Episode 50 of the Ideablawg Podcasts on the Criminal Code of Canada: Criminal Code Reform and Section 55

Welcome to the fiftieth podcast on the Criminal Code of Canada. I started this project almost four years ago and although my output has slowed down, my commitment to providing you with some insight on every Code section has not changed. In this the fiftieth episode, I would like to generally reflect on the recent proposed changes to the Criminal Code and to specifically discuss the proposed revision to section 55 “Evidence of Overt Acts,” the subject of this podcast.

The new amendments contained in Bill C-51, which received first reading on June 6, 2017, will repeal some of the sections I have discussed in previous podcasts. These are sections which are archaic remnants of the initial 1892 Code and their deletion is welcome. In my opinion, however, repealing sections is not a substitute for badly needed reform of the Code into a readable, understandable and modern reflection of societal fundamental values. Piecemeal revision can lead to anomalous results. It can also lessen public confidence in the criminal justice system. Reform may take time but it is time well spent if the Code is one in which all citizens feel they have had an opportunity to create. I know what I am saying I have said before but, in my view, smart re-visioning of our criminal justice system is a position to be repeated.

Before we discuss section 55, I want to point out that Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, also proposes to repeal section 49, Alarming the Queen. I discussed this section in podcast episode 44, which the text of this episode can be accessed here. Fortuitously, we recently used section 49 in a 1L criminal law final exam. A nice send off to an obsolete section, in which the prohibited behaviour could easily form the basis of other charges such as causing a disturbance under s. 175.

Section 55 “Evidence of Overt Acts” rounds out our discussion of the offences falling under the heading “Prohibited Acts” pursuant to Part II Offences Against Public Order. It is not a substantive section, meaning it does not create a criminal offence. Rather the section is, as the headline promises, related to evidentiary proof but in the context of a procedural rule. The section sets out the parameters of the process required to establish an essential element of the prohibited act or actus reus of any of the enumerated offences.

Section 55 presently reads as follows:

In proceedings for an offence against any provision in section 47 or sections 49 to 53, no evidence is admissible of an overt act unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out therein.

This section will be slightly revised if Bill C-51 passes as presented. The changes are very minimal, deleting the reference to s. 49, as it is repealed, and making slight wording adjustments to make the section more readable. The import of the section remains the same and it will read as follows:

55 In proceedings for an offence against any provision in section 47 or sections 50 to 53, evidence of an overt act is not admissible unless that overt act is set out in the indictment or unless the evidence is otherwise relevant as tending to prove an overt act that is set out in the indictment.

Essentially, the section requires an “overt act” to be specified in an Indictment for any of the offences enumerated in section 55 before the court before will admit evidence of such acts at trial. This requirement to specify an overt act in the Indictment is mirrored by section 581(4) of the Criminal Code, a section relating to the form of the counts in the Indictment and the sufficiency of such counts. Subsection (4) requires that where an accused person is charged with the offences, as enumerated under s. 55, “every overt act that is to be relied upon shall be stated in the indictment.”

Although the above explains why we have this procedural/evidentiary section amongst these criminal offences, questions still remain: what exactly is an “overt act” and why is there such a special procedural concern placed on this type of act for these particular offences? These offences are sections we have already encountered in previous podcast episodes and relate to Part II offences against the public order. Section 55, however, does not refer to all offences under the Part but specifically the punishment for treason, the offence of assisting an alien enemy to leave Canada or failing to prevent treason, the offence of intimidating Parliament or the legislature, and the offence of sabotage. These are offences which directly impact our national security interests and are also offences where the modus operandi might include a conspiracy. It is the offence of conspiracy from which the concept of overt acts is most applicable. In order to examine this connection, let’s try to define an “overt act.”

The phrase “overt act” does not appear in any of the enumerated sections found in section 55 but it is found in section 46, which describes the offence of treason, as opposed to section 47, which merely sets out the punishment. The phrase is also found in section 48, another section relating to the charging limitations for treason, requiring that if the charge is based on “an overt act of treason expressed or declared by open and considered speech” the charging document or Information must set out the overt act and the words and the Information must be laid “under oath before a justice” within 6 days of the time the words were spoken. In terms of the rest of the Criminal Code, the phrase is only used in the previously mentioned section 561. See Episode 43 of these podcasts, where I discuss “overt act” as it relates to sections 46, 47 and 48. As I mentioned earlier, treason and overt acts seem to go hand in hand with conspiracy as a treasonable “overt act” for purposes of the section. The crime of conspiracy, under section 46, is therefore a “manifestation” of the intention to commit high treason or treason as required for section 46(2)(d). As I explained in that previous episode, this treatment or really clarification of an overt act as conspiracy is consistent with the original description of treason under English common law and the 1892 Criminal Code.

Before we discuss the phrase itself, now that we wandered through the Criminal Code looking for an overt act, let’s wander a little bit off the path to find where else the phrase “overt act” appears in legislation. Interestingly, and importantly if you are an agriculturalist in the Maritimes, “overt acts” are referenced in the 1990 Newfoundland Poultry and Poultry Products Act, RSNL 1990, the repealed Prince Edward Island Poultry and Poultry Products Act and the repealed and re-enacted Agricultural Development Act of New Brunswick. In the Newfoundland statute, “overt act” is part of the definition of “ship”, “shipping”, “transport” and “transporting” which are defined as the “overt act of a person leading to the movement” of poultry and poultry products by certain specified means or conveyances. Certainly, not the kind of “overt act” contemplated under s. 55.

Now to the definition. An “overt act” is outward behaviour, which consists of readily ascertainable actions. A good example would be the description of the overt act under section 48 as “expressed or declared by open and considered speech.” We can find other examples from three World War One treason cases. In the first case of R v Snyder (1915), 24 C.C.C. 101 (ONCA), the overt act of treason consisted of the acts of the accused in helping people leave Canada to fight with the “enemy” during World War One such as bringing the people to a farm for purposes of then sending them overseas. Rex v Bleiler, a 1917 decision from the then Alberta Supreme Court (Appellate Division), offers another example of overt acts consisting of attempting to sell a “certain device” to the German Emperor or his agents. The case, sadly, never explains exactly what this device is but the overt acts involved the accused writing letters, recommending the device and offering it for purchase, to the German Ambassador to the United States. In these letters, the accused professes his loyalty to Germany and requests the details of the purchase be done secretly. The final case in the trilogy, is from 1918 decision of the Quebec Court of Appeal in The King v Schaefer, a case I referred to previously in the episode 43 podcast on treason. Of interest is the dissenting decision. The facts of the case suggest the cruel effects of wartime prejudices and the use of treason as punishment for ethnic origin and community loyalties rather than for the protection of the public. The facts are best read as excerpted from the dissent of Mr. Justice Lavergne as follows:

1 Israel Schaefer is a Jew who came to reside in Canada some twenty years ago or more. In the first years of his residence here, he became a British subject being naturalized under the Canadian statutes. In October 1914, he had a family of numerous children brought up here. His principal business since many years was to sell transportation tickets, both steamship and railway tickets. He was known as an industrious and very respectable citizen.
2 In October 1914, he sold transportation tickets from Canada to a port in Bulgaria. Bulgaria, at that time, was not at war with any other part of the British Empire. The number of tickets sold is alleged to have been ten. In addition he is alleged to have provided these ten people with documents to further transportation to the boundary line between Roumania and Austria-Hungary. The ten tickets were not all sold on the same date, but at different dates, in October 1914. This was done by Schaefer in the course of his ordinary business...
4 These people or most of them had come from Bukovina, which country formed part of Roumania and part of Austria. Most of these people, if not all of them, spoke Roumanian Language.
5 Schaefer was only charged with assisting the public enemy, but was only charged with assisting ten persons to leave Canada by selling them steamship tickets to a country not at war with Great Britain.
6 He is also charged with counselling these people to speak the Roumanian language. Another charge of furnishing these people monies was not pressed, was virtually abandoned, no attempt whatever was made to establish that allegation. The persons to whom Schaefer sold tickets having been resident in Canada for a few years were in the position of alien amis, and presumed to have paid local allegiance to our Sovereign. The fact that they were not arrested shows that the authorities did not regard them as offenders.

It was the opinion of the dissenting justice in the case that as the overt acts alleged were not connected to “any hostile intention or action,” the charge of treason must fail. Further, the dissent noted that the Indictment set out the acts of the people who left the country as assisting the enemy, not Schaefer, and there was no allegation of conspiracy. Additionally, there was no evidence these people in any way assisted the enemy other than they spoke the language and wanted to go home. Thus, there could be no inference that the overt act outlined in the Indictment manifested an intention for assisting the enemy or any other such treasonable acts. The majority disagreed and upheld the conviction for treason. In their view the Indictment sufficiently described the overt acts of treason being a treasonable design to assist the enemy and the overt acts in furtherance of it. This case presents quite a differing view of the overt acts and highlights the impact of contextual societal events can have on decision-making.

There are several cases, more recent ones, on the sufficiency of counts in an Indictment and specifically, in the case of a conspiracy charge. Certainly, section 55 could engage a sufficiency argument in the appropriate case and therefore this section, although only related to a few offences against the public order, has a relationship to other procedural sections in the Code. We will get to those sections as we continue our journey through the Criminal Code.

 

 

 

 

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

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

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

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

Section 24 has two subsections and reads as follows:

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

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

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

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

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

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

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

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

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

 

 

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