court of Canada unanimously disposed of this appeal. In a judgment written by new appointment Mr. Justice Moldaver, who I have written on in previous posting, the court easily rejected this argument on the dual basis that this argument was not raised at the time of trial and that a trier of fact need not refer in the reasons to every piece of evidence proffered. As long as the decision appears to be based upon the relevant evidence, which it was in this case, the reasons are sound. The fact the issue was not raised at trial merely goes to trial tactics. Trial counsel views a case in a certain way and crafts a trial position as a result. Often, counsel will at trial pursue this theory solely and thus not raise very possible argument on the case as it would detract from the chosen position.

The secondary argument on appeal, raised by the intervenor’s in the case, the Criminal Lawyers’ Association of Ontario, cause the court more concern. The crux of that argument involved the propriety of using the “common sense inference” in circumstances where the accused is clearly not an individual who practices common sense due to his psychiatric issues. Such an inference essentially imports an objective mens rea standard into a crime which is considered one requiring subjective intent. To convict of murder, the prosecutor was obliged to prove beyond a reasonable doubt that Walle intended to kill or that he was reckless as to whether death would be a consequence of his actions. Murder is not based on what a reasonable person should have done at the time. However, manslaughter is an objective mens rea crime, which requires an accused to have an objective awareness that his actions will cause bodily harm. In murder, the accused must be subjectively aware that his actions will cause death.

Of course, in Walle’s case, the argument is a strong one. Certainly, Mr. Walle would definitely not be the poster-boy for a reasonable person nor would he be described as “sane and sober.” Despite this, Justice Moldaver rejected this argument but with a caveat. In his view, the “common sense inference” “provides a jury with a marker against which to measure the rather amorphous concept of intent.” The instruction also cautions the jury that such an inference may be made but is not required to be made in their deliberations on intent.

Leaving aside that the Walle case did not employ a jury, Justice Moldaver’s comments highlight the difficulty with the concept. To view the inference as “a marker against which to measure” in my mind clearly suggests the objective standard of mens rea is at work. Indeed, it is difficult not to view this inference as anything but applying an objective standard based upon the trier of facts conception of what a reasonable person would have done in the circumstances. Thus, the objective standard is not only alive and well in Canadian criminal law, it has crept into the very heart of criminal law precepts, which require those core crimes such as murder and theft, require subjective intention. This inevitably should leave us wondering if the categorizing of the intention required for a particular crime is history, in favour of what the Supreme Court of Canada likes to call the “principled approach” to legal decision-making.

In closing, I refer back to the finding of the trial judge mentioned earlier that “when the accused Walle deliberately pulled the trigger … he knew that the reasonable and probable consequence...” By the trial judge using that phrase “reasonable and probable,” he has blurred the lines between objective and subjective intention, ensuring that the concept of “reasonable person,” whoever that may be, is an integral part of the crime of murder.

The Supreme Court of Canada in a much earlier 1990 Charter case said, in the majority judgment written by Chief Justice Lamer, this about the importance of subjective mens rea in R. v. Martineau:


In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.


In the end, it is clear that there was ample evidence to uphold Walle’s conviction, but as they say, bad facts lead to bad laws. The question is whether this approach is a foreshadowing of what is to come in terms of the Court’s position on intention or whether it is merely a specific response to a particularly heinous crime.

 

Are You Listening to This? The Constitutionality of Interceptions of Private Communications In Exceptional Circumstances

Justice Moldaver and Justice Karakatsanis, writing for an unanimous court in the Tse case and their first decision as Justices of the Supreme Court of Canada, found s.184.4 of the Criminal Code, which governs investigatory interceptions of private communications in “exceptional” circumstances, lacking in the constitutionally required safeguards required for such interceptions. According to the Code, “exceptional” circumstances refers to the situation where a peace officer is facing an “urgent” situation whereby he or she is reasonably unable to follow the normal procedures outlined in the Code for such interceptions.

What would these normal procedures require? First, we must step back from the section and pause to consider the context. Section 184.4 is in Part VI (6) of the Criminal Code relating to “invasion of privacy,” or when a peace officer wants to investigate a criminal matter by using an investigative technique involving the surreptitious interception of private communications. In other, more colloquial terms, the police want to “spy” or “eavesdrop” on a targeted individual, whom the police believe on reasonable grounds to be committing or planning to commit a crime. As we know from television and movies, spying is a very high tech activity requiring the most cutting edge devices such as wiretaps accessed by loads of smart looking mechanical equipment found in plain white cube vans with cool looking techies wearing enormous noise-cancelling headphones. Also present is the ubiquitous computer laptop, as today’s savvy cop needs to use the best in order to combat the even technologically savvier criminal.

As great as these techniques look on the big screen, they do not translate well in the constitutional setting; a context, which takes individual rights seriously, and violations of such rights even more seriously. In our Charter, through sections 7 and 8, the state is required to respect the dignity, autonomy, and integrity of the individual as a defining element of individual freedom. However, with this state obligation, as Pierre Trudeau so eloquently stated “there's no place for the state in the bedrooms of the nation,” comes the competing need to protect society from harm through state-sponsored police investigation and protection. It is the judiciary’s role to determine the appropriate balance between these competing rights through a generous and flexible interpretation of the Charter.

As a result, the starting point in the Criminal Code for invasion of privacy is to create an offence where private communication is intercepted by any means. Private communications are any oral, telephone, or radio-based communication made in the context of a reasonable expectation of privacy. Thus, the originator of the communication intended the communication to be made to another person, with an expectation no one else other than the intended receiver would hear it. Any non-consensual interceptions to such private communication are therefore unlawful and contrary to section 184 of the Criminal Code.

There are two exceptions to the rule, wherein the interception is unlawful. One scenario involves the consent to intercept by either the originator or the receiver of the communication. The other scenario, which is of interest in the Tse case, contemplates a lawful interception where the investigators obtained prior judicial authorization to intercept the communications in accordance with the procedure as set out in the Criminal Code. The application to a Judge for such an authorization is described in section 185 of the Criminal Code.

The application procedure is rigorous: it must be made in writing, it must be made before a superior court judge or a designated judge, it must be signed by the provincial Attorney General or the Minister of Public Safety and Emergency Preparedness or a duly authorized agent specially designated in writing, and must be accompanied by a sworn document (affidavit) of the investigating officer. 

In turn, this affidavit, based on the information and belief of the investigator, must include the following information: the facts justifying the authorization should be given; the particulars of the alleged crime; the type of communication to be intercepted; the names, addresses, and occupations, if known, of all the persons intended to be intercepted together with the reasonable grounds to believe such interception may assist the investigation; a description of the place, if known, where the communication is to be intercepted; general description of how the communication will be intercepted; the number of times, if any, such an application for interception has previously been made under the section and the specific details of that prior application; the length of time for which the interception is required; and why other investigative techniques would not likely succeed or why it would be impractical to use other techniques due to the urgency of the situation or if other techniques were tried and failed, what those other investigative techniques were and why they failed to work.

Even if the above procedure is followed to the letter and even if the peace officer has fulfilled all of these pre-requisites, the application Judge, under section 186, must not issue an authorization unless her or she is satisfied that it is in the best interests of the administration of justice to issue the authorization to intercept and that other investigative techniques have been tried and failed, or are unlikely to succeed, or urgency requires this technique.

The steps needed and the information required before an authorization is issued emphasizes the status quo of non-interception and provides a constitutionally permissible exception to the general rule.

Now that we have stepped back from the section at issue in the Tse decision to look at the broader context, we can appreciate the constitutional deficiencies found in s.184.4. First, as earlier discussed, s. 184.4 is an exception to the exception found in s. 185. Section 184.4 permits a peace officer to intercept a private communication in prescribed exigent circumstances where: the peace officer believes on reasonable grounds that an authorization cannot reasonably be obtained and the peace officer believes on reasonable grounds the interception is “immediately necessary” to prevent an “unlawful act” that would cause “serious harm” to person or property and where either the originator of the communication or the receiver of the communication will cause the harm or is the intended victim of the harm. That’s it. There is no requirement for prior judicial authorization. It is the investigator, not an unbiased judicial officer, who makes the determination of the urgency of the situation.

All the safeguards found in sections 185 and 186 seem to disappear as “urgency” trumps “privacy” in s. 184.4.  Not so according to Justices Moldaver and Karakatsanis. In their view, certain aspects of the section pass “constitutional muster” as it provides an appropriately flexible authorization approach in dire or emergency circumstances. However, this appropriate response can only be found by stepping back once again from the section and looking to s.188.  This section contemplates a “stop-gap” authorization, which is issued in urgent situations where an interception is required before there is an opportunity to apply for an authorization under s.185. This “follow-up” authorization must be sought for the s.184.4 situation as soon as is practicable to minimize the time in which a non-authorized interception is at play, thereby maintaining the rigours of the interception exception.

But wait, did the SCC not find s.184.4 invalid and contrary to the Charter? Yes, but in a very limited way, which protects the integrity of the section and signals to the legal community that crime fighting is back on the Agenda with the Charter’s full approval. The constitutional concern with the section is not the lack of judicial approval for an interception, as that judicial-less state would last only for a short time, but it is the lack of notice, which comes after the interception is used, to the intended targets that causes constitutional concern. No notice to those involved means a lack of oversight of the use of police powers. No notice means a lack of disclosure, which in turn means no ability to take the matter before a Judge to determine the appropriateness of the extreme police actions. It is this failure, which the Harper Government has twelve months to rectify. This is an easy fix with the SCC giving explicit instructions on how to comply.

This telling decision, written by new appointments, gives us some insight into the future. The Charter has recently celebrated its 30th anniversary without much fanfare. This similarly low-key decision reiterates the now familiar Charter values of privacy and oversight but at the same time reinforces the State’s interest to combat crime. The Tse decision appears to provide an interpretation that presumes constitutionality instead of requiring proof of it. It seems to prefer self-referential statutory interpretation as opposed to the trail-blazing early Charter years when Chief Justice Dickson and Madame Justice Wilson wrote sometimes blistering commentaries on the role of the State in protecting Charter rights. Whether or not this is a trend will be seen in the next SCC Charter decision.