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.

 

The “Science” Behind R v Tatton

Increasingly, the legal world and the empirical world intersect both in the approach lawyers take to present cases in court and in the decisions rendered by the courts. Statistics, studies and academic articles are used to connect the evidence to the issue at hand. Truly court cases have become “evidence-based” in the full meaning of the phrase as expert evidence elucidates the trier of fact on a particular material issue. This involves the calling of evidence and also the reliance on research done in the fields of science and social science.

This intermingling of fact and scientific fact has become even more important since the 1990’s when the Supreme Court of Canada relied upon social science research in determining whether or not a Charter breach can be saved under s. 1. Thus, the government, in order to sustain an argument that the legislative restriction is demonstrably justified in a free and democratic society, does so on the basis of academic research exploring the connection between the legislative policy and the real effects of such policy on individuals and institutions. For example, in the 1991 Seaboyer;Gayme case, concerning the constitutionality of the “rape shield” provisions of the Criminal Code, the SCC reviewed material outside of legal jurisprudence such as statistical and research-based reports and academic articles written by psychologists and criminologists. Indeed many of the SCC cases relating to child witnesses routinely refer to this extra-legal material as for example in R. v. F. (W.J.), [1999] 3 SCR 569 and R. v. L. (D.O.), [1993] 4 SCR 419.

The difficulty with relying on social science research is that such research can change over time. What is accepted can be undermined by further study. This occurred in the above-mentioned L.(D.O.) case where in the reasons of Madame Justice L’Heureux-Dube on the issue of the constitutionality of s. 715.1, which permitted the admission of a child’s videotaped statement, she referred to “child abuse accommodation syndrome.” Subsequently, the syndrome came under intense scrutiny and is no longer accepted as persuasive. Indeed, one study labeled the syndrome an example of “junk science.” Although, the reliance on science was not critical to the legal outcome, a Court relying on such information may find what seemed persuasive is no longer valid and the legal decision can no longer stand.

On the other side of the spectrum, it is most troubling when the Court pronounces on legal principles, which partly lie in the realm of public policy and therefore has a connection to experiential or empirical knowledge and yet does not support the decision with tested facts. In the recent Supreme Court of Canada Tatton case, Mr. Justice Moldaver, speaking for the Court, upheld a time honoured legal distinction between specific and general intent offences as it related to the applicability of self-induced intoxication. Liberally sprinkled throughout the decision is reference to the inextricable connection between intoxication and crime. Even the specific/general intent distinction is imbued with an analysis of the mental engagement of an individual. Despite this heavy reliance on what appears to be scientific truths, at no time did the Court refer to or support the position with scientific study or research. To be sure, the court referred often to the Daviault case, which did reference a number of governmental reports and studies on alcohol and crime. However, the Daviault case was rendered in 1994, twenty-one years ago, with the studies coming from the mid to late 1980s.

Surely, more recent evidence should have been used considering the decision finally determined the limited application of a legal defence. Since the 1980s there have been numerous studies (here, here, here, and here) done on intoxication and crime, some of which do show a high number of crimes committed while the offender was intoxicated. However, there are also studies, which cannot definitively connect intoxication as the reason for an offender committing crimes. So although 40% of crimes are committed while the offender is under the influence of some sort of intoxicant, this does not mean that these crimes would not have been committed without them. To make this connection, there is research concerning the effects of alcohol as a disinhibitor that impacts a person’s thought processes to such an extent that they perform acts they would not have otherwise performed. Further research on thought processes suggest that decision making is complex and highly individualized. Therefore, the additional ingredient of alcohol can have a profound impact on the mental reasoning or lack thereof of a person who acts contrary to the law while intoxicated. For some of these studies, go here, here, here, and here. What can be learned from these various studies are that the issue is has not been empirically determined and the relationship between alcohol, mental processes, and crime is highly complicated and variable.

What are the implications of this on the Tatton case? As mentioned earlier, the case’s import is twofold as it propounds on the general distinction between specific and general intent and then specifically relates these differences to the defence of intoxication. On both issues, I submit that Mr. Justice Moldaver relied upon the court’s perception of the “science” behind these legal principles in reiterating a long held position that intoxication is not a defence to a general intent offence without referencing any recent empirical studies but instead merely citing the twenty-one year old Daviault case. By proceeding on this basis, the Court missed the opportunity to provide some rational basis for the general/specific distinction. Instead, the Court has simply perpetuated a legal fiction as opposed to a scientific one.

 

 

 

 

 

 

 

Section 33.1 & How Intoxication Became A Form of Mens Rea: Episode 38 of the Ideablawg Podcasts on the Criminal Code of Canada – A Long Read (Or Listen)

In this episode we will explore the “defence” of intoxication and how this common law concept became a form of statutory mens rea in s. 33.1 of the Criminal Code.

Intoxication, as a defence, is a difficult concept involving a clash of perspectives. One perspective finds fault with the defence as it absolves a morally blameworthy accused who, in committing an offence, willingly places himself in an uncontrollable state. The other perspective aligns with traditional criminal law precepts by permitting the defence on the basis that only those accused who have the required fault element of the crime should be punished. Both perspectives have informed this defence through legal interpretation and legislative response. In the end, intoxication as a defence is cumbersome, artificial, and in many respects unsatisfactory. The law and legislature has simply been unable to reconcile these differing, yet valid, perspectives and the defence remains a legal anomaly.   

It is in this background, we must view the present iteration of the defence as found partly in s. 33.1 of the Criminal Code. I say “partly” as the judicial interpretation of the defence still applies in some respects. Indeed, we can for ease of discussion refer to s. 33.1 as representing the first perspective I previously outlined - the concept of moral blameworthiness. Conversely, the judicial perspective, as ultimately represented in the Daviault case through the application of the Charter, represents the traditional criminal law principle of ensuring those without criminal intent, the morally innocent, are not punished.

Historically, these two perspectives on intoxication were not separated and the courts fashioned an awkward alliance between these two visions of responsibility:  the morally responsible accused who choses to become intoxicated and the morally innocent accused who was acting without mens rea and therefore not criminally responsible. To fulfill these two visions the common law limited the defence to certain types of offences. The case, which reflects this common law principle, is the 1920 House of Lords decision in DPP v Beard. The principle in Beard’s Case, as it became to be known, holds that intoxication is not a defence to a general intent offence but is a defence to a specific intent offence.

To understand this split, let’s review the difference between general and specific intent offences: Crimes of specific intent are offences with a special mental element required above and beyond the general mental element of the offence. Thus, a crime such as theft, which requires the taking of something with the intent to steal, is a specific intent offence. So too is murder with the specific intent to kill. Conversely, general intent offences involve no ulterior goal and only require an intention to act to achieve an immediate goal. Assault is an example of a general intent offence. Applying the principle in Beard’s Case, intoxication is a defence for a murder charge but not for an assault. Although the Supreme Court of Canada consistently disapproves of this specific/general distinction as artificial and confusing, it still remains an integral part of the intoxication nomenclature.

In the 1977 Leary decision, the SCC considered the Canadian position on intoxication creating a rule similar to Beard’s Case. This rule was reconsidered after the advent of the Charter in the 1988 Bernard decision. Bernard produced a fractured court with three separate concurring decisions and a strong dissent from the then Chief Justice Dickson and Justice Lamer, who also dissented in Leary.

Justice McIntyre’s majority decision upholds the Leary rule that intoxication is not a defence to a general intent offence. Both Leary and Bernard involved the general intent offences of rape and sexual assault, respectively. There were strong public policy reasons for eliminating intoxication as a defence to sexual offences. Even so, Justice McIntyre conceded that intoxication might apply to specific intent offences as in those circumstances intoxication could negate the formation of the specific intent required. This was also a “safe” position to hold as typically a specific intent offence involved proof of an underlying general intent offence. Therefore an acquittal for a specific intent offence on the basis of intoxication still permitted a conviction on the lesser and included general intent offence. An acquittal for murder, for instance, could result in a finding of guilt for manslaughter. The “morally” responsible accused would still be convicted.

In terms of the Charter, Justice McIntyre found sections 7 and 11(d) were not violated by the Leary rule, as the morally innocent would not be convicted on the basis that the voluntary consumption of an intoxicant would be criminally blameworthy. Further, the Crown must still prove mens rea, which could be inferred from the prohibited act by assuming a person intends the natural and probable consequences of his or her actions. If, however, voluntariness was an issue, meaning the accused was so intoxicated that his actions were not voluntary and therefore the so called “willing mind” aspect of the actus reus could not be proved, then the Crown could prove the acts were of a willing mind based on the proof of the accused self-induced intoxication.  

Justice McIntyre’s decision is difficult to reconcile. Proving mens rea on the incongruous premise that an intoxicated person intends the natural and probable consequences of their actions is debatable.  Although, as an aside, this concept has enjoyed recent SCC approval in the Walle case. See my blog on that case here.  Further, Justice McIntyre’s response to the voluntariness issue is a tautology: by filling in the proverbial fault “hole” with proof of intoxication, intoxication is no longer a “defence” or even a state of mind but is evidence of the state of mind, which is the key element of the an offence.

Justice Wilson, concurring in Bernard, offers a more “flexible” approach to the Leary rule permitting evidence of extreme intoxication “involving an absence of awareness akin to a state of insanity or automatism” to be left with the trier of fact in general intent offences. On the issue of mens rea, Justice Wilson does not approve of the substitution of self-induced intoxication for proof of the mental element component. In her view, the Crown is still required, even in general intent offences, to prove the minimal intent needed for conviction.

In the dissent, Chief Justice Dickson and Justice Lamer found the Leary rule violated the Charter and could not be saved under s.1. The rule, according to the minority, imposed a form of absolute liability, requiring no proof of mens rea for those general intent offences where intoxication could negate the mental element of the offence. They also firmly disapproved of the “artificial” distinction between specific and general offences. Intoxication, in their view, was relevant to mens rea and should be left to the “fair and responsible” trier of fact, who was able to sift through the evidence and determine if in fact intoxication was to such an extent that mens rea was absent.

Unsurprisingly, the Bernard decision attracted many critics, particularly Justice McIntyre’s position that self induced intoxication could substitute for the mental element of an offence.  There was the concern that the legally innocent, those accused whose level of intoxication was sufficient to raise a reasonable doubt on the mental element, were being convicted as a result of the Leary rule. Other commonwealth countries, such as Australia in the O’Connor case and New Zealand in the Kamipeli case, which previously supported the rule in Beard’s case, ultimately resiled from that ruling.  Eventually, Britain too modified the Beard’s Case ruling. Critics also lambasted the specific/general distinction as irrelevant and, as suggested by the dissent in Bernard, creating artificial barriers to valid defences.

In this climate, the SCC heard the Daviault case in 1994, also a sexual assault conviction, where the issue concerned the application of extreme intoxication as a defence to a general intent offence as considered by Justice Wilson in her decision in Bernard.  This time, the majority of the court found the Leary rule unconstitutional and agreed with Justice Wilson’s approach in Bernard that extreme intoxication was a defence to a general intent offence. In order to raise this defence, the accused, similar to a s.16 or automatism defence, must prove the defence on a balance of probability and is required to produce expert evidence in support.  The majority disagreed with Justice McIntyre that self-induced intoxication could provide the mens rea for the offence. The dissent, written by Justice Sopinka, found that the Leary rule was based on sound public policy reasons even though the specific and general intention distinction could lead to “illogical” results. The majority allowed the appeal and remitted the case for a new trial wherein the defence of intoxication could be raised.

The response to Daviault was swift. The government quickly legislated a response to the case and within a year a new amendment to the Code under s. 33.1 received Royal Assent.  Section 33.1, as suggested by the summary preceding the text of the Bill, amended the Criminal Codeby legislating a basis of criminal fault in relation to extreme self-induced intoxication and violence.”

The section, entitled “ self-induced intoxication,” reads as follows:

(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

Criminal fault by reason of intoxication

 (2) For the purposes of this section, a person departs markedly from the standard of reasonable care       generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

  Application

 (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

The section is a difficult read.  Subsection 1, which confusingly refers to (2) and (3), essentially eliminates the Daviault exception to the Leary rule by legislating that extreme intoxication is not a defence for general intent offences, which interfere with or threaten to interfere with the ”bodily integrity” of another person.  The concept of interference with “bodily integrity” is broad and includes, as per the SCC Tessling case, the right not to be touched.

However, the subsection also substitutes the self-induced intoxication for the mens rea of the offence. In subsection 1, this substitution arises from the connection between the elimination of the defence and the accused’s conduct as “departed markedly from the standard of care as described in (2).”  Subsection (2), entitled Criminal fault by reason of intoxication, describes a marked departure from the norm, typical language used to explain criminal negligence from the SCC Tutton case, as occurring when the accused commits the offence “while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily.” Therefore, the deficient state of the accused, both physically and mentally, fulfills the mental requirement of a criminal act. Needless to say, this artificial mens rea is contrary to traditional criminal law precepts and in violation of the Charter as articulated by Chief Justice Dickson and Justice Lamer in the Leary and Bernard dissents and as found by the majority in Daviault.

Even so, the legacy of Daviault still has precedential value. The courts never overruled the decision and s. 33.1 has not eliminated the defence for those general intent offences which do not involve the interference with the bodily integrity of another person nor has it eliminated the defence for specific intent offences. The 2007 SCC Daley case nicely outlines the application of the defence of intoxication in light of this.  Further, some courts in Ontario, such as in R v Cedeno, have found s. 33.1 unconstitutional, although oddly enough the constitutionality of the section has not be considered by appellate level courts.  The closest an appellate court has come to discussing the constitutionality of the section is in the 2001 North West Territories Court of Appeal case in R v Brenton where the court reversed a lower court decision finding the section unconstitutional on the basis that the lower court did not have a sufficient “factual foundation at trial upon which to mount a constitutional challenge to s. 33.1. In our respectful view, this was not a proper case in which to engage this important constitutional issue.”

There is a pressing need for the higher level courts to pronounce on this issue. Certainly, there is societal repugnance for the defence particularly where the crime committed involves sexual assault. However, there is now societal recognition that alcoholism and drug addiction can be a disease and may leave the affected person helpless to control their substance abuse problem. The concept of “self-induced” intoxication is brought into question in those situations and the subsequent warehousing of these offenders becomes part of the problem instead of the solution. There is, of course, still the doctrinal concern that the law, by not taking into account intoxication, is creating an artificial mental state where the accused does not actually have the blameworthy intent and yet is punished as if he or she did. In a very real sense, therefore, we are punishing the intoxication rather than the crime.

 

Not To Make Excuses, But - The (Un)Responsiveness of the Supreme Court of Canada To Duress

The new Supreme Court of Canada decision on duress highlights the limitations of our English common law system. In that system, an articulated defence cannot be found for Nicole Ryan who, as a result of years of abuse and threats, acted contrary to the law because she could not act in any other way. Although ultimately the result was a veiled recognition of this, the manner in which the SCC came to the result was a clear and unequivocal endorsement of the rule of law.

There are many reasons for not broadening the restrictive application of excuses in our criminal law. One reason involves the dynamics of excuses: such a defence is predicated on the commission of a crime, where both the unlawful act, or actus reus, and the criminal intention, or the mens rea, has been proven beyond a reasonable doubt. In a world without excuses, a completed offence labels the alleged accused as a convicted offender with all of the responsibility and accountability that goes with such a designation. The next step involves the manner of the State's response to such abhorrent behaviour. The next step is punishment and the meting out of sentence, crafted in bespoke fashion to fit the particular circumstances of the case and the specific background of the offender. In the sentencing forum, discretion and compassion is allowed. But why do such considerations have no part in the determination of guilt?

This can only be answered by reading legal theorist George P. Fletcher’s essay on The Individualization of Excusing Conditions. According to Fletcher, his call for individualization envisions a criminal law, not shackled by the constraints of the English common law system, but set free by compassion, where the unique frailties of an individual are taken into account in determining criminal responsibility. The focus is therefore on the person, the very human being who was faced with very real extraordinary circumstances, and who had no choice but to act in an extraordinary manner. Fletcher argues to connect excuses to the individual's personal make-up creates more reasonable and rational outcomes than the English common law's desire to connect actions to an ephemeral and superficial "reasonable" person. To use a reasonable person standard in assessing criminal liability constructs a false rule of law bent on dehumanizing the law. When that happens, argues Fletcher, all we have left are stark, disembodied rules imposed in restrictive and unrealistic circumstances. 

In this restrictive world, Fletcher suggests, any prospects of individualization is pushed away onto the fringes of the criminal justice system to reside in the "semi-secret" sentencing arena. Sentencing, as a forum for individualization, permits discretion and compassion but, as Fletcher points out, such flexibility comes too late. Sentencing is for the guilty, not for those who should be viewed by society as innocent. 

In the Ryan case, the SCC followed the strictures of the English common law and thus the rule of law and failed to take the much needed bold step toward individualization. This is not surprising considering the slow dance the SCC has taken towards objective mens rea as the standard for crime as opposed to subjective mens rea - the last bastion of the individual. For further discussion see my previous posting Is This The End Of Subjective Intention?The Supreme Court of Canada and the Walle Case

Although the end result crafted by the SCC, in some way, vindicates Nicole Ryan, it is cold comfort to those facing dire situations, who must rely on excuses as a defence. In those cases, justice comes in the form of "semi-secret" pronouncements and extraordinary remedies and not where it counts - in assessing the true nature of criminal liability.