Episode 57: Section 71 Duelling is Gone But Section 70 Unlawful Drilling Remains (text version - see Podcast page for audio)

Episode 57 of the Ideablawg Podcasts on the Criminal Codeof Canada recommences after a lengthy absence. Since the last podcast, the Criminal Codeworld has changed. Significant amendments to the Code have deleted many sections and added others. Some more changes are yet to come but this Podcast is not about the future but about the now. What we “now” have may be a different Codefrom the initial one in 1892 but the similarities remain. Although a primary objective of the Code amendments was to clean up our criminal law by discarding some long unused sections, such as dueling under s. 71, there are still sections, which are candidates for removal. 

For instance, in this Podcast, the next section to be dissected and discussed is section 70 entitled “Unlawful Drilling.” Before you assume this must reference oil and gas implements, I must ask you to not reference what is presently in the news but to focus on the actual wording of the Coderequirements. Drill, in section 70, is all about unnecessary, unwarranted and unasked for military preening, parading and practicing. This offence may sound unnecessary, unwarranted and unasked for in the modern Canadian context, but it is an issue in other countries. For instance, in China, the dancing or parading of retirees, mainly women, early in the morning and late at night is a significant social and legal issue. For these women, marching or dancing or exercising, depending on your perspective, down the streets to traditional music and in military regalia including imitation rifles is a pleasure they have earned through their commitment to their country. Nevertheless, the parading, for whatever reason, is deemed a public nuisance by those of the sleep-deprived younger generation. Law makers have stepped in to the fray by imposing stiff fines for infractions despite the health and reputational benefits. 

Section 70 is not an all-out ban of these activities. It permits the Governor General to proclaim such a ban as a form of crowd control akin to an unlawful assembly. An offence is an indictable one attracting a maximum of 5 years less a day, presumably to ensure such an offence is treated seriously but not so seriously that a jury trial is available. 

The section reads as follows:

70 (1) The Governor in Council may, by proclamation, make orders

(a) to prohibit assemblies, without lawful authority, of persons for the purpose

(i) of training or drilling themselves,

(ii) of being trained or drilled to the use of arms, or

(iii) of practising military exercises; or

(b) to prohibit persons when assembled for any purpose from training or drilling themselves or from being trained or drilled.

(2) An order that is made under subsection (1) may be general or may be made applicable to particular places, districts or assemblies to be specified in the order.

 (3) Every one who contravenes an order made under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 I do recommend you review the previous Podcast, Episode 56, on unlawful assemblies to give this section context.

As mentioned, I do wonder why this section was not excised from the Code. Indeed, the section appears have been amended in 1992 albeit for the minimal purpose of ensuring the French version was consistent with the English one. There is no case law on the section. In terms of other legislative references, s. 14 (b) of the Federal Visiting Forces Act, exempts such visiting force from the possible ban under the section. The National Defence Act does not have a similar prohibition but does reference the Governor General’s authority to create regulations and orders relating to military drills and exercises. In terms of national security, such a prohibition is probably justified considering the potential danger of unsanctioned military exercises. 

In any event, this is definitely a section which could have been removed. As I pointed out in an earlier blog posting, You Missed A Spot! Amendments to the Reverse Onus Sections of the Code, the government in making changes to the Codecould have benefited from an extra pair of eyes to ensure nothing was left off the editing table. Perhaps this section will not go unnoticed in the next round of changes.

Next Podcast episode is on my favourite sections (now that duelling is gone), 72 and 73, on forcible entry and detainer!

 

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.