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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Let’s read the section in full:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Section 3 "For Convenience of Reference Only": Episode Three of the Ideablawg Podcast on the Canadian Criminal Code

The following is the text version of Episode Three of the Ideablawg Podcast on the Canadian Criminal Code. At the end of the text is the actual podcast or, better yet, download the podcast directly from iTunes by searching for ideablawg. Enjoy!

Today we are going to discuss section 3 of the Criminal Code, which is the last section under the interpretation heading. Last week we looked at sections 2 and 2.1, which were definitions of some, but not all, terms used in the Code. As I mentioned last week, the federal Interpretation Act applies to all federal statutes, and therefore the Criminal Code, as long as the provisions found in the Interpretation Act are not inconsistent with the specific statute. If there is a contrary intention, then, the Interpretation Act must give way and the provision found in the specific Act is the rule.

So, this puny interpretation segment in the Code is most definitely not the last word on how to interpret the Code. Indeed, besides legislative interpretation, which is what we are doing here, there is also judge-made interpretation found in case law. Today, we are going to look at case law in understanding section 3 because the puzzle is – what is the significance of this odd section and why, of all the statutory interpretation rules, it is here.

Let’s start with reading this section in order to get our bearings:

First the title of this section – which by the way does not form part of the section but is a way to identify and organize sections in the Code – is “descriptive cross-references.” Far from being “descriptive” this heading is not telling us much. The actual section 3 reads as follows:

Where, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parenthesis that are or purport to be descriptive of the subject-matter of the provision referred to, the words in parenthesis form no part of the provision in which they occur but shall be deemed to have been inserted for convenience of reference only.

By the way at the end of each section of the Code there is an odd phrase, in this case, “1976-77, c. 53, s. 2.” This phrase denotes the year the section was enacted, in this case 1976-77, and also the chapter number, c.53, of the amending statute with the section, S.2. When the actual amendment is integrated into the Code, the chapter and section number becomes meaningless but it is the year, which gives us valuable information. For example, the previous section, 2.1, which told us that the firearm definitions under s.84(1) apply throughout the Code, was placed in the Code in 2009. So, what we do know about section 3 is that it has been around for quite awhile.


Now getting back to the actual section. What does it mean? Good question. It is one of those sections I call “ugly sections,” which are difficult to understand and require multiple readings before you can glean the meaning. But upon re-reading, the meaning is quite clear: throughout the Code, there may be references to other sections of the Code or even other sections of another statute. There also may be, in parenthesis or brackets, a description of that referred to section following the section number. These parentheses descriptions, so section 3 suggests, may not be completely accurate as they merely act as signifiers of that particular section. Therefore, s. 3 warns the reader that if they do see a description in parenthesis following a section, that description is only there to give us a heads up on what the referred to section means and is not part of the Criminal Code. It’s just a “BTW,” or “By The Way” information for your “convenience of reference only.” Great, thanks for the caution, but that does not explain why, of all the various statutory interpretation rules there are, and there are many, this particular one is integrated into the Code.

Now let’s discuss statutory interpretation. This will be a very superficial discussion as such a talk could and does form a whole course, typically an optional course, offered in law school. “TBH” or “to be honest,” this kind of course should be mandatory for all law students considering the amount of time we all spend, no matter what area of law, reading and trying to understand statutes.

To explain statutory interpretation, I am actually going to go to case law and a recent Supreme Court of Canada criminal law case from 2012 called R v. Dineley. Mr. Dineley was charged with impaired driving and driving with a blood alcohol concentration over the legal limit. Due to amendments to the Criminal Code a particular defence, which permitted the accused to challenge the accuracy of the breathalyzer readings based on an expert’s toxicology report, called the Carter defence, was eliminated. This amendment happened during Mr. Dineley’s trial and his counsel argued that the amendment could not be applied retrospectively, according to rules of statutory interpretation, and therefore the Carter defence was still valid.

The trial judge agreed and acquitted Dineley but the Court of Appeal for Ontario disagreed and ordered a new trial. The Supreme Court of Canada in a split decision agreed with the trial judge, found the new amendment could not be applied retroactively and upheld the acquittal.

Despite this, I am going to take us to the dissent written by Mr. Justice Cromwell, who has an administrative law background and explains in this case what statutory interpretation does. I am going to read some excerpts of Justice Cromwell’s decision to help us:

He first says: “statutory interpretation aims to ascertain legislative intent…”.

Then, he states what is really the first principle of statutory interpretation:

The courts ascertain legislative intent by reading legislative language in context and in its grammatical and ordinary sense, harmoniously with the scheme and purpose of the legislation at issue...

And here is another fundamental interpretation principle: “When the legislator’s words permit it, the courts will take the legislature not to have intended to work injustice or unfairness.”


Hopefully, you get the idea: that the rules of statutory interpretation are supposed to not only help clarify what we read but also to bring us into the parliamentarian heart whereby we can see and feel the purpose of the framers of legislation in writing the Act. However, we are also not supposed to read too much into this intent, instead we should take a balanced approach, which I would suggest involves applying some good common sense. Conversely, in the United States, the concept has taken a life of its own when dealing with the Constitution through the doctrine of “original intent.” This principle has not gone without controversy but certainly the US Supreme Court is much more concerned with the original intent of the founding fathers than we are of the fathers of confederation. Be that as it may, statutory interpretation is a complex and at times, changing area of law.

This does lead us however to the Interpretation Act, which is chock-full of rules of interpretation and construction. It tells us, for example, that the law is “always speaking” meaning that a law may be fashioned in x year but it applies even if it is used in x + 50 years – as long as the law has not been repealed. It even explains the preambles we were discussing in podcast one: section 13 of the Interpretation Act states "The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object."

It does not however tell us what to do if we see words in parentheses. It does, in section 14, advise us that:

Marginal notes and references to former enactments that appear after the end of a section or other division in an enactment form no part of the enactment, but are inserted for convenience of reference only.

This sounds like a very similar caution to section 3 of the Code. So in the end section 3 is really only doing what section 14 of the Interpretation Act is doing, except in the Code parentheses are used. By the way, there are also marginal notes in the Code, such as those headings I have been referring to and which form no part of the actual statute but are just there for organizational purposes.


So where do we find these parentheses actually being used in the Code? Typically, where there is a list of offences such as in s. 231. This section sets out in what circumstances murder is classified, for parole ineligibility purposes, as first-degree. Section 231(5) lists the offences for which an offender, who causes the death of another, is found committing or attempting to commit will then be guilty of first-degree murder. For example s. 231(5)(e) states “section 279 (kidnapping and forcible confinement)”. The words in the parenthesis describe summarily the offence found under s. 279 and is there for “convenience of reference only.” In fact, case law suggests that to describe s. 279(2) as “forcible confinement” is inaccurate as the better description is “unlawful confinement.”

Thank you for joining me on this third podcast. Next week, we won’t be going too far as we discuss s. 3.1 of the Criminal Code. The section is a throwback to the interpretation segment but it falls under a completely new heading and is under the first Part of the Criminal CodePart I – called the “General” Part of the Code.


Episode Three of the ideablawg Podcast on the Canadian Criminal Code: Section 3 "For Your Convenience Only"

Let’s Talk About the Canadian Criminal Code: Episode Two Section 2 (and s. 2.1) - Definitions

Welcome to episode two of the Ideablawg Podcast entitled: Let’s Talk About the Canadian Criminal Code.

Last week we discussed the short but complete section 1 “naming section.” This week we will talk about its polar opposite: the hefty yet incomplete section 2.

As discussed in the last podcast, there is a method to the madness of writing legislation. Indeed the framework or structure of a statute is not whimsical but follows certain prescribed formats. These formats may differ slightly from statute to statute and from levels of government as we learned when we talked about preambles to an act as opposed to a purpose section found within a statute. But in essentials, statutes tend to look very similar.

One of these similarities is found in section 2 of the Criminal Code – found under the interpretation segment of the Code, entitled “definitions.” These words and phrases are definitions of key terms used within the Criminal Code.

Now I called this section hefty yet incomplete. Hefty, because this section 2, which is not broken down into subsections as other sections of the Code are, provides us with a long alphabetical list of words in which some terms are defined quite lengthily. In fact, there are 73 words listed under section 2 from “Act” to “Writing.” Of the 73, 2 are repealed: the term “feeble-minded person” was repealed in 1991 and “magistrate” in 1985 as these terms are no longer used in the Criminal Code. Of course, Canada no longer has any “magistrates” as they are now known as “provincial court judges.”

The term “feeble-minded person,” however, comes from the old rape provisions in the Criminal Code, namely s.148, and came into force through the 1922 Code amendments.   It is difficult to read this old section without cringing:

s. 148. Every male person who, under circumstances that do not amount to rape, has sexual intercourse with a female person

(a) who is not his wife, and

(b) who is and who he knows or has good reason to believe is feeble-minded, insane, or is an idiot or imbecile,

is guilty of an indictable offence and is liable to imprisonment for five years.

The term also applied when considering the old insanity defence under the now amended (as of 1991 there is no insanity defence but an offender may be found NCR or “not criminally responsible” as a result of a mental disorder) s.16 of the Criminal Code. Unlike the rape provisions, this term when used in the context of insanity, applied equally to men and women. Interestingly, in the 1984 Supreme Court of Canada decision, rendered a year before the term was repealed, Justice Dickson, as he then was, in the Ogg-Moss case, agreed that the term was “somewhat disturbing to modern sensibilities” but was really equivalent to saying “mentally retarded” or “developmentally handicapped.” Of course, both of those terms today are deemed completely inappropriate as well. The term “mental disability” is now the preferred adjective. There is still a sexual offence related to this: sexual exploitation of person with mental or physical disability under s.153.1 and it applies to both men and women, married or not.

Amazing that the term, “feeble-minded person,” was only repealed in 1985.

I also call out this so-called definition section as being incomplete. Incomplete, because not all words used in the Code are defined. This has a twofold significance: as not every word which we would like to be defined is defined and not every word which is defined is found under this section.

Let's tackle the first thought: not every word we would like to be defined is defined in the Criminal Code. As we ramble through the Code, we will be faced with some crimes for which some essential elements of the prohibited act are not defined for us. At this point our only recourse is to go to the case law. Case law produced, by judges, interpret statutes together with principles found in the common law and come up with legal interpretations or definitions of the words used.   If there is no case law on the word or phrase then a lawyer is forced to be creative and come up with a definition, which they hope the trial judge will accept. To be frank, the best starting point to do this is the dictionary. How is this word defined in Webster or Oxford? Then, how is it defined in case law? In other jurisdictions? And so on. To me this is the fun part of being a lawyer – when you can be part of the creation of the law.

An example would be the phrase “planned and deliberate” under s.231(2) of the Code, which is the section outlining when murder is deemed first-degree. The term is only important for sentencing classification and comes into play only after the Crown has proved beyond a reasonable doubt the intention required for murder as found under s.229. This phrase is not defined in the Code but is neatly defined in case law to mean the follows: planned - a scheme or design previously formed, and deliberate - considered and not impulsive.

Now the second thought: not every defined word is found under this section, tells us that there are other places in the Code where words are defined. For instance, there are definitions, as referred earlier, at the beginning of some Parts of the Code such as Part VI Invasion of Privacy.

There are also definitions found within sections of the Code such as the term “crime comic” under s.163(7).

Then there are the hidden gems such as the term “negligence,” an extremely important term as it signifies the level of intention required to commit an offence and is used for one of the most serious offences in the Code s.222(5)(b) manslaughter. Yet, “negligence” is defined only by reference to a title of a section. In section 436, entitled Arson By Negligence, a fairly recent offence in the Code from 1990, the actual section setting out the crime does not use the word “negligence” but instead defines it as follows:

“Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.”

“As a result of a marked departure from the standard of care that a reasonably prudent person would use” is the definition, found in case law, of criminal negligence. I leave it to you to decide if this is indeed a “hidden gem” or merely another example of the complexities of our Criminal Code.

So, in the end, section 2 is not only a list of some definitions but is also a list of what is not defined in the Criminal Code.

 But of course it is not that simple.

For example, let’s look at a recent definition added to section 2 – “justice system participant.” The definition is a list of very specific categories of people who come under this term, such as under

(a) “a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council.”

Caution is required, however, as the definition is also very broad: under (b) it is also

“a person who plays a role in the administration of criminal justice.”

The definition does go on to list examples, but clearly this definition is not exhaustive. Imagine if we went to the dictionary for a definition of a word and it said etc, etc, etc.. Not overly helpful is it – so again we are down to case law and a possible argument in court in order to define the definitions and give them boundaries.

Before I close, I would like to discuss s. 2.1, which is a new section added in 2009. This section also provides us with definitions; in fact it is entitled “further definitions – firearms.” Okay, so instead of amending section 2, the government simply added a section 2.1 with firearm specific definitions.

Well, no not really.

Section 2.1 merely points us to the place where the listed terms are actually defined. The section lists words such as “ammunition” and “replica firearm” and tells us that those listed words have the same meaning as in s. 84(1). If we go to s. 84(1), we see a section defining a number of terms, including the ones listed under s. 2.1. This s. 84(1) is in fact the definition section for Part III of the Code on Firearms and Other Weapons. As mentioned earlier a Part may start with definitions of words found within the particular Part. Certainly, there are no definitions in the Code, which contradict, meaning there are no definitions of a term for one Part of the Code and then a different definition for the exact same term in another Part. So why did the government add this s. 2.1? For clarification? For extra emphasis? Why?

Well, in my view, Section 2.1 instead of clarifying actually does the reverse as it leaves the impression that if the word is only defined under a particular Part, that does not necessarily mean that word, if found elsewhere, has the same meaning.

And to make us even more confused, there is a federal statute with definitions, which apply to all federal legislation, as long as it is consistent with that legislation, called the Interpretation Act.

Now that’s confusion for you, that’s the Criminal Code for you, and that is the podcast for this week.

Next week we will discuss this Interpretation Act a bit more when we look at the last of the interpretation sections in the Code: section 3

Please note: This is the text of the Episode Two of my podcast. I do not have the audio file attached but will be sending out the actual podcast in a separate file.

The Ideablawg Criminal Law Trend for 2013-2014: On Sentencing and On Podcasting

I start my criminal lectures at MRU with a current events “sweep” of criminal cases to ground the principles and the legal “speak,” learned throughout the course, with what is really going on out there in the real world of crime. This connects concept to context, which is so important in law, in order to teach the student to apply principles to a real life fact situation. This acquired aptitude requires the student to be comfortable outside of the academic rigour of law books, a much-needed skill in the lawyering world, which promotes creativity as the context forces the student to visualize alternate solutions for the legal problem.

As I teach in Alberta, I tend to look locally when I scout out the criminal law news of the week. This past week was so full of connections that we spent a good half hour discussing three of these current cases. Interestingly, the cases themselves were connected as they all referred to the sentence imposed in each particular case.

Of course, sentencing is the last act in a criminal case where there is a conviction. Most of the “legal business” of criminal law is concerned with pre-sentence matters such as the elements of a criminal offence and the application of criminal procedure, particularly in the Charter era. Sentencing is not even taught in the mandatory first year criminal law courses and some law schools do not even offer a sentencing law course. And yet, it is the sentence, the punishment to be imposed, which garners the most public attention and hence catches the most media attention as well.

The reason for this preference is varied. My theory on the popularity of sentencing cases in the media is that sentencing tends to be easily understandable to the average citizen. Everyone appreciates the significance of time in jail. No one needs the Criminal Code to explain that. Furthermore, sentencing is the only piece of the case in which the human aspect is so “front and centre,” no longer taking a backseat to the incident itself.

The victim, at a sentencing hearing, has the right to “speak” through the “victim impact statement” and is not merely a piece of evidence required by the prosecution to fulfill the legal requirements. Instead, the victim becomes a true stakeholder in the outcome as the Judge listens to the victim, not as a witness to the events, but as a participant, whose life was irretrievably changed.

The role of the convicted accused is also transformed from the defensive position wherein a legal “wall” is built around the accused to protect but also to minimize intrusion. It is only at the sentencing hearing that the accused steps out of a caricature of an accused and becomes filled in with the life stories all too familiar in the criminal courts of childhood troubles, conditions of abuse, and social failures. No wonder, it is the sentencing arena to which the public can so readily relate and which brings home, literally, the real life angst of the criminal law. 

On that note, it was unsurprising that the class started our current events journey with the Baumgartner case from Edmonton in which twenty-two year old Travis Baumgartner became the first Canadian to be sentenced for consecutive parole ineligibility terms for multiple murders under amendments to the Criminal Code from 2011. Section 745.51 of the Criminal Code permits such a sentence may be imposed by the trial Judge. Note the permissive “may” as the trial Judge is not mandated to impose such a sentence. Indeed, the section also includes the factors to consider in making the decision such as the character of the accused, the nature of the offence, and the circumstances of the incident. If the sentencing arises from a jury trial, the Judge must also consider the jury’s recommendation on whether or not the parole ineligibility should be consecutive under s. 745.21.

Baumgartner, a security guard shot four of his colleagues as they took ATM monies from the busy University of Alberta student HUB Mall.  Three of the guards died and the fourth survived. Baumgartner, as part of a plea negotiation, entered a plea of guilty to one count of first degree murder under s.231(2), two counts of second degree murder, and one count of attempt murder. As indicated by Associate Chief Justice Rooke in his reasons "these assassinations and executions were carried out by a cold-blooded killer, all with the simple motive of robbery." In sentencing Baumgartner to the agreed upon total sentence of life imprisonment with no chance for parole for forty years, Justice Rooke found the offence was “some of the most horrendous crimes that anyone can imagine.” However, it was not a case for the maximum parole ineligibility of seventy-five years, as Baumgartner was not the worst offender, being a young man with no prior criminal record and in recognition of the guilty plea, which showed remorse for his actions.

These amendments to the Criminal Code, part of the tough on crime agenda of Harper’s government, did attract much controversy. Critics voiced concerns over the political motivation of the change, suggesting it was merely a “political stunt” done to assuage the public fear of crime without any hard evidence such a change would in fact change crime statistics. In a word, the changes appeared to be more about “retribution bordering on vengeance” as characterized by D’Arcy Depoe of the Criminal Trial Lawyers’ Association and less about the sentencing principles of rehabilitation and deterrence.

On the other hand, sentencing is a punishment and does have an aspect of retribution for retributions sake. Certainly, the public outrage over concurrent sentences for multiple murders is understandable on a gut-level whereby a murder of one is equated with the murder of many. The controversy over this and the other numerous sentencing changes to the Criminal Code, such as the mandatory minimum sentences, is far from over, hence my suggestion that the hot button criminal law issue for 2013-2014 will focus on sentencing and these new amendments.

The other case we considered in class, another robbery case, was closer to the academic home as we discussed the 18 month jail sentence imposed on the ex MRU President Meghan Melnyk. Unlike Baumgartner, there was no joint agreement on sentence. As an aside, it must be pointed out that a sentencing Judge is not bound by a joint submission on sentence. In any event, considering the maximum sentence for robbery is life imprisonment, the sentence, in the eyes of the class seemed light. However, considering the position of counsel on sentence: defence asked for a conditional sentence or in the alternative ninety days, while the Crown asked for four years imprisonment being the typical “starting point” for such offences, the 18 month sentence appears to be within the range.  The eyebrow raising part of the matter was Melnyk’s concept of community work. Prior to sentencing she appeared at local High Schools discussing her situation and her gambling problem. Judge Brown, in sentencing Melnyk observed that she was paid for each appearance. This will definitely not be case when Melnyk fulfills the other part of her sentence when she is released from prison - 240 hours of community service.

The final case discussed was a sentence appeal argued before the Court of Appeal for Alberta. The Crown appealed the sentence imposed on ex-Stampeder running back, Joffery Reynolds, who was convicted by former Assistant Chief Judge Stevenson (of the provincial court and is now supernumery or a relief judge) of assaulting (actual convictions were for assault causing bodily harm under s. 267, assault under s. 266, and being unlawfully in a dwelling house under s.349) his ex-girlfriend for which he received a ninety-day sentence to be served intermittedly on weekends and two years probation as well as an apology letter and a five thousand dollar donation. The Crown’s position on sentence at trial and at appeal was for a two to three year sentence, an odd range considering a two year sentence is served in a provincial reformatory and a three year sentence is served in the much harsher federal system.

At trial, the defence recommended a non-custodial, particularly as Reynold’s celebrity status caused a media flurry and a diminishment of his public status. The Crown on appeal pointed to the sentencing Judge’s failure to consider the domestic nature of the offence. In discussion, the class clearly agreed with the Crown on that note, believing their relationship to be something more than just “buddies” as submitted by the defence.

This decision will be interesting as it may tackle the difficulty in sentencing the celebrity and it may also clarify the meaning of “domestic assault.” As an aside, the provincial government recently brought forward legislation to end intermittent sentences, which were used to allviate the burden of imprisonment where an offender had gainful employment. This may not be an issue raised on appeal but I believe this will cause a clash in the courts when the jail refuses to fufill a Judge's order to do so. Keep posted on this issue as well.

The other cases I had but were not discussed I will repeat here but I will not elaborate on today. Another sentencing case – the Paxton dangerous offender application is ongoing before Justice Martin. The Court of Appeal also heard an appeal against the conviction of the young offender in the Cavanagh murder case, which involved a “Mr. Big investigation.” Finally, a little off the crime path but still in the public welfare arena is the concern over work-related deaths in Alberta and the need to tighten regulatory laws in the area. The province recently went to the administrative efficiency of ticketing offenders, both employees and employers, in real-time for real-time breaches. However, the call is for more prosecutions, better outcomes, and a more serious consideration of criminal code charges for work-related incidents.

These cases, in my view, also signal some Canadian criminal law trends as the use of dangerous offender applications increase, as the courts struggle with unique investigation techniques in a Charter world, and as the public demands more and better action in the regulatory field. Keep an eye on my future blogs as we trend through the year.

On a final note is a new upcoming addition to this blog as I enter the world of podcasting. I intend to offer a short podcast on sections of the Criminal Code.








What Is Life?: The Unanswered Question In The Supreme Court of Canada’s Levkovic Case

This blog posting is not about Erwin Schrodinger, the famous quantum physicist and winner of the Nobel Prize. Nor is it about his most famous thought-experiment, Schrodinger’s Cat, which illustrates how the quantum world works or doesn’t work, depending on whether the cat is dead or alive. Ah, “alive.” This posting is about what it means to be “alive” or, as our Criminal Code requires, “in a living state” and it just so happens Schrodinger did have something to say about life in his book entitled What Is Life?

First, let’s step back and set up the conundrum, as I see it, caused by the wording of the Criminal Code and the lack of clarification from the Supreme Court of Canada in the Levkovic case on the issue of life. Homicide under s. 222 of the Code is where a person, directly or indirectly, by any means, causes the death of a “human being.” However, it is only culpable homicide, as in murder, manslaughter or infanticide, which can form the basis of a homicide charge. Section 223 specifies when a child becomes a “human being” and therefore when a child can be the “victim” of a culpable homicide. Under that definition, a

child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.

Thus a child can be a victim of a culpable homicide at the very instance of the completion of the birthing process, when the child has fully exited the mother’s womb but with the caveat that the child must be “in a living state.” This phrase denotes life and suggests the child must be alive to be thus defined as a “human being.” However, the section continues and seems to broaden the definition by making the “living state” independent of breath, circulation, and the umbilicus connection to the mother. This too makes sense in the context of the first moments of birth, when a baby duly born transitions from embryonic fluid to air. It may take a newly born baby up to ten seconds to breathe and for the blood to circulate. In those crucial moments, according to the law, the child is a human being.

But how does this interpretation impact s. 243, an offence requiring the child to be dead? The section creates an offence where the child’s death is concealed even if the child died before or during birth. Clearly if the child dies before or during birth, the child would not be a “human being” in accordance with the definition of s.223, which finds a child is a human being where the child is completely out of the womb and in a living state. Even so, in the Supreme Court of Canada’s decision in Levkovic, Justice Fish, speaking on behalf of the Court, refers to this section to inform the meaning of s. 243 of the Criminal Code, the section creating an offence for concealing the dead body of a child. In order to determine if a newborn child was unlawfully killed, Justice Fish opined, homicide investigators would need to determine if the child would have likely to have been born alive as opposed to a stillbirth. Indeed, Justice Fish suggested

In order to facilitate the investigation of homicides, s. 243 must therefore apply to children that were either born alive or were likely to be born alive and thus capable of satisfying the Criminal Code definition of a human being in s. 223(1). (Emphasis added)

By applying the concepts of s.243 to the definitional section 223, the Supreme Court of Canada has turned life or being “in a living state” into the likelihood of life. To base a required element of an offence on “likelihood,” and to “read down” an interpretation section, which does not require such a reading to be applicable, seems to import the “vagueness,” which the SCC abhors. Instead of taking an opportunity to clarify the meaning of life in the context of death, the SCC choose to apply the catch-all likelihood test as found in the Mabior case and the Whatcott decision (see my previous blog for further discussion). What the Court fails to understand is that being alive is much different than being likely alive.

How does this connect to Schrodinger? Erwin Schrodinger’s 1944 What Is Life? book, based on a series of lectures, is part scientific, part philosophical treatise in which he applies quantum principles to biology in a search for an explanation of life. Many believe his book to be a precursor to the discovery of DNA. Life, in the Schrodinger world, is quantifiable and real as exemplified by genetic “code-script.” Although Schrodinger the quantum physicist would approve, Schrodinger the bio-theorist certainly would not.


The Result In Canada (Attorney General) v. Bedford

The much awaited decision from the Court of Appeal for Ontario in the Bedford case on the constitutionality of various prostitution related sections of the Criminal Code has finally been released.

The majority of the court agreed with Justice Himel's lower court decision that s. 210 common bawdy house and s. 212(1)(j) living off the avails of prostitution are unconstitutional as being contrary to the principles of fundamental justice under s. 7 of the Charter.

In the matter of keeping a common bawdy house, the Court struck down the section but suspended the invalidity of the section for 12 months to give Parliament an opportunity to redraft the section in a Charter friendly manner.

The offence of living off the avails of prostitution under s. 212(1)(j) is unconstitutional in the limited circumstances of where the relationship between the prostitute and those living off the avails is not exploitive. For example, where a prostitute supports his or her family with the earnings of prostitution, the family would not be exploiting the prostitute and should not be charged under this section. This exemption would not preclude "pimps," who put prostitutes on the streets for their own economic benefit would still be subject to this subsection. 

Where the court did not agree with Justice Himel was on the issue of the constitutionality of s.213 communication for the purpose of prostitution. The court upheld this section on the basis of a previous decision from the Supreme Court of Canada (SCC) on the same issue. In that previous 1990 case, Reference re ss. 193 and 195.1(1) (c) of the Criminal Code, the Government of Manitoba referred the then new and untested communication sections to the SCC to determine if the sections would withstand a possible Charter challenge. For further discussion of references to the SCC, please read my previous posting here. The SCC found section 195.1(1)(c), the same section at issue in Bedford but numbered as s. 213(1)(c), to be contrary to fundamental freedom of expression under s. 2(b) of the Charter but saved under s. 1 of the Charter as a reasonable limit in a free and democratic society. I have discussed s.1 in relation to freedom of expression in some previous postings and most particularly here and here.

The decision is of interest in terms of the findings of the Court on the s.7 issue. However, the decision also makes some important comments on the principle of precedent and the restrictions on a Court when revisiting a decision, which has already been a subject of consideration by a higher level Court. This fascinating discussion, which I suggest impacted the decision in Bedford and provides guidelines for future cases, will be the subject of my next post. 


Don't Pre-Judge! Jury Vetting and the Supreme Court of Canada

Next Wednesday and Thursday, the Supreme Court of Canada will be hearing the appeals of Tung Chi Duong, Vinicio Cardoso, and Ibrahim Yumnu, which raise the issue of jury vetting: a process where the prosecution does a pre-court check of potential jurors. The three Ontario co-accused were convicted of first-degree murder and conspiracy to commit murder involving a contract killing. The Crown’s office, upon receipt of the jury panel lists containing the names of potential jurors, requested police enforcement authorities to do criminal record checks of the listed individuals and to make any comments “concerning any disreputable persons we would not want as a juror.” The Crown did not disclose the information received through this pre-vetting process to the defence, although there was some evidence trial counsel was aware of this practice. The information was used by the trial Crown in selecting the jury for the trial.

In terms of the legislative authority to perform such a check, neither the Criminal Code rules relating to the jury selection process in court nor the pre-trial rules found in the provincial Juries Act, as enacted at the time of the trial, permitted the procedure. It should be noted that the Ontario Juries Act has since been amended, under s.18.2, to provide a procedure for police to pre-check a potential juror for the presence or absence of a criminal record. Such a check is required under s. 4(b) to determine if a potential juror is ineligible to serve as a juror due to a prior conviction for “an offence that may be prosecuted on indictment.” The phrase “may be prosecuted on indictment” refers to the mode of trying the accused’s case in the criminal courts.  An indictable offence is considered to be a more serious crime and carries a higher penalty than a less serious summary conviction offence. Certain indictable offences give the accused the right to have the trial in the Superior Court as opposed to Provincial Court. Some indictable offences, such as murder, also give the accused the right to a jury trial.

Generally, pre-vetting of jurors is not an acceptable practice in Canada. Such a pre-trial process is contrary to the fundamental principles of justice, which require the offender to be tried before an independent and impartial jury. Since the advent of the Charter, this fundamental principle has been constitutionally protected under s. 11 (d) and is inexorably bound up with another core criminal law principle: the presumption of innocence. I have written at length on the historical significance of the presumption in earlier postings. More generally, this procedural right to a fair trial is also protected under section 7 of the Charter as the principle lies at the very heart of the administration of justice.

The issue is one of impartiality under the Charter. Section 11(d) protects an offender’s right to a fair trial before an independent and impartial jury. Permitting pre-vetting of jurors has the potential effect of selecting biased juries, which are neither independent nor impartial, but based on selected criterion. The resultant effect is a pre-packaged or pre-determined jury, which would therefore favour the party using the pre-selection process. In other words such a jury would “pre-judge” the issues.

Even the potential for bias is contrary to our concept of trial fairness. As discussed by Justice Cory in the Bain case, apprehension of jury bias is to be avoided as the mere appearance of impartiality would be contrary to Charter principles. Although the concept holds the administration of justice to a high standard of impartiality, the apprehension of bias must be reasonably held. Thus, the question to be determined on the issue of bias is as follows: would reasonable and right-minded persons find there a reasonable apprehension of bias in the circumstances.

This question brings us back to the Duong, Cardoso, and Yumnu case. On appeal to the Court of Appeal for Ontario, appellate counsel did not refer to the arguments as outlined above but focused instead upon the Crown’s lack of disclosure of the vetting process. In the appellant’s view, this lack or delay of disclosure compromised the defence’s ability to make full answer and defence under s. 7 of the Charter. This position was easily dismissed by Justice Watt, speaking on behalf of the Court, as there was no evidence of any actual or perceived unfairness of the selection of the jury based on this non-disclosure. Unfortunately it appears the defence will be making the same arguments before the Supreme Court of Canada as revealed by a perusal of the appellant Yumnu’s factum.

However, a large number of Intervenors have filed material and will be making submissions on the issue such as the Criminal Lawyers’ Association, the Ontario Crown Attorneys’ Association, David Asper Centre for Constitutional Rights, Information and Privacy Commissioner of Ontario, Canadian Civil Liberties Association, and the British Columbia Civil Liberties Association. It remains to be seen what arguments will be finally presented on this issue and it will be of great interest to see how the Supreme Court of Canada ultimately deals with the issue of pre-vetting a jury.

In the next posting, I will continue the discussion through the international perspective on the efficacy and issues surrounding jury vetting.

Reading The Riot Act

Riots or violent disturbances of the peace are part of the human psyche. As early as 44 B.C., when the Roman mobs attacked the houses of Brutus and Cassius in an angry response to the untimely death of Julius Caesar on the Ides of March, the world has since experienced riots in every era. Riots occur for a multitude of reasons: from student protest as in the 1229 University of Paris students’ strike to revolution as in the Boston Tea Party of 1773 and from the various race riots in the United States throughout the 1900’s to the obscure reason of advant-garde music, when in 1913 the audience in the Paris Théâtre des Champs-Élysées listening to the debut of Stravinsky’s Rite of Spring ballet broke out in a violent booing frenzy. There have been riots over various alcoholic beverages as in the London Gin Riots of 1743 or the Beer Riots in Bavaria in 1844 or then only ten years later, the Portland Rum Riot. Sadly, I missed the Champagne Riot in 1911 France. However, increasingly, riots are not about protest but about a lack of sportsmanship or too much sportsmanship as in the case of the recent hockey related riots in Canada.

The Stanley Cup Riots, and I use the plural as there has been more than one (two in Vancouver, five in Montreal, one in Edmonton during playoffs), have been particularly egregious, costing the municipalities millions of dollars in damaged property and even millions more in prosecuting and punishing the participants. The Nika Riot of AD 532 might have been the first sports related riot, happening in the Hippodrome at Constantinople, then the centre of the remaining Roman Empire in the East. The two factions, Blue and Green, were supporting their chosen chariot race teams when both sides demanded the city release Blue and Green prisoners, who had been arrested, earlier, for disturbing the peace. In a moment, this sporting event became political and over the next few days a not unfamiliar scene played out as the Emperor Justinian first apologized and, when the mob was still not pacified, then slaughtered thirty thousand Blue and Greens in the Hippodrome. Ironically, it was Justinian who codified all Imperial laws into the Codex. See my previous posting on the codification of our criminal laws into the Criminal Code.

Although we no longer “read the riot act,” as they no doubt did in 18th Century England when the Riot Act was first enacted, our criminal law does prohibit “unlawful assemblies and riots” under the Criminal Code. The 1715 Riot Act gave a Justice of the Peace or another person so authorized to disperse “groups of twelve people or more being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace” upon proclaiming:

Our sovereign Lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.

If the crowd did not disperse within an hour of this proclamation, the authorities had the right to “seize and apprehend” the rabble-rousers who would be subject to the death penalty.

Although the Riot Act was finally repealed in 1973, the Canadian offences of unlawful assembly and riot, under sections 63 and 64 of the Criminal Code respectively, are a distant reminder of the original crime. Instead of twelve people “unlawfully, riotously, and tumultuously” assembled, the Canadian counterpart, unlawful assembly under s. 63, requires three or more persons “with intent to carry out any common purpose” who:

cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Similarly, section 64, defines the offence of riot as an unlawful assembly, presumably as per s.63, “that has begun to disturb the peace tumultuously.” Therefore, an unlawful assembly is about to become a riot, although not quite there, while a riot is exactly that: a full-blown tumultuous affair.

The defining term for these offences, in both the Criminal Code offence and the 1715 original crime, is the word “tumultuously.” To understand the meaning of this word, which is not defined in the Criminal Code, case law is needed. In the Berntt case, arising from the first Vancouver Stanley Cup Riot in 1994, at issue was the clarity of the meaning of the word “tumultuously” as found in s.64.

Defence argued the term was vague and therefore did not provide a clear understanding of the essential requirements of the crime. Without such clarity, defence argued, the accused’s ability to make full answer and defence was compromised. To try an individual on the basis of a vague law and, therefore, to potentially deprive the individual of his or her liberty if convicted would be contrary to the principles of fundamental justice under s.7 of the Charter.

The British Columbia Court of Appeal, in deciding the issue, referred to the 1992 Supreme Court of Canada decision in R. v. Nova Scotia Pharmaceutical Society and Justice Gonthier’s comments on the importance of limits, provided by clear language, which delineate our laws and permit legal debate. However, language provides boundaries only and are mere guidelines as stated by Justice Gonthier in the following passage:

Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic.  Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.  Guidance, not direction, of conduct is a more realistic objective. 

With guidelines comes context and in the end, the court found the word “tumultuously” must be read in conjunction with the other words used in the offence such as “riot” and “unlawful assembly,” which connotes a violent disturbance as opposed to an uproarious, perhaps even jubilant, crowd. History also imbued the term with particular meaning as the crimes, through their very definition, related back to old England and the Riot Act.

Thus, as they say, what goes around comes around and what was once a crime is still a crime. Interestingly, the discussion of boundaries and limits is exactly what the crimes of unlawful assembly and riot are all about: it is the lack of boundaries and limits that marks the behaviour as crimes as opposed to a Canada Day event on Parliament Hill where the crowd gathers in celebration and bon ami.

Sadly, as a coda to this posting, Ryan Berntt, the accused in question, was shot in the head by a police officer’s rubber bullet during the riot and sustained brain damage. In the end, it is individuals, both in the crowd and out of the crowd, who suffer the most. It is the individuals, not the crowd, who stand charged or must face the inevitable morning-after clean up. Perhaps this sobering reality is worth remembering. 

The Criminal Code of Canada: Codification and Reform

Whenever we read of a sensational arrest in the paper or we follow the latest celebrity trial, we are invoking the criminal law. Most of us, lawyers and lay people included, know the criminal law is found generally in the Criminal Code (drug offences are also federally created but are found in the Controlled Drugs and Substances Act and not in the Criminal Code). Lawyers are taught in first year Constitutional Law why the criminal law is created by Parliament: due to the Division of Powers between Provincial Legislatures and Parliament as found in the Constitution Act, 1867, which gives the Federal government exclusive authority to create criminal law.  But many of us do not know why this power resulted in a codified criminal law as opposed to the hodge-podge of criminal statutes as found in the United Kingdom.

Although the first Criminal Code was not adopted until 1892, it was conceived much earlier by our first Prime Minister, John A. MacDonald, who envisioned a codified criminal law as an important element of Confederation. Codification seemed to be on the mother country’s mind as well in 1878 as a codification of British criminal law, Bill 178, written by Sir James Fitzjames Stephen, received Second Reading in the House of Commons but died on the order paper. So too, other Commonwealth nations, such as India, Jamaica, Australia, and New Zealand, flirted with, or in some cases enacted, codified criminal laws.

Even a subsequent Royal Commission could not resuscitate the UK version of the Code. Canada, not being near as critical of the draft English Code, imported many aspects of the draft into the first Criminal Code in 1892. The rest, as they say is history as the Code has maintained its status since, albeit with amendments and renumbering along the way.

Let’s trace the crime of theft as an example. Prior to the enactment of the Criminal Code in 1892, theft was defined through British statute and common law. Indeed, the first consolidation of crimes, which occurred in 1869, included the crime of larceny: the old common law offence of theft. Presently, theft is particularized in our Criminal Code under s.322 as follows:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent 

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or 

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Historically, there were numerous statutes in England, which pertained to specific forms of theft such as embezzlement, animal theft, shoplifting, pickpocketing, housebreaking, and the like. Presently in England, although a general definition of theft can be found in the Theft Act, 1968, one would have to also look at other statutes for the specific form of theft involved. For example, the basic definition of theft in the Theft Act, 1968 states:

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

However, one would have to look at the Theft (Amendment) Act, 1996 for the crime of “dishonestly retaining wrongful credit.” The Canadian equivalent, of course, is theft and can be easily found under s.322.

Over the years there have been calls to reform the Code to simplify many of the complex and convoluted sections but to no avail: today’s Criminal Code reads much the same as it has for the past fifty years. Much of the difficulty stems from the amendments to the Code, which adds onto existing sections an ever-increasing number of subsections instead of making new sections by re-numbering and re-structuring the Code. For more on this, read my previous blog on lists where I outline the 33 sections found between the search warrant section under s. 487 and the execution of the search warrant found at s.488.  

Clearly, there is still work to do. In 2012, when the Code celebrates its 120th anniversary, the Federal government should take up the call to reform in order to provide Canadians with a cogent and relevant Criminal Code, which will promote the principles of justice and be a model for developing democracies.   


Why Is This Still A Crime? Crime Comics and the Criminal Code

Today, in my criminal law class, we discussed what is a “crime.” We defined “crime” as any form of human behaviour designated by lawmakers as criminal and subject to penal sanctions.” This definition of crime is both narrow and broad: broad as any form of behaviour can be considered a crime, yet narrow as it is only those behaviours so designated by the law makers, which are considered crimes.

Let’s look at that premise more closely. Any behaviour, so designated, can be a crime. For example, opium was legal until the turn of the century when the 1908 Opium Act was enacted. On the other hand, coffee is legally consumed in Canada but was historically subject to bans and restrictions in many countries such as Turkey and pre-Revolutionary France.

Furthermore, no matter how morally repugnant certain behaviour may be, the conduct is only criminal if so designated. In other words, it is not a crime unless our government says so. Clearly then, criminal law is fluid: it changes over time in accordance with  society’s fundamental values.

And yet, there are crimes still found in our Criminal Code, which do not resonate with today’s values and leave us to wonder why the behaviour is still designated as criminal. Section 163(1)(b), which makes it illegal for anyone to make, print, publish, distribute, or sell a “crime comic,” is a case in point.

A crime comic, as defined under s.163(7), is a “magazine, periodical, or book that exclusively or substantially comprises matter depicting pictorially” the commission of crimes, either real or fictitious, or any events leading to the commission of a real or fictitious crime. Thus a crime comic, deemed illegal under the Criminal Code, can easily be that super hero comic book purchased at the corner store or that cool graphic novel on Louis Riel.

Where did this crime come from? In this instance, we can blame the United States. In the 1940s a genre of comic books known as “crime comics” appeared. In truth, some of the comics were in “bad taste” depicting gory scenes of violence, however, the bulk of the comics were inevitably the triumph of good over evil. Either way, the books did not, as suggested by the Senate Subcommittee on Juvenile Delinquency, promote or contribute to the commission of crimes by juveniles.

In fact, despite the very public contention of American psychologist Dr. Fredric Wertham that the crime comic books were connected to the increase in juvenile crimes, there was no scientific basis for this position. Unfortunately, by the time the true facts were exposed, the issue had become so political the government was moved to regulate the comic book industry. In Canada, the result was even more significant as the Criminal Code was amended in 1949 to add crime comics as an offence “tending to corrupt morals.”

In the 1950s, the offence was tested by a group of comic book vendors in Manitoba. Mr. Roher, the chosen offender, was convicted of selling a crime comic, specifically “No. 62, April, Dick Tracy.” The cover of the comic book is particularly gruesome as it depicts Dick Tracy floating in the water, near death, while a once masked villain shoots at him. Definitely a crime is being committed but we all know, Dick Tracy, the crime fighter will prevail. He even says so in the corner of the cover as he studies his radio watch, which cries out: "calling all crime stoppers." This fact, however, was meaningless in the eyes of the law as Mr. Roher was convicted of selling this crime comic.

In upholding the conviction in 1953, Chief Justice McPherson describes, in detail, the “bloodthirsty” events illustrated in the comic. According to McPherson C. J., “the legislature wished to enact laws to protect the children of this country from the evil effects of being subjected to publications dealing with crime.”

The Chief Justice also considered the defence available under the section, which is still preserved in the present day offence, known as the defence of the “public good” whereby:

No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

In dismissing comics as serving the public good, the Chief Justice commented on the defence as follows:

The only defence under this section I have ever heard suggested is that by reading these publications the child acquires a desire to read. To me it is a strange basis upon which to start child education and, logically considered, could be quite easily adapted to other phases of training; for instance, by starting children on "home-brew" they might become connoisseurs of fine liquors and whisky and eventually experiment with a drink of milk!

Clearly, the Chief Justice was not a fan of the funnies! Or was he really just a man of his times, immersed in the hysteria of the moment and in tune with the public fear caused by the increase in juvenile crimes? This may explain why the conviction was upheld and why the crime found its way into the Criminal Code, but it does not explain why this crime is still part of our criminal law.

Perhaps we could imagine an inappropriate comic, aimed at children, which we would not want published and sold but do we need the criminal law to regulate that scenario? Furthermore, as the section now reads, appropriate material could be subject to the offence, despite the defence of public good, such as the graphic novel by Chester Brown on Louis Riel or the Fantastic Four.

So, why this is still a crime is a valid question to ask and a valid question to keep asking as society changes and our laws do not. By questioning and asking “why,” we are ensuring that our laws reflect who we are as a society and if they do not, then it is incumbent upon our law makers to provide an acceptable answer.