Episode 44 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 49 – Alarming The Queen

In this episode, we are still considering Offences Against Public Order involving treasonous conduct. Section 49 prohibits acts tending to alarm Her Majesty or acts that break the public peace. The section reads as follows:

Every one who wilfully, in the presence of Her Majesty,

            (a) does an act with intent to alarm Her Majesty or to break the public peace, or

            (b) does an act that is intended or is likely to cause bodily harm to Her Majesty,

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

The purpose of the section is to protect The Queen from harm, alarm, or even a rowdy crowd. This is a serious offence: Those who are found guilty under the section face up to 14 years incarceration. Although the fault element is clearly subjective, the word “wilfully” does not necessarily denote a high level of intention to be proven and may include the lower level of subjective mens rea of recklessness. That argument is strengthened by subsection (b) which requires that the accused either intend to cause bodily harm or does an act that is “likely” to harm The Queen. This likelihood requirement suggests foresight of risk to the prohibited consequences including recklessness. Alternatively, the section can also be interpreted as to require full subjective intention for an offence under s. 49(a) and a more general form of intention, including recklessness, for a 49(b) offence. This interpretation is supported by the requirement in (b) for the more serious and direct harm to The Queen. However, the sanction is as severe for both prohibited acts. Considering, the offence is listed under s.469 as within the exclusive jurisdiction of the Superior Court, an argument could be made that only the highest level of intention will fulfill the mens rea requirements for both subsections.

To fulfill the actus reus requirements, the accused would have to commit the prohibited acts in the “presence” of Her Majesty. Although this term suggests a face to face encounter, mere presence may mean the accused need only be in the general area.  If that is the interpretation, again, relying on symmetry between the actus reus and mens rea, the accused would have to be aware The Queen was also present at the time of the prohibited acts.

Under (a), the prohibited act is “alarm” or “break the public peace.” Alarm is not defined under the Code, but the term does appear in other sections such as s. 372, the offence of false information. We will on another occasion discuss that section more thoroughly but the wording in s. 372 is similar to s. 49. Under 372 (1), the accused must intend to injure or alarm a person by conveying false information. Notice there is no requirement the accused act “wilfully.”  Under subsection (2), the accused must intend to alarm or annoy a person by making an indecent communication.  This offence is a dual offence, punishable by summary conviction or indictment with a sentence of 2 years less a day (meaning an accused who receives the maximum sentence will be sent to a provincial institution as opposed to a federal institution, which requires a sentence for two years or more). Clearly this offence is viewed as less serious than alarming the titular head of state. Again, this increase in penalty for s. 49 is consistent with the concern with treasonous activities. The other section in the Code, requiring “alarm” is s. 178, in which the accused possesses, throws or injects an offensive volatile substance that is likely to alarm, inconvenience, discommode or cause discomfort to any person or to cause damage to property. According to the dictionary, “alarm” means “a sudden sharp apprehension and fear resulting from the perception of imminent danger.” It seems alarming The Queen means much more than merely surprising her.

The section also prohibits the accused from breaking the public peace in Her Majesty’s presence. The phrase “break the public peace” is unique to the section but the term “public peace” is used elsewhere. “Public peace” is found in s. 88, which prohibits the possession of a weapon dangerous to the public peace. It is also used to describe the duties of a peace officer under s. 2, as someone who “preserves and maintains” the public peace. In the 2004 Supreme Court of Canada Kerr decision, the concurring judgment of Justice Lebel (with Justice Arbour) defined “public peace,” in the context of s. 88. The phrase was an ancient one, referring to the King’s Peace as defined in the 1888 Volume 7 of Murray’s New English Dictionary of Historical Principles, the precursor to the Oxford Dictionary. There, the King’s Peace is defined in a more general sense as the “general peace and order of the realm, as provided for by law.” Hence, the term “keep the peace and be of good behaviour” as found as a condition in common law peace bonds. In Kerr, Justice Lebel preferred a more restrictive meaning to ensure the offence was not overbroad and to relate the phrase to the modern realities of society. Therefore, a breach of the public peace under the Code contemplated actual harm done to a person or harm likely to be done as a result of a disturbance.

Also, as mentioned earlier, this section is a s. 469 offence and within the exclusive jurisdiction of the Superior Court. Like a murder charge, another s. 469 offence, if a person is charged with this crime, the bail hearing must be before a superior court judge. At the accused’s first appearance before a provincial court judge or justice of the peace, the accused would be detained in custody pursuant to s. 515(11) of the Code to be dealt with thereafter in the superior court. Under s. 522, the burden is on the defence to apply for bail and show cause why release is warranted. This is an exception to bail principles and the Charter right under s. 11(e), which presumes release of the accused unless the Crown shows cause for detention. The trial must also be heard before the superior court judge and jury per s. 471, unless the accused and the Attorney General consent under s. 473 to trial by superior court judge sitting alone.

There is no Canadian case law relating to this section. Historically, the section was broader and in the 1892 Code was entitled “assaults on the Queen.”  This original section did require that the accused act “wilfully.” Part of the punishment upon conviction in 1892 was “to be whipped, once, twice, thrice as the court directs.” This offence must be seen in its historical context: at this time there had been several assassination attempts against Queen Victoria. Indeed, the 1892 offence included specific prohibited acts, which parallel these attempts. For instance, it was prohibited to strike or strike at the Queen. In June 1850, The Queen was hit on the head with a short cane. Although not seriously injured, the accused, Robert Pate, was sentenced to 7 years of penal transportation to serve his sentence abroad in the Australian penal colony. In 1906, the offence remained virtually the same but was changed to “assaults upon the King.” The present iteration was from the 1954 Code amendments. Most likely, this section will be changed yet again when King Charles ascends the throne or it may be seen as an archaic section, not worth retaining considering there are other sections in the Code, which would suffice. In any event, this section should be reviewed as part of Criminal Code reform.

For further discussion on the criminal law as seen through “Her Majesty,” read my previous blog entitled In The Name Of Her Majesty’s Criminal Law.

Next podcast, we will continue with the treason theme and discuss s. 50 prohibiting assisting an alien enemy to leave Canada or omitting to prevent treason.

Sections 25.1 to 25.4 – Law Enforcement Justification Provisions: Episode 32 of the Ideablawg Podcasts on the Criminal Code of Canada

In this episode we will discuss what is known as the law enforcement justification provisions, proclaimed in force on February 1, 2002, as found under a compendium of sections from 25.1 to 25.4. These sections acknowledge certain police investigatory practices will involve the commission of offences, particularly where officers operate in a covert or undercover capacity. The most well known investigatory technique subject to these sections would be the “Mr. Big” investigations, which have attracted Supreme Court of Canada notice through the recent cases of Hart and Mack. For a further discussion of the many issues arising in such investigations, I highly recommend Mr. Big: Exposing Undercover Investigations in Canada by Kouri Keenan and Joan Brockman, who are from the excellent criminology faculty at Simon Fraser University.

The sections themselves were created in response to the 1999 Supreme Court of Canada decision in Campbell, wherein the court found that police were not immune from criminal liability as a result of unlawful conduct even if it was executed in good faith and to further a criminal investigation. The Court thus called upon Parliament to legislate such protection, which it did under these sections.

Although these sections make provision for investigators to commit offences in the course of their investigatory duties, the sections also create a mechanism for parliamentary and civilian oversight of such exceptional investigatory techniques. Thus, s. 25.1 contemplates a “competent authority” such as the Federal Minister of Public Safety and Emergency Preparedness or, the applicable provincial equivalents such as in the case of Alberta, the Solicitor General and Minister of Justice, who has the authority to designate “public officers” to act in these investigatory capacities. In addition to this designation, there must be civilian oversight or a “public authority”, in accordance with 25.1(3.1) “composed of persons who are not peace officers that may review the public officer’s conduct.” Furthermore, the designating Minister, under s. 25.1(4) must designate such public officers upon the advice of a “senior official,” who is a member of a law enforcement agency and has been so designated to act as a senior official by the Minister. In some ways, this designation process is rather self-fulfilling or circular considering the actual ministerial official who is receiving the advice chooses or designates the advising official. Upon receiving the senior official’s advice, the Minister must make the public officer designation on the basis of “law enforcement generally” rather on the basis of a specific law enforcement activity or investigation. Therefore, such designation must be viewed in the broader context of law enforcement, according to 25.1(4), and not done on a case-by-case basis. As with many ministerial decisions, this is the only articulated criterion for the designation, which leaves such designation open to broad discretion.

The senior official or advisor to the Minister has broader powers permitting the temporary designation of a public officer without the competent authority, under s. 25.1(6), under exigent circumstances, wherein it is not feasible to have the competent authority or Minister perform the designation and where the public officer would be justified in the circumstances in acting contrary to the Criminal Code. The circumstances of such a designation are set out under 25.1(7) and the justification for such conduct as found under 25.1(8), being that the senior official believes on reasonable grounds that “the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.”  In such exigent circumstances the senior official must notify the Minister of this action “without delay.” This requirement, I would suggest, seems rather contradictory. The purpose of the notification would be to ensure that such actions are not taken without the knowledge of the Minister but in order to effect such awareness, notification would only be fulfilled if in fact the Minister receives the missive and reads it. If the Minister is available to review such a document, one wonders why the Minister is not in the position of making the actual decision, considering the availability of instantaneous electronic communication.

In any event, there are further restrictions on the public officer’s ability and authority to act outside of the Criminal Code. Under subsection (9), further restrictions pertain to instances where the public officer is involved in activity that would be likely to result in loss of or serious damage to property or where a person is acting under the direction of the public officer in accordance with subsection (10). In these specific circumstances, the public officer must not only comply with the circumstances of justification under subsection (8) but must also comply with the further justifications listed under subsection (9). Thus, the public officer must also be personally authorized in writing to act or if such written authorization is not feasible, the officer must believe on reasonable grounds that the acts are necessary to “preserve the life or safety of any person, prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or prevent the imminent loss or destruction of evidence of an indictable offence.” This broad authority and justification to commit criminal offences is tempered by the limitation to the section under subsection (11) that there is no justification for “the intentional or criminally negligent causing of death or bodily harm to another person; the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or conduct that would violate the sexual integrity of an individual.” Section 25.1 also reiterates that all other protections to a police officer in the Code are available and that despite the extraordinary powers under the section, officers must still comply with the rules of evidence.

When a public officer does in fact commit an offence or direct others to do so in accordance with s.25.1, there are further oversight requirements such as under s.25.2, the public officer must file a written report with the senior official as soon as feasible after the commission of the said acts. An annual report is compiled by the competent authority or Minister and made public regarding the previous yearly activities outlining the number of emergency designations made by senior officials’ and the number of written authorizations made by the senior officials under 25.1(9)(a), the number of offences committed by officers as a result, the nature of the conduct being investigated and the nature of the acts committed by the designated officers. However, such report must still preserve the confidentiality, must not compromise ongoing investigations, must not prejudice an ongoing legal proceeding and must generally be not contrary to the public interest. Such annual reports are available online.

For instance, the RCMP publishes such reports through the Public Safety website. Although the 2012 Report is available online, the 2013 Report has not as yet been published most likely as the report must be first tabled in the House of Commons and the Senate for approval. However, provincial reports are available such as the 2013 report from British Columbia. Alberta does not publish a stand-alone report but publishes the information as part of a larger report on the state of the Ministry as a whole. This means the information is not clearly accessible but is found under the heading in the report entitled “Annual Report Extracts and Other Statutory Reports.” The actual 2013 “report” consists of three lines indicating three instances of illegal conduct committed while investigating “homicide and missing persons” and resulted in “minor damage to a vehicle.”

In the previous 2012 Report there were five instances of illegal conduct wherein the officers created the “illusion” of a break in, committed property damage and participated in activities of a criminal organization. This description creates more questions than answers as it is not a crime to create an “illusion” of a crime and it is only those acts contrary to the Criminal Code, which must be reported. If in fact a crime was committed by this “illusion,” for example, if the conduct amounted to a public mischief, then the report should specify the exact crime as opposed to the circumstances in which it was done. Of course, the sections do not provide immunity for certain criminal acts, no matter in what circumstances they are committed, such as an obstruct justice. Therefore, the information needed to provide the appropriate oversight for this activity must be detailed in a transparent and accountable fashion. Similarly, the fact that the officers participated in activities of a criminal organization is unclear considering some of those activities could no doubt be specifically identified as commission of crimes. Compare this to the BC Report, which although brief, contains much more information, such as the number of times the emergency designations were used. Certainly, none of these reports have any information on how the oversight requirements of the provisions, as in the review by the “public authority” or civilian oversight committee, are fulfilled. Considering the Hart and Mack decisions and the Courts concern with the use of investigative techniques, which mimic criminal organizations, such reporting should be reconsidered by government authorities. Additionally, in light of the importance of this oversight function and the fact there is no prior judicial authorization required, the published information should be standardized by the Federal Government and subject to civilian oversight scrutiny.

As with electronic interceptions of private communications, under s. 25.4, within a year after committing the justified offence, the senior officer, who receives the public officer’s written report, must notify “in writing any person whose property was lost or seriously damaged as a result of the act or omission” unless such notification would compromise or hinder an investigation, compromise the identity of an officer or informant, endanger the life or safety of another, prejudice a legal proceeding or be contrary to the public interest. Of possible concern is the exception to notify for reasons of prejudicing a legal proceeding as such prejudice may be in the eye of the beholder. In other words, such non-disclosure may prejudice the accused’s trial, even though disclosure would prejudice the prosecutor’s case. It seems more appropriate, in matters that are before the court, for a judicial authority to balance the prejudicial effects in order to determine whether or not notice should be given. This would be more consistent with Charter rights of disclosure of the Crown’s case to the defence.

Finally, it should be noted that there are provisions, which require a legislative review of these sections within three years of the sections coming into force. The first report of such review was presented in 2006.  One of the concerns raised in the report was the lack of prior judicial authorization for some of the activity. There are other concerns raised but the Committee “lacked sufficient evidence to come to any firm conclusions” and the sections remained unchanged. Indeed the report was entitled “interim” report, although I was unable to locate a “final” one.

It is important to note the paucity of information on the civilian oversight aspect of these sections. There is no reporting of or information pertaining to the composition of the “public authority” contemplated by these sections and the findings of this oversight committee. There was an interesting paper presented at CACOLE conference, which is the Canadian Association for Civilian Oversight of Law Enforcement, in 2002 after these sections were proclaimed in force. The paper presents an excellent overview of the proposed regime and the rationale as well as discussion of similar regimes in other countries such as England and Australia. The impact on civilian oversight was minimal, meaning that there were few or no complaints arising out of the sections. However, the paper does propose some recommendations to the oversight bodies to help reinforce the import of the sections by establishing a code of conduct or policies relating to good faith of police officers and the conduct required by police officers who are authorized to use such extraordinary powers. Certainly, this kind of oversight is being done by individual boards and commissions but is not nationally mandated. Thus, another recommendation is for the Federal Government to integrate the oversight of these activities into the relevant civilian oversight of the participating law enforcement agencies. Certainly this would strengthen public confidence in the system and provide transparency in a rather obscure area of law enforcement. Of note, is the Australian regime, which uses legislation similar to our criminal code provisions, but has added protections involving stringent code of conduct for officers and the use of prior judicial authorization. Certainly the Australian experience involves a far more robust public auditing and monitoring system than here in Canada.  Of particular note is the Australian Annual Report on such activities, known as “controlled investigations,” which is far more detailed than the reporting seen in Canada.

It may very well be that these changes will not happen until and unless the Courts become involved. To date there have been some Charter applications to declare the sections unconstitutional. These applications have been dismissed at the trial level and such arguments have not been made at the appellate court level. The Honourable Mr. Justice Curtis of the British Columbia Supreme Court considered Charter arguments relating to these sections in the Lising case. In that decision, Justice Curtis found the sections were not contrary to s. 7 of the Charter as the sections were not constitutionally overbroad or vague. On the further s. 7 issue of whether or not the lack of prior judicial authorization renders the sections unconstitutional, Justice Curtis ruled that in the extraordinary circumstances of section 25.1, prior judicial authorization is not warranted and in fact impede the intention of the sections. As Justice Curtis stated “The ultimate goal of Parliament in enacting s. 25.1 is the protection of everyone’s right to “life, liberty and security of the person”. This line of reasoning may presage similar arguments, which may be made on the anticipated federal government anti-terrorism efforts that will give CSIS enhanced powers of investigation.

It will be useful to monitor the status of these provisions considering the enhanced national security concerns and the impact of the Hart and Mack cases on the “reverse sting” or “Mr. Big” operations. Yet again it will be the courts who will need to balance the rights of the individual to be free of state interference with the collective right to live in a secure and safe society.

 

 

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"