Episode 54 of the Ideablawg Podcast on the Criminal Code of Canada: The Self-Fulfilling Words of Sedition under sections 59 to 61 or Presuming the Worst (Text Version)

Sedition, as with treason and other offences under Part II of the Criminal Code, is an offence against public order. It is directed to expressive communication, verbal or written, which promotes unlawful violent upheaval of the government, akin to treason. There are a number of exceptions to this general concept of sedition to permit lawful criticism of governmental actions. The punishment for sedition is severe, attracting a maximum term of fourteen years incarceration. There are many issues arising from this section. The obvious one involves a discussion of the constitutionality of the section considering it engages Charter expression, albeit violent expression that would most likely be saved under a s. 1 argument (for further discussion see Boucher v. The King,1949, SCC and R v Keegstra, 1990, SCC). An additional issue stems from the ever-present public policy question as to why certain sections still remain in the Code when there many other sections which could capture the essence of this offence.

For the sake of keeping this podcast contained in time and space, I will not discuss the obvious issues but will concentrate on the “presumption” of having a seditious intention by proof of the speaking of seditious words, the publishing of seditious libel or being a party to a seditious conspiracy. The podcast may seem a tad esoteric as a result, but I believe the discussion will reveal a singular truth about this section as well as raise a doubt in our mind as to the efficacy of a “common sense” notion regularly relied upon in our courts. The circularity and the historical meaning of this presumption, suggests this section raises Charter issues, not on the basis of s. 2(b), but on the presumption of innocence under s. 11(d).

First, a little housekeeping on the background of the sections. The offence, as with many of the offences under Part II, came to Canada from the English common law. A version of the offence is found in the 1892Criminal Code under sections 123 to 124. The punishment for the various forms of sedition in 1892 was two years imprisonment, a marked contrast to the punishment found in the current Code. Except for the punishment, the 1892 version of sedition is similar to the current s. 61 and to section 59(1) to (3). The original sections also provided very similar exceptions to the meaning of seditious intention as found under the current section 60. However, the original sections did not describe “seditious intention” nor did it provide for a presumption as stipulated under the current s. 59(4). This addition was brought into the Code in 1936. 

It is in Burbidge’s Digest of the Criminal Law of Canada, which predates the Code, where we perceive a clearer understanding of the meaning of seditious intention and the use of the presumption. Article 123 of Burbidge’s defines seditious intention as:

A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against, the person of Her Majesty, her heirs or successors, or the government and constitution of the United Kingdom or of Canada, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in the State by law established,or to incite any person to commit any crime, in disturbance of the peace, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.

This form of sedition is certainly broader than the now contemplated offence as it does not restrict the intention to a violent one or an unlawful one considering a seditious intention can be shown through the intention to “excite disaffection” against the Crown and state. There are cases discussing the implication of this definition of sedition, notably cases involving actions during war time. For instance, in Rex v Barron1918 CanLII 195 (SK CA),the Saskatchewan Court of Appeal considered sedition in relation to seditious words spoken during World War One as follows: “Everyone who gives to the Red Cross is crazy. If no one would give to the Red Cross the war would stop. The other country would beat this country if no one would give to the Red Cross.” The accused was found guilty of sedition by a jury. The issue on appeal was the admission of similar previous sentiments expressed by the accused. The conviction was affirmed with a dissent. The court discussed the difference between a merely disloyal statement and one which is “calculated to raise disaffection.” An expression of an opinion in a “chance conversation” was different than the seditious intention evinced by trying to persuade people not to contribute to the war effort “for the avowed purpose of enabling the enemy to win the war.” The conviction was upheld as the purpose of the Appellant’s comments, according to Saskatchewan Chief Justice Haultain, were “equivalent to raising disaffection” as the words would “stir up a spirit of disloyalty, even by a mercenary appeal, leading to action or inaction in favour of the enemy.”

The present offence is found under section 61 and reads as follows:

61 Every one who

(a) speaks seditious words,

(b) publishes a seditious libel, or

(c) is a party to a seditious conspiracy,

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

There are three ways in which a person can be charged with sedition under this section. First, the accused can “speak” “seditious” words. Second, the accused can be charged for publishing “seditious libel” and thirdly the accused may be charged as a party to “seditious” conspiracy. 

All three modes of committing the offence require, as an element of the actus reusor prohibited act, proof of a “seditious” act as defined under section 59. Section 59 offers a cumbersome, layered definition of sedition. Section 59 (1) defines “seditious words” as “words that express a seditious intention.” The phrase “seditious intention” is a presumption based on conduct as enumerated, in a non-exhaustive manner, under s. 59(4). The conduct which gives rise to the presumption of “seditious intention” is teaching, advocating, publishing or advocating in writing, “the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada.” Thus, actions are transformed into intentions. The actus reus becomes the mens rea

At first glance, this does not seem so radical. In crimes of “minimal intent” such as assault, Justice Wilson, in the 1988 Bernard case on the role of intoxication for general intent offences, suggested the mens rea can be inferred from the actus reus. In other words, the intention required under s. 265 – an intentional application of force – can be gleaned from the application of that force. This, however, is an inference which may be drawn, not must be drawn, and it does not relieve the Crown from its legal burden to prove the offence beyond a reasonable doubt. The problem with this circular relationship in sedition between the actus reus and mens rea is there is no inference to be made – the inference is self-made as a presumption.

Historically, the presumption relating to seditious intention was specifically described and articulated under Article 124 of Burbidge’s Digest of the Criminal Law of Canada as follows: 

In determining whether the intention with which any words were spoken, any document was published, or any agreement was made, was or was not seditious, every person must be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.

This presumption reads very similar to what is the permissive inference the trier of fact may draw that a person intends the natural consequences of their actions. This “common sense” inference, as Justice Moldaver will later call it in the 2012 Walle decision, sounds similar to the “minimal intent” comment made by Justice Wilson in the context of intoxication. In fact, intoxication was a factor in the Walledecision. The significant difference is the directive – “must” for a presumption – rather than a permissive in the “may” for an inference. The 'mandatory’ presumption is a legal construct in which a trier of fact mustinfer the presumed fact upon proof of an underlying fact. Presumptions are rebuttable but in being so, the party opposing the application of such presumption has the burden to displace it. In other words, the directive used for presumptions is the status quo or the default position, whilst the permissive does not suggest or contemplate a position, other than what is required in the legal burden and standard of proof of the burden on the Crown to prove beyond a reasonable doubt. 

 The difference is not puerile but real. In the 1969 Ontario Court of Appeal decision of R v Ortt, the court clarified that this “common-sense” notion of a person intending the consequence of their actions, was not a presumption or a “must infer” but was a permissive inference only. Making such an inference permissive was needed to ensure the burden on the Crown did not shift onto the accused in a criminal case. Such a shift of the burden of proof would be contrary to another more well-known presumption, the presumption of innocence. Of course, the presumption of innocence, as I have discussed in earlier podcasts here, is a fundamental expression of our societal values, and as constitutionalized under s. 11(d) must be preserved in the face of other presumptions which may run contrary to that core concept. 

It is all well and good to turn this “common sense” notion into a permissive concept in order to preserve the sentiment from Charterscrutiny, however, to merely flip a switch from Chartercaution to Charterfriendly causes concern. That concern is most evident when faced with the statutory presumption in sedition. In sedition, the very same notion – as defined under Burbidge’s Article 124 - is deemed a permissive inference under Walle. Which is it? Is it permissive and constitutional? Or, is it presumptive and contrary to s. 11(d)? Can a change of words, change the weight of such a “common sense” notion? One could argue that the concept relied upon with this presumption for sedition, that people mean what they do, is such a pernicious idea that labelling this notorious fact as a “permissive inference” is not only counter-intuitive but false. By not labelling this inference for what it is, as a presumption, the court is preserving the constitutionality of the concept in form yet permitting the presumption to live in content. This lends weight to in my previous blog posting on the Walle decision that the inference found in common law – that a person intends the natural consequence of their actions - imports an objective dimension into subjective mens rea offences, specifically murder.  

There are exceptions to the presumption, where, under s. 60, certain acts would not “deem” a person to have seditious intention. Even that term “deem,” strengthens the argument that we are working in a legal doctrine or construct, which is mandating a substitution of the actus reus for the mens rea upon proof of certain acts. A substitution, not an inference. This, I suggest, goes further than a violation of s. 11(d) and becomes a violation of s. 7, similar to the concern raised in R v Daviault in 1994, where the act of self-induced intoxication was used as a substitute for mens rea. This elimination of a need for a fault element runs contrary to the principles of fundamental justice as found in R v Vaillancourt and R v Martineau. An accused could still be convicted despite a reasonable doubt the accused intended to commit the sedition.

Those exceptions do permit healthy political dissent. Thus under s. 60:

... no person shall be deemed to have a seditious intention by reason only that he intends, in good faith,

(a) to show that Her Majesty has been misled or mistaken in her measures;

(b) to point out errors or defects in

(i) the government or constitution of Canada or a province,

(ii) Parliament or the legislature of a province, or

(iii) the administration of justice in Canada;

(c) to procure, by lawful means, the alteration of any matter of government in Canada; or

(d) to point out, for the purpose of removal, matters that produce or tend to produce feelings of hostility and ill-will between different classes of persons in Canada.

The s. 60(d) exception could use further explanation. I take this oddly worded exception as a provision for a public good argument.  This except brings the Buzzanger and Durocher case to mind, an Ontario Court of Appeal decision written by Justice G. Arthur Martin, who allowed the Appellants' appeal against conviction for wilfully promoting hatred under the now s. 319(2) of the Criminal Code. There, the Appellants did not have the requisite high level of intention required to commit the offence "wilfully" as their intention in publishing the pamphlet railing against the Francophone community was not to promote hatred but to highlight the absurdity of hatred through the use of satire. Often, in eradicating professions of hatred against others or against government initiatives, the message must reference those abhorrent sentiments to show the fallacy and harm of those repugnant behaviours. To do so, this subsection clarifies, is not seditious. Indeed, through this exception, we are not presuming the worst of people. 

The sedition sections are, as I said at the start of this podcast, an example of the kind of public behaviours we deem worthy of punishment through our criminal law. However, what was worthy in 1892 may not be as much of a concern now where we have many other tools at our disposal in other sections of the Code. The emphasis of this offence should be on the potential violence propounded by the offence and not on the words of dissent, which is protected and accepted in any healthy democracy. If violence is the key, then the section fails to resonate with that concept as a result of the poor wording of the section and the choice to rely on a mandatory presumption of intent. Here is yet another criminal offence to add to the list of Code reform.

On First Looking At the New Code Amendments (with thanks to Keats for the title)

In March of 2017, the federal government renewed its commitment to modernize the Criminal Code by tabling legislation to repeal the so-called “Zombie” laws – a term coined by Professor Peter Sankoff to denote those criminal laws that are the “walking dead” of the Criminal Code – still on the books but deemed unconstitutional. Although a step in the right direction, this announcement seemed like a “no brainer.” It also just happens to be consistent with the mandate letter, sent by the Prime Minister to the Minster of Justice, admonishing the Minister to uphold the Constitution and respect the Charter.

Besides repealing the unconstitutional sections, the list of problems with the Criminal Code remains. This list is, well, longer than the Code should you desire to place each page side by side. With well over 849 sections (considering the “accordion” sections whereby the government folded in between sections, other sections, such as the 33 sections residing between s. 487 and s. 488: for further information read my blog entitled The Infinite Lists of The Law), the Code is a statutory behemoth, a virtual cornucopia of delights including archaic laws such as the rarely used forcible detainer at s. 72(2)) jumbled with brand new crimes, once considered regulatory offences, such as the new offence (circa 2014) of selling unpackaged stamp-less tobacco products under s. 121.1.

Recently, however, the government appears to be taking another step toward the modern by unveiling their revisionist vision through some new amendments to Code sections. This came about serendipitously as the government needed to fulfill an election promise of decriminalizing the use of marijuana. To do this, the government realized they needed to not only remove laws but to fix them. So as part of the modernization of our drug laws, the government revised the Criminal Code sections on impaired driving (sections 253 to 259), and while they were in the area anyway, to freshen up the other driving offences, namely dangerous driving under s. 249, with a “new look.”

As soon as these legislative changes were tabled in Parliament, everyone brought out the magnifying glasses. Each word of the proposed legislation, newly delivered, has been scrutinized. Mainly, the focus is on the impaired driving amendments, which, quite frankly, look a little Charter unfriendly, despite the stern warning of that mandate letter to be respectful. But leaving the Charter aside, which it appears the government may be doing with these sections, let us not consider the minutiae of this Bill, rather let us consider the general efficacy of the government’s approach.

Putting away our magnifiers then, we should consider the “big picture,” and ask whether the federal government is truly modernizing the criminal law and bringing it kicking and screaming into the 21st Century. It would appear, in fact, at least with the impaired driving amendments, that this is not what is happening. It would appear the government is instead merely back filling; reacting to weaknesses in the old legislation by plugging up the holes, like the little Dutch boy, to ensure the dike doesn’t leak. The changes are therefore reactive, not proactive. They are backward looking, not forward facing. The drafting of these new sections does not assist us in walking toward the future. The sections are prolix and dense. Furthermore, the amendments do not send the message of a new Canada which is tolerant, diverse and progressive. The sections download onto the citizen the burden of ensuring that their conduct, even after they are no longer driving, wherever they may be, whatever their emotional or physical state may be, is reasonable. Whatever that means. At the same time, the new sections relieve the state of the burden of justifying the use of its authority to investigate. Even without glasses, it seems the revisions are not very 21st century.

Turning to the other changes, quietly placed in the Bill is the new Part VIII.1 (which by the way is still perpetuating the archaic use of Roman Numerals) entitled “Offences Relating To Conveyances”. At first blush, one has visions of property offences relating to land titles. On a closer look, the “recognition and declaration” (the only other legislation this kind of section is found is in the Alberta Bill of Rights, RSA, 2000) in section 320.12 advises us what we already were told by Justice Cory in Hundal that licensing, as in operating a “conveyance,” is a privilege and the rules of the road, so to speak, must be observed. Section 320.11 defines “conveyance” as a motor vehicle, vessel, aircraft or railway equipment. These conveyances were also subject of the now to be replaced dangerous operation section 249. Section 320.13, as the new dangerous operation section, creates an offence where a conveyance is operated, having regard to all of the circumstances, dangerous to the public. The soon-to-be-replaced s. 249 is similarly worded, although it gives a clearer description of what those circumstances could be, such as “the nature, condition and use of the place” of operation.

After this closer look, it becomes clear that this “new” Part is not really new at all but merely a short hand version of the old.  The new changes are not a change but a touch up, a change in nomenclature, maybe even a nod to the past case law. Again, what is the impetus of this change? The decriminalization of marijuana, which requires a change to the impaired driving laws, which requires the government to react to previous case law by filling in legislative gaps, which requires the government to change all of the driving offences, which causes the government to show they are modernizing the Code by simplifying the sections.

What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

 

Episode 48 of the Ideablawg Podcasts on the Criminal Code of Canada: Inciting Mutiny Under Section 53

Mutiny is a familiar subject. It is familiar in a narrative sense: take Mutiny on the Bounty for instance and the well-known story of an uprising against the cruel authority of Captain Bligh. Yet the story is not fictitious. Pitcairn Islands which harboured First Officer Fletcher Christian and the “mutinous” soldiers of the Bounty, is still populated by the descendants of the mutineers and remains a remnant of British colonialism. In that story, we tend to sympathize with the mutinous survivors who are depicted as justified in their actions. The story and the sympathies find repetition in the classic 1950s Henry Fonda/James Cagney movie, Mister Roberts.  Again, the concept of struggling against unjust authority appears to be the theme. Yet, the actual Criminal Code offence of mutiny does not contain these built-in sympathies. In fact, although we rarely consider mutiny as a modern circumstance, it is a serious offence in our Criminal Code. Today, in the 48th episode of the Ideablawg podcasts on the Criminal Code, we will explore the offence of inciting mutiny.

 

Mutiny or inciting to mutiny as the offence is framed in section 53 is an English common law offence found in our first 1892 Criminal Code. It is one of the prohibited acts against the public order along with other offences such as alarming the Queen under s. 49. It is an offence whose purpose is to sanction treasonous or mutinous actions involving seduction or inciting of Canadian military personnel to act against the interests of the state. It reads as follows:

 

 53 Every one who

 

         (a) attempts, for a traitorous or mutinous purpose, to seduce a member of the Canadian Forces from his duty and allegiance to Her Majesty, or

         (b) attempts to incite or to induce a member of the Canadian Forces to commit a traitorous or mutinous act,

 

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

 

Originally, until 1952-53 Code amendments, this offence was punishable by life imprisonment and therefore considered as serious as treason and murder. In fact, the offence remains a s. 469 offence, and, therefore, must be tried in Superior Court.

 

It should be noted that this is an offence of attempting to seduce, incite or induce as opposed to the actual completion of the contemplated action.  The complete offences would fulfill the elements of the full offence of treason under s. 46 or even sedition under s. 63. Indeed, the original wording of the offence, as found in the 1892 Code, requires the offender to “endeavor” to seduce, incite or “stir up.” According to the Oxford Dictionary online, “endeavor” means “an attempt to achieve a goal.” The use of the term “endeavor” is consistent with the ulterior purpose required for the mens rea element of this section, which is to effect the prohibited conduct for “a traitorous or mutinous purpose.” Applying the 1995 SCC Hibbert case to the use of the word “purpose,” the Crown would need to prove beyond a reasonable doubt that the accused acted with a high level of subjective mens rea.

 

Returning to the actus reus components of the section, the term “mutinous” or “mutiny” is not defined in the Criminal Code. “Mutiny” is defined under the National Defence Act as “collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty’s Forces or in any forces cooperating therewith.” This definition reiterates the fact this crime is not unlike a counselling or conspiracy offence under the Code. It also requires “collective” behaviour involving more than one individual. The term “insubordination” has a peculiar meaning as reflected by the sections 83 to 87 of the National Defence Act. These insubordination offences cover a broad range of behaviour such as using threatening or insulting language to a superior officer under s. 85 or “strikes or uses violence” toward a superior officer. Desertion, however, is not considered an offence of “insubordination” but a separate infraction as is sedition.

 

In the Criminal Code, the term “insubordination” is used in “offences in relation to military forces” under s. 62 of the Code. We will discuss this offence later in this journey through the Criminal Code but in reading s. 62, which makes it an offence to counsel insubordination or mutiny, one wonders what the differences are between the two offences. Section 62 was not in the 1892 Code but was added in 1951 Code amendments. Certainly, section 53 is the broader offence and, as mentioned earlier, punishes an attempt to incite mutiny or treason. However, section 62 punishes the full or complete offence of mutiny, among other prohibited acts such as insubordination, yet the maximum punishment is by a term of imprisonment not exceeding five years. Clearly, section 62, the full offence, is considered a less serious offence than its counterpart s. 53, which punishes an attempt. Considering this, the assumption must be that the s. 53 offence is meant to capture more serious behaviour than just “collective insubordination.” However, in a 2004 court martial decision, Blouin P.S. (Corporal), R. v., 2004 CM 25 (CanLII), the presiding military judge in sentencing Corporal Blouin for a form of insubordination under s. 84 of the National Defence Act involving an assault of a superior officer, described the act as “attacking not merely the individual but the cornerstone of the military institution he or she represents: the chain of command.” The judge then characterized the offence of insubordination as “objectively serious as the offence of treason or mutiny.”

 

Another aspect of the actus reus is the requirement the accused “seduce” under 53(a) or “incite or induce” under 53(b) a member of the Canadian Forces. The concept of seduction is an old one as found in offences of seduction in the 1892 Code, which have now been repealed, such as the offence of seduction of females who are passengers on vessels, or the offence of seduction of girls under sixteen years. Presently, s. 53 is the only section in the Criminal Code referring to seduction. What does “seduce” then mean? The word “seduction” arises from the Latin word “seduco” meaning to draw aside or lead astray. Of course, there was a decidedly gender bias to those original seduction offences and the case law on the interpretation of the word “seduction” reflects that. In the 1927 Saskatchewan Queen’s Bench decision, R v Schemmer, seduction was deemed to be a word connoting a loss of a woman’s virtue imbuing the offence with a moralistic condemnation. By analogy therefore “seduce” as used in s. 53 has an aspect of a “fall from grace” as epitomized by Darth Vader in Star Wars who attempts to “seduce” his son, Luke Skywalker, to the dark side of the force.

 

The Court in the Schemmer decision suggests seduction requires an element of enticement and inducement, which happen to be the prohibited act requirements for the mutiny offence under s. 53(b). “Incite” as defined in the Merriam Webster online dictionary is to “urge on” or “stir up”. As previously mentioned the phrase “stir up” was included in the original 1892 offence. “Induce” is to “move by persuasion or influence” and is related to “seduce” but in the online dictionary “seduce” is to “lead astray by persuasion” or by “false promises,” giving seduction a fraudulent tone. A further definition of “seduce” includes “to persuade to disobedience or disloyalty” which seems to be the conduct underlying s. 53.

 

It should be noted that Canadian Forces is defined under section 2 of the Code as the armed forces “of Her Majesty raised by Canada.”

 

A final aspect of the section 53(a) offence is the requirement that the prohibited act involves an attempt to seduce a member from his or her “duty and allegiance to Her Majesty.” This requires proof that the seduction is directly linked to the member’s duty and allegiance to the sovereign. 

 

Section 53 is presently rarely used and appears to have a “doppelganger” section in the form of section 62. This section should certainly be considered in the revisions of the Code as a section no longer used or needed in our criminal law.