THE SUPREME COURT OF CANADA LEAVES IT FOR “ANOTHER DAY”

As most “legalistas” or those ardent followers of new case law know, it is the most recent Supreme Court of Canada cases involving contentious and pressing legal issues, which attract our attention. We eagerly stand by at the appointed time, smart phone in hand, for that exquisite moment when the screen is refreshed to reveal the release of that much anticipated decision. As soon as the style of cause hovers into existence, the rush to read with speed commences. The race begins as we calculate how long it will take to comment or tweet on the case. The quickest and most fluid response is an indication of which legalista can digest and synthesize often hundreds of paragraphs of newly minted precedent. Admittedly, I have been part of this crowd commenting. The excitement one feels in reading a new case and the energy created by extending the legal mind beyond known parameters is truly exhilarating. 

 Yet, there is a similar excitement in the quieter cases. In those legal morsels of information, it is fun to find a pattern or trend. This connection between seemingly disparate and non-descript cases provides a richness to legal analysis. For this blog commentary, I decided to side step for the time the newest and notable cases of R v Le2019 SCC 34and R v Barton2019 SCC 33to look at another recent decision R v Omar,2019 SCC 32Omaris brief and easily discarded in favour of Leand Barton but when viewed in detail the case raises contentious and pressing issues worth discussing. Although Omar did not generate any buzz at the time of its release, it does ignite a worthy discussion on when the Supreme Court of Canada decides not to comment on an issue preferring to “leave” the “question for another day.”

The Omar decision is slim. It consists of 2 paragraphs worth of reasons amounting to 7 sentences. This is not unusual for a Bench decision given orally. It is written by Justice Brown, on behalf of a 7-person panel, who outlines both the majority and dissenting opinions even though Justice Brown himself is in the dissent. Assuming it is likely the readers of this blog commentary have not read the case, I will reproduce it in full as follows:

A majority of this Court would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal. The majority adds this. It may be that consideration should be given to the availability, under s. 24(1) of the Canadian Charter of Rights and Freedoms, of remedies other than exclusion of evidence when dealing with s. 24(2), but the majority would leave this question for another day.

Justices Karakatsanis, Brown and Martin dissent, substantially for the reasons of Sharpe J.A. at the Court of Appeal.  The dissenters add this. It may be that consideration should be given to whether the police should caution persons that they stop and question that such persons need not remain or answer questions, but the dissenters would leave this for another day.

The appeal is allowed, and the convictions are restored.

There are a few notable comments to make on this brief scribe-like decision. I call it “scribe-like” as the tone of the decision brings to my mind the Ottoman Empire at its zenith when every military retinue included a ChiefScribe or Katib recording the events in a today’s version of live-streaming. This detached description of events leaves the reader with a lingering desire to hear more. Tantalizingly, the decision does “leaves” us with a desire to hear more about 2 significant issues. The majority “adds this”: a musing on whether s. 24(1) remedies can take the place of the s. 24(2) exclusionary response where there are multiple violations of the Charterinvolving sections 8,9, and 10(b). Still more intriguing is the dissent, who “leaves” us with “this”: the possibility of a SCC response to the habitual question left unresolved by case law of whether there is a positive duty on the police to advise a citizen that they need not remain and answer police questioning. As a criminal law professor who regularly teaches Moore v The Queen[1979] 1 SCR 195, a decision relying on the engagement of reciprocal duties between questioning police and responding citizens,I would welcome the much-needed modern approach to this issue. These two “we will leave for another day” issues are in fact of such pressing interest that this leave taking seems almost disingenuous and disappointing.

But this approach to “leave for another day’ is not exactly unheard of in the annals of SCC decisions. A quick perusal of Supreme Court cases uncovers 80 such decisions since 1980 in which the SCC has left us on the edge of our seat. Looking at the number of such cases rendered on a yearly basis, not since 1997 has the Court done so in so many cases in one year. In 1995, there are 7 leave-taking decisions and in 1997 there 5 cases. So far, in 2019, there are 5 such decisions and the year is only half way complete. Looking at the number of such decisions per decade, over the span of 1990s, there are 32 “leave to later” decisions, which equals almost half of the total. The next decade, that of the years starting in 2000 and ending in 2010, has provided only 10 decisions, while the present decade from 2011 on to the present day has released 24 such decisions. 

What is the significance of this numeric counting? One could speculate that the divisiveness in the Court in the crucial period of the 1990s, where the Court rendered many split decisions, produced cases in which the Court left issues on the conference table in an effort to minimize the disagreements. The same can be said for 2019. Chief Justice Wagner has publicly announcedhis support for healthy dissenting positions. Perhaps this uptick in leaving matters for later is a result of this loosening of the consensus-driven decisions under former Chief Justice McLachlin. By deflecting some contentious matters to “later,” decisions can be rendered more readily on the core issues.

 

Yet, out of the 80 decisions, Omar stands alone as the only such decision rendered from the Bench. In a previous blog commentary, I wrote almost a year ago, entitled “Dispensing Speedy Justice”, I analyzed the increasing number of SCC decisions rendered in a summary fashion. It was my contention that the Court, in an effort to “walk the talk” from Jordan, is rendering more Bench decisions to move through the appellate backlog in an efficient manner. In doing so, the Court readily adopts lower appellate court decisions on the premise that if those reasons are well contrived then there is no reason for the Court to repeat or redo reasons. This position applies even in instances where the Court disagrees as many of these summary decisions involve dissenting positions. 

Omar is a reflection of this position but then some. The case is brief, involves a majority and dissent which approves of the lower appellate court’s majority and dissent respectively. But Omar is unique as we experience a Court flexing their SCC muscle by raising issues of import in a Bench decision without deciding them. By doing so, the Court can keep the decision brief and timely. The Notice of Appeal in Omar was filed January 2, 2019 with the final decision released after argument was heard on May 22, 2019, less than 6 months later. Contrast this with R v Barton, which also includes issues left for “another day” (see para 182), which took 7 months between argument and decision. Or R v Le, also leaving issues for “another day” (see para 128), which took 15 months for the filing of the Notice of Appeal to decision. 

In 2019 thus far, there are 12 criminal cases rendered orally from the Bench out of a total of 22 criminal decisions. With over half of the criminal appeals being treated in a summary fashion, it is no wonder that Omar takes this new form of decision-making even further. What this case suggests for the future is as thought-provoking as contemplating the newest cases such as Le and Barton. In the spirit of the SCC however, I will leave this discussion for another day. 

 

DISPENSING SPEEDY JUSTICE: THE SUPREME COURT OF CANADA & DECISIONS FROM THE BENCH

Recently, I was asked to comment on the recent Supreme Court of Canada decision on R v Stephan2018 SCC 21. The decision, given from the Bench immediately after the argument of the appeal, took many media outlets by surprise. The media, and to a large extent, lawyers, are not accustomed to speedy decision-making from the Supreme Court. We collectively expect the Court to reserve judgment and then, after months of diligent research and writing, the Court issues an unassuming missive that the judgment will be rendered on X date at Y time. I have often waited at my computer close to the appointed hour in order to immerse myself in the expectation of a new judgment release. For instance, I eagerly awaited the release of R v Marakah[2017] 2 SCR 608 and R v Jones[2017] 2 SCR 696, at 9:45 a.m. ESTto be first in line to the lines of decision-making, which would, we all hoped, reveal the answers to the perplexing issues raised by the s. 8 issues surrounding the seizure of text messages found on a 3rdparty’s smart phone. True, the Supreme Court could disappoint as reality often does not live up to expectations. But at least we had 200 paragraphs on which to mull over how we should have or ought to have known better. So, when the Stephandecision was rendered so quickly, I began to wonder if this was a trend on the part of the Supremes or whether it was merely my own biases coming into play. I was determined, therefore, to see if in fact the Supreme Court is rendering from the Bench more often than in the past and if so, why.

First, I need to reveal my bias. This bias is based on a self-made presumption on the differing roles of a trial court and an appellate court and on the hierarchal stature of those courts as ingrained into me through law school and legal practice. The baggage I come with is this: that trial courts are a messy affair where the hubbub of provincial court requires speed over judicial consideration in contrast with the quiet decorum of the sparsely populated appellate courts filled with robes and lacking in lay observers. This perception of justice is overlaid with a leap in logic that in retrospect may be an improper inference: that the noisy and boisterous trial court, which dispenses speedy justice is not engaging the law writ big but is merely applying the law given to it by the bigwigs. This kind of decision making doesn’t take long does it? The idea of a reserve in the trial courts is not as welcome as in the appellate arena as it spells unconscionable delay for a client with the charge hanging over her head or, even worse, it has some ominous meaning which cannot possibly result in a good outcome. But, the appellate courts, struggling with the law, now they should take their time to render a true and just decision. We want them to read, contemplate, to hear and consider and then to write so we can all take it in. Of course, we have the hybrid superior court where the pace is less frenetic and more scholarly – we will except somedelay there but only for trial matters, applications and such must be dealt with summarily.

As outlined, this bias may result in the impermissible inference that what happens in provincial court doesn’t matter but what happens in the hallowed halls of the Supreme Court must matter because, well, they take so long. Or do they? After the release of Stephan,I was determined to find out. 

I started with an analysis of 2018 from January 1 to May 21. There are 12 criminal law judgments rendered by the Supreme Court with 8 of those decisions given from the Bench, orally, immediately after the hearing of the appeal. Out of those 8 oral decisions, 3 of the appeals (R v GTD,2018 SCC 7R v Black2018 SCC 10,  R v Stephan2018 SCC 21) are allowed resulting in new trials. Two of 3 appeals allowed are from the Court of Appeal of Alberta. 

A Bench decision, does not mean unanimity; 3 of the 8 decisions have dissenting positions from one member of the panel (R v GTD,2018 SCC 7with Chief Justice dissenting, RA v Her MajestyThe Queen2018 SCC 13with Justice Gascon dissenting, R v Cain2018 SCC 20with Justice Côtédissenting). Seven of the 8 Bench decisions, are from appeals as of right, as appeals, not requiring leave, on a question of law arising from a dissent in the lower appellate court.  Only 1 decision R v Seipp2018 SCC 1, was a dismissal after receiving leave to appeal. On the civil side, there are 10 judgments released thus far this year with only 1 judgment dismissing the appeal from the Bench but with a dissenting decision (International Brotherhood of Electrical Workers (IBEW) Local 773 v. Lawrence2018 SCC 11). Of note, 1 of the judgments released with reasons, R v Magoon2018 SCC14, was an appeal heard and dismissed, with the co-accused’s appeal R v Jordan2017 CanLII 80438on November 27, 2017, but with an indication by the Court that reasons would follow.

As an aside, of the 4 criminal appeals with written reasons, 2 cases are from the Court of Appeal of Alberta. In R v Canadian Broadcasting Corp., theCourt considered whether the CBC must delete publicly accessible information on a case for which a publication ban was issued after the publishing of that information. The Supreme Court allowed the appeal, unanimously reversing the majority decision of the Court of Appeal and upheld the decision of the chambers judge who dismissed an application for a mandatory interlocutory injunction to order the deletion of the information. The other written decision, is the previously mentioned R v Magoon, which was dismissed unanimously. Of the 12 decisions rendered on criminal cases this year, half of those are from the Court of Appeal of Alberta. 

What does all of this mean? At first blush, there appears to generally be a large number of appeals going to the Supreme Court from Alberta. The reason for this is due to s. 691, which gives an offender the right to appeal to the Supreme Court on a question of law where a judge of the court of appeal dissents. Four of the 8 oral judgments are from Alberta as appeals as of right under s. 691(1)(a) based on a dissenting decision on a question of law. The other 3 as of right appeals with an oral decision are from the Ontario (with 2 cases) and Nova Scotia appellate courts. What we can infer from this that there are a large number of dissenting decisions, on a question of law, from the Court of Appeal of Alberta. This can then lead to an inference that this higher number of dissenting decisions in Alberta are leading to a larger criminal case load in the Supreme Court. As the majority of the appeals are as of right and are not heard on the basis of leave involving issues of national importance or due to conflicting decisions from province to province, they do not engage the deep analysis needed from the Supreme Court as the final court of appeal. 

This propensity to deal with the higher caseload by rendering immediate decisions from the Bench, may also however be directly connected to a new cultural shift in the post-Jordanera. The Supreme Court must administer their court, as they admonished the lower courts to do, efficiently and effectively. Timeliness is a key feature of the s. 11(b)unreasonable delay decisions of R v Jordan, [2016] 1 SCR 631and R v Cody[2017] 1 SCR 659and that timeliness depends upon the administration of justice and court management. In many ways, the Supreme Court by setting an example of a hard-working court who reviews written material in advance, who is able to retire after hearing argument to make a final determination on legal issues, is signalling to the lower courts, including the appellate courts, that efficiencies can be found. 

In an effort, therefore to dispose of the volume of appeals, heard as of right, in a timely manner, the Supreme Court is dispensing their decisions on these cases more readily from the Bench. In so doing, they are essentially choosing “sides” by indicating whether they substantially agree with the majority or the dissent. They are, however, not only leaning on the lower court decisions in these oral judgments, but are often adding brief oral reasons, highlighting the basis for their decisions. For instance, in the most recent decision of R v Stephan, the Court agreed with the dissent of Justice O’Ferrall but briefly particularized the basis of that agreement. More substantial oral reasons were given in R v GTD,2018 SCC 7, again from Alberta, but on the issue of a breach of the Appellant’s right to counsel under s. 10(b) of the Charterand whether the violation should result in the exclusion of the statement under s. 24(2). Here, the majority of the Supreme Court allowed the appeal against conviction and reversed the majority decision of the Court of Appeal of Alberta This was a significant decision as it found a right to counsel violation when the police officer fails to “hold off” in questioning the accused where the accused indicates a desire to exercise their right to speak to a lawyer. The statement in that case was given after the Appellant was read his right to counsel with an indication he wanted to exercise that right, but the officer immediately proceeded to ask if he had anything to say, a usual question asked at the end of the standard caution. This “standard” practice was not only a violation but one in which the Court found was serious enough to require the statement given to be excluded under s. 24(2). Although a brief oral judgment, this was an important one. 

However, this rush to judgment may not always be satisfactory. Although, R v GTDoral decision is clear enough, the oral reasons in the Stephancase seem to leave us wanting more. In that case, the Appellants were convicted by a jury of a failure to provide the necessaries of life to their young child under s. 215 of the Criminal Code. The majority of the Court of Appeal for Alberta found no error in the instructions to the jury, relying on the familiar case law tropes which urge appellate courts to view the so-called error in the context of the whole charge to the jury, to not be blinded by formulaic instructions but to look at content over form and to keep in mind that a jury charge need not be error free or “perfect” (paras 43 to 44, 86 to 87 & 105, 108 & 135). 

In contrast, the dissenting Justice O’Ferrall found much wrong and little right in the instructions to the jury. At paragraph 212, he calls the instructions on the essential elements of the offence “confusing, misleading, and deficient.” The charge was so “problematic” (para 212) that it gave the jury ‘little choice but to convict” (para 214). Specifically, Justice O’Ferrall commented on the failure of the trial judge to explain what would constitute a “failure” to provide the necessaries of life and whether that so-found “failure” would amount to an endangerment of the child’s life (paras 226 to 243). These concepts were key to proving the actus reus elements of the offence and needed clear and separate attention rather than the collapsed discussion of those elements offered to the jury. He also identified an error in the trial judge’s lack of explanation of the mens rearequirement of the offence, which required proof that the Appellants conduct was a marked departure from the standard of a reasonably prudent parent (paras 244 to 272). The trial judge failed to not only explain the meaning of the term but also failed to connect to that term the relevant trial evidence on the issue. 

The Supreme Court agreed with the dissent of Justice O’Ferrall by stating from the Bench in a decision given by Justice Moldaver, known as the ‘criminal law judge’ on the Court, that

In particular, we agree that the learned trial judge conflated the actus reus and mens rea of the offence and did not sufficiently explain the concept of marked departure in a way that the jury could understand and apply it.

Considering the issues raised by Justice O’Ferrall, this case would have benefited from a written decision on what the legal meaning of “failure” is in the context of s. 215 specifically but also generally in the context of offences that require an omission to act rather than a commission. Additionally, an analysis of the meaning of the term “marked departure” would further clarify an area of law, namely objective mens reaoffences, which calls out for clarity. Although the Supreme Court in R v Beatty, [2008] 1 SCR 49, went a long way in ending a decades long argument in the Supreme Court on what form of liability criminal negligence is (objective) and that no personal characteristics are imported to the reasonable person construct, it did not provide a meaningful description of what a marked departure, in reality, would be. The best Madam Justice Charron, speaking for the majority, could do was to articulate what “marked departure” was not. It is not a form of civil negligence. It is blameworthyconduct that amounts to penal negligence (para 6). That may help but whether that would in reality help a jury decide is another matter. 

In fact, I often explain “marked departure” in class spatially, showing the difference between being off the standard civilly and being off the standard markedly as a difference in space between my outstretched hands. That usually garners a giggle or two in the class, but there are more than giggles when I then demonstrate the “marked and substantial departure” standard for s. 219 offences. The laughter is often short-lived when the students struggle to articulate the differing standards on an exam. Even with an application of facts to the standard, which should assist in the discussion, the students feel a sense of vertigo when trying to apply the law to the facts. The Stephancase would have been a perfect opportunity for the Court to set things right and give those who must apply the law a meaningful standard on which to base their decisions. 

This brief foray into the 2018 bench decisions has revealed some interesting possibilities as to why lately there just seems to be so many oral decisions rendered from the Supreme Court bench. Those reasons may be procedural (appeals as of right), may be jurisdictional (large number of dissenting decisions from the Court of Appeal of Alberta), may be a push to become aligned with the post-Jordanera or may be a combination of all three. Certainly, there is a need to go further in this analysis to determine what 2017 looked like and whether this is the ‘new look’ of this new court now lead by a new Chief Justice. There is also a need to determine if this change did indeed happen after the release of Jordanor whether this a hiccup due to dissension in the Alberta appellate court. Whatever the true reason is, there will still be a need for the Supreme Court to act as the final arbiter of the law to give clarity in those areas where we need direction and to not just speak the words of justice but to dictate them as well.

 

Riesberry – Does It Get Past The Post?

Fraud has been around for centuries. So has the concept of cheating at play. In R v Riesberry, the Supreme Court of Canada attempts to put 2 and 2 together, so to speak (albeit randomly!), to clarify the meaning of “game” under s. 209, which criminalizes “every one who, with intent to defraud any person, cheats while playing a game or in holding stakes for a game or in betting.” Game is defined under s.197 as a “game of chance or mixed chance and skill.” What was at issue in Riesberry was the favourite Ontario pastime of horse racing and Mr. Riesberry’s penchant for winning. In this case, winning by drugging two horses. Although the Court defined “game” as including a horse race, in my view the more interesting aspect of the decision is the Court’s comments on the fraud charges and what I will suggest is a failure to fully integrate criminal law principles.

Justice Cromwell, speaking for the unanimous court (although the case was not heard by the full panel of judges but of a smaller panel of 7), essentially relied upon previous SCC decisions on the actus reus requirements of fraud, specifically Olan (1978) and Theroux (1993) and the companion case Zlatic. The actus reus for fraud is comprised of two parts as per section 380, an act of “deceit, falsehood, and other fraudulent means” coupled with, according to Theroux and Zlatic, a deprivation “caused by the prohibited act,” which may result in an actual loss or a risk to the “pecuniary interest” of the victim. In the earlier decision Olan, the court expanded on the phrase “other fraudulent means” by defining it as any act “which can properly be stigmatized as dishonest.”

Before we move onto Justice Cromwell’s position, let’s unpack the significance and the impact of the Olan and Theroux/Zlatic decisions.

First, Olan, an Ontario case about a substantial fraud involving a convoluted fact scenario of companies within companies. However, as Justice Dickson (pre-Chief Justice days), on behalf of the full Court, astutely reminds the reader “One of the dangers in this case is the risk of being overwhelmed by factual minutiae. Superficially, the facts are complicated. Stripped of unessentials, it is clear what took place.” Of note is the manner in which this decision is structured, with a full recitation of the relevant law before the facts of the case are outlined. Clearly, according to Justice Dickson, the facts are not the issue as the lower court should have realized, this is an “easy” case of fraud. Hence the broad definition of “other fraudulent means,” which nicely concurs with Lord Diplock’s assessment in the House of Lords Scott decision, three years earlier. In Scott, Lord Diplock gave a generous definition of the phrase by suggesting “other fraudulent means” can involve “dishonesty of any kind.” Justice Dickson, approved of this passage and Justice Cartwright’s earlier 1963 decision in Cox and Paton to arrive at the now oft quoted meaning of the phrase as found in s. 380 as “not in the nature of a falsehood or a deceit” but acts that can “encompass all other means which can properly be stigmatized as dishonest.”

Although Justice Dickson also discussed the further actus reus requirements of deprivation, this aspect was thoroughly canvassed in the Theroux/Zlatic cases. Theroux is one of those great cases indicative of the unsettled Court of the early 1990s. Rendered in the 1993 when the Court grappled with the meaning and content of mens rea in light of the subjectivity principle and the objectivity “creep” from the driving cases of Hundal and the manslaughter decision in Creighton.  This was a time when the Court’s decisions were visceral and driven by ideology, when members of the Court aligned themselves both with other members of the Court and against other members of the Court. To prove my point just read the following SCC cases rendered that year: Cooper on the “slightly relaxed” intention found under s. 229(a)(ii) murder,  as previously mentioned Hundal and Creighton, and three further cases on the presence of objective criminal liability in Naglik, Gosset, and Finlay. Not only was mens rea on the Court’s mind but also an expansion of evidential and procedural rules as in KGB, Plant, Wiley, Grant, Levogiannis and Osolin as well as the meaning of s. 7 of the Charter as in Rodriguez and Morgentaler.

It is in this context that Theroux was decided with 3 decisions which concurred in the result:  from Justice Sopinka (with Lamer, CJ), Justice McLachlin’s majority decision (with LaForest, Gonthier, and Cory JJ.) and Justice L’Heureux-Dube’s own decision. The fragmented decision is connected to the companion Zlatic case where Justice Sopinka and the Chief Justice dissented as stated in the opening parargraphs of Theroux, because “there are several issues in my colleague's analysis of the law of fraud with which I have difficulty.” One of these “issues” involve the tension between objective and subjective mens rea and the Court’s inability to envision how the traditional criminal law world would look when that Pandora’s box containing an objective form of liability is opened. We are still feeling the effects of this conundrum today, which deserves another blog posting all together. In any event, Theroux is typically now quoted for Justice McLachlin’s (as she then was) clarification that mens rea signifies the guilty mind and does not encompass all of the mental element requirements of an offence as the actus reus too has a mental aspect requiring the prohibited act to be a voluntary act “of a willing mind at liberty to make a definite choice or decision” (See Taschereau J. in the 1962 King case). For our purposes, however, Justice McLachlin reiterated fraud’s actus reus as described in Olan with a reminder that Olan was a departure from precedent as it marked a broadening of fraud by removing the requirement for deceit and replacing it with a “general concept of dishonesty” to be objectively determined and by permitting deprivation to include a risk or “imperilling” of economic interest.

Viewing Riesberry in this context, we should not be surprised that the Court unanimously accepted this precedent and found the act of “cheating” to be an act worthy of criminal sanction. However, what should surprise us about the decision is how the Court treated the required causal connection between the dishonest act and the deprivation. Justice Cromwell easily made this crucial connection through the time-honoured “but for” test, wherein the trier asks “but for” the accused’s actions would this consequence have occurred or, as in this case, “it created the risk of betting on a horse that, but for Mr. Riesberry’s dishonest acts, might have won and led to a payout to the persons betting on that horse.” This “risk of prejudice to the economic interests of bettors” provided a direct causal link required to prove the actus reus of the fraud.

Although to Justice Cromwell this linkage was elementary, the decision on this issue is disquieting. Causality in criminal law has received much attention by the Supreme Court of Canada.  It has been a particularly difficult issue in cases where there may be multiple causes or, as in Mr. Riesberry’s case, there is a temporal issue. Causation is also a civil law concept, arising in tort cases. Like the tension between subjective liability, a traditional criminal law precept, and objective liability coming to criminal law from the regulatory or civil arena, the concept of “criminal” causality has been a long-standing subject in criminal cases.  

The question of factual causation or the “but for” test referred to and applied by Justice Cromwell has indeed been straight forward and easy to apply. But the issue of legal causation, the concept of culpability and where the criminal law should draw the line has been less easily determined. Legal causation sees the “but for” but wants to know to what degree is the accused the cause and is it sufficient to attract the full force of the criminal law. This was the issue in Harbottle, where the degree of causation required in a first-degree murder charge was considered, and interestingly enough was decided in 1993 when Theroux was considered. It was also the issue in Nette where second-degree murder was considered and the entire concept of criminal causation was considered. To attract criminal culpability not only must the “but for” test be fulfilled but the actions of the accused must also be a “significant contributing cause” of the consequence. Since Nette, this legal test has been applied such as in the recent case of Maybin involving a manslaughter. Not only did Justice Cromwell not enter into this legal analysis, he did not even mention its existence. Considering fraud is akin to theft in that it is a “true crime,” which attracts stigma upon conviction, the legal concept of causation should have been considered even on these facts.

Had it been considered, the final analysis may very well have been the same but the case, left as it is, seems unfinished. Without getting into it, another area of disconnect in this decision is with the concept of deprivation as a “risk” as opposed to an actuality. This position seems consistent with previous decisions of the court such as Mabior and Hutchinson as it related to fraud vitiating consent under s. 265(3). Again, no analytical connection is made here. This also seems decidedly “unmodern.”

As early as 1990 (see Starr v Houlden), the Supreme Court of Canada had begun to embrace the “holistic approach” to law, refusing to be pigeon-holed by the past (specifically see paragraph 16 of the 2011 Sarrazin case and approval of this concept as recommended by Moldaver, J.A., as a then dissenting voice in the Ontario Court of Appeal decision). This recognition and desire for integration has also seen traction in the broader societal context. Riesberry, by failing to integrate principles and make these holistic connections, leaves us to consider the pieces of the puzzle instead of the picture as a whole.

 

 

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.

 

 

 

 

 

 

 

Thoughts On St-Cloud Or How Everything Old Is New Again

After reading the Supreme Court of Canada’s decision in St-Cloud, I was instantly transported back to the heady days of the early nineties: where multifarious decisions produced more questions than answers but left the reader with the comforting feeling that somehow the Charter was above the fray. In those mixed-bag decisions there was the satisfaction that the Charter did make a difference and was shaping the new-look Canadian society. However, this nostalgic wave of emotion was not a “remembrance of things past” but was a physical time travel to the days of Morales, wherein the Supreme Court found the secondary “public interest” ground for justifying detention under the then s. 515 of no force and effect as it violated s. 11(e) of the Charter.

Now, let’s be clear, I agree that the 1990’s version of the grounds justifying detention under the Code is very different than today’s read. However, Justice Wagner’s decision applies a broad brush to those differences resulting in a tertiary ground which looks, feels, and acts like the old version.

In Morales and the companion case Pearson, Chief Justice Lamer unpacked the meaning of “public interest” as a judicial tool to justify the denial of bail. This justification was important to articulate, as the granting of bail was the default position under the section. Similarly, “reasonable” bail was guaranteed under s. 11(e) of the Charter. The meaning of “public interest” was therefore an important indicator of whether or not the law was properly mirroring this Charter right. In order to give meaning to a right, all courts should be in agreement with that meaning or the right is no longer an equitable claim.  If “public interest” could not be crystallized and articulable then it would be of no assistance in grounding a denial of bail. This did not mean that there must be a precise definition but an articulable one. Throughout this discussion, Chief Justice Lamer reiterated the “golden thread” by which the court was guided in viewing the matter – the “golden thread” of the presumption of innocence.

Under this 1990’s microscope, the court was unable to find a consensus on the meaning of “public interest” resulting in a “vague and imprecise” basis for detention, which was contrary to fundamental principles of justice such as the principle of legality as delineated in the SCC case of Lohnes rendered a few months earlier. Upon a thorough sweep of authorities, Lamer C. J. found the term “public interest” was “open-ended” and failed to provide a structure for legal debate.  With such a deficient yardstick, the ground could not be saved under s. 1.

It seems pretty clear from this decision that “public interest” is an unusable phrase from the past, except for this telling line from the Morales decision:

“As currently defined by the courts, the term "public interest" is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.” (Emphasis added)

Now, flash-forward to the St-Cloud decision and Justice Wagner’s valiant attempts to define “public confidence” seems to make short shrift of the Morales decision. To be sure the 2015 Court is working with a differently worded section and the issue is “public confidence” in the administration of justice and not “public interest” but what is “public confidence” now can be “public interest” then.  Although Justice Wagner is very careful to couch the meaning in Charter correct terms and is mindful of the unique connection release from custody has to our fundamental concepts of the presumption of innocence and burden of proof, the fact remains that these core principles are now bound by the public interest, albeit tempered by the concept of Canada’s nom de plume, “reasonableness.”

This case raises many questions. Not just questions of applicability and not just questions of how this decision will look like in the realities of bail court but fundamental questions such as: is the law looking backward instead of forward by essentially reviving the public interest as a controlling feature of bail? And if so, how does the public interest reside within our fundamental principles, which tend to the individual as opposed to the collective, such as the presumption of innocence as the “golden thread” that appears throughout our notion of criminal law? These hard questions must be asked if we are to move into the future and beyond.

A Fresh Look at Fearon: How Language Informs The Law

A case commentary typically expounds on the legal doctrinal issues raised by the decision and rarely looks at the judgment as a literary document. The final full SCC judgment of the year, Fearon, has been much discussed on the doctrinal level but as a final 2014 legal send-off, a different kind of case commentary is in order.

On a literary linguistic level, the Fearon case is a fascinating example of how the majority and the dissent employ differing or shall we say dueling word usage. The choice of terminology is not only intended to signal a very particular perspective but firmly connects the decisions to doctrinal perspectives emanating from prior cases. This continuity with the past provides precedential value to the two decisions and challenges us, as readers, to determine which decision is really the right one. Hand in hand with this analysis, is the revealing metaphors abounding in these decisions.

Let’s first look at the majority decision written by Justice Cromwell. The first term used in this decision is the phrase “truly incidental” as in the police generally (note that the general versus the specific is also underlined in the majority decision) have a common law power to search a cell phone incident to arrest if the search is truly incidental to the arrest. Not just incidental but truly incidental. In the judgment there are 22 incidents of this phrase, all in the majority decision! Yet, in terms of previous SCC cases, the term appears only in the Caslake decision, which found an “inventory” search of an accused’s vehicle, hours after arrest, invalid as such a search was not “truly” incidental. For a search to be truly incidental, there must be a “valid purpose” connected to the arrest. By the way, the term “valid purpose” pops up 5 times in the majority judgment.

Caslake is referred to 15 times in the judgment, with 12 references in the majority and 3 in the dissent. The dissent refers to the generalities of Caslake - as to when a warrantless search may be appropriate - and does not mimic the s. 8 language as the majority does. Although “truly incidental” is found in only 2 SCC criminal cases, the term is used in lower court nomenclature. In Ontario, including Fearon, there are about 46 cases using the term but they all occur after 1998, the year the SCC decision in Caslake was released. Although the Manitoba Court of Appeal decided the lower court decision in 1995, Caslake, was not, as yet, part of the s.8 vocabulary.

Before we move onto other terminology, note that the phrase “strictly incidental” is used only once as is the phrase “properly incidental.” According to the Merriam-Webster Dictionary, “truly” is defined, for Fearon purposes, as “without question or doubt” and “strictly” means “rigorously conforming to principle or a norm or condition.”

The word “prompt” is used 31 times, with only two of those occasions by the dissent and for very different reasons. The majority uses the word “prompt,” defined as “performed readily or immediately” to provide the underlying reason for a search incident to arrest as the immediate need to investigate the offence by gathering crucial evidence.  It is the timeliness and the speed with which the police must pursue this investigation, which underlies the majority decision. Conversely, one of the times the dissent uses “promptly” is in reference to Justice Cromwell’s majority decision and the other occurrence is to highlight how quickly the police, in the case, applied for a warrant when case law suggested they needed to do so. Thus the term “immediate” or “immediately” is used often throughout as well.

Another phrase used liberally throughout the majority decision is the phrase “law enforcement objectives,” which is used 26 times, 4 of which is in the dissent. Again, 3 of those 4 occasions in the dissent are direct references to Justice Cromwell’s majority decision. This term is used in 4 previous SCC cases, 3 of which are search and seizure cases being the Law case from 2002 – privacy interest in stolen property; Chehil – sniffer dog case involving the search of vehicles from 2013; and the Stillman case of 1997 the case on the seizure of bodily samples and discussed at length in Fearon. The term “law enforcement” is further described in the majority judgment as being “important” 12 times in the majority.

The word use is much different in the dissent. Indeed, the atmosphere of the two decisions differs dramatically. Justice Cromwell’s decision has a law and order aspect reminding us of the need for investigatory powers to enhance and uphold the rule of law. As will be discussed below, the choice of words highlights this theme through the use of metaphors involving balancing and weighing and metaphors involving the limitation of space and time.

In contrast, the dissent is a decision marked by Charter values and modernity – it reads like a law school paper on constitutional rights and freedoms, inviting the reader to muse on the lofty ideals crucial to a free and democratic society. Indeed that term, “free and democratic society” appears three times in the dissent (plus “democracy” appearing once) and appears there only with no such Charter values relied upon in the majority, other than the balancing of rights required under s.8.

Other Charter values involving individual rights and freedoms are also relied upon in the dissent decision but it is the word “privacy” that trumps them all. This word is used 123 times in the decision with the word used 37 times in the majority but a whopping 86 times in the dissent. Certainly “privacy” is a word that at some point must be used by the majority when the decision speaks to the balancing of rights under s. 8 but more telling is the use of the word “private” in the decision. It occurs once in the majority but only in reference to strip searches and “private areas.” In the dissent however “private” occurs 27 times to describe “private digital devices,” “private lives,” and the “private sphere,” among some of the uses of the term. Again, this term is signaling the core of the dissent’s decision that privacy is at stake in the case and therefore it is privacy and the living of the “good” life protected by Charter values which are be the controlling issues in the case.

Not only are certain terms and phrases utilized to bolster each of these decisions but the decisions use the literary device of metaphor to solidify and justify the decisions as well. Thus, both the majority and dissent use balancing and weighing metaphors (25 times) to support different outcomes. The majority relies heavily on space metaphors and the desire to delineate the space wherein the rule of law must reside requiring the use of the words “scope” and “parameters” and “limits” and “points” by the majority. The majority also uses work or structure metaphors, using the term “framework,” “task,” and “link.” The dissent uses social words connoting society and community such as “lives,” “relationships” and “intimate” with a liberal use of emotive terms such as “likes and dislikes, our fears, hopes, opinions, beliefs and ideas.” The metaphor of “big brother” also looms large as a pointed reference to Orwell’s 1984 figures in the dissent. In contrast the concept of freedom and the ability to choose one’s own path is highlighted.

There are many other nuggets in this judgment worth discussing as a counter-point or enhancement of a pure doctrinal study of the case. It will indeed be interesting if any future SCC cases utilize this stark linguistic contrast or if it is merely a result of the impassioned differences on the SCC on this particular issue, which determined choice of language. 

I must at this point acknowledge Professor Jonnette Watson-Hamilton, for whom I did some research on metaphors and language many years ago while pursuing my Masters at the University of Calgary, Faculty of Law. She introduced me to the critical theories of language involving the use of metaphors in legal decision-making – a “truly” illuminating experience! Review her articles written to access her publications involving language and metaphor.

For further information on this, start with the seminal works by cognitive linguist George Lakoff, particularly Metaphors We Live By, which Lakoff wrote with Mark Johnson. There are now multiple scholarly articles involving metaphors and linguistic techniques in legal discourse. The starting point for this is found in the articles written by Robert Cover, a fantastic legal scholar, sadly now deceased. Read his two seminal articles entitled Violence and the Word and Nomos and Narrative. I have also written a previous blog on Cover called Is Violence The Word? Additionally, I have written two previous blogs using metaphors as part of the legal analysis in Impression and Claim: Are They Both The Same? and in Blogs As Graffiti.

 

The Assisted Suicide Debate: A Legal Primer

Sometime ago, I wrote three blogs on the assisted suicide debate in light of the Rodriguez case and the soon to be argued before the Supreme Court of Canada, Carter case. In light of the hearing scheduled for Wednesday of this week, I am gathering these prior postings below as a primer to the issue and including a fourth blog relating to the Criminal Code prohibition of consenting to one's own death:

Whose Life Is This Anyway? Part One of the Right To Die Debate in Canada

Whose Life Is This Anyway? Sue Rodriguez and the Supreme Court of Canada

Assisted Suicide Appeal - the Carter case

Section 14 of the Criminal Code - Consenting To Death

Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcasts on the Criminal Code of Canada

Reviewing the past few episodes, I have noticed a thematic connection: from section 13 to the section 18, the discussion has focused on the availability of specific defences. Today’s section 19 continues that Code conversation by speaking of the “defence” of “ignorance.” The section reads as follows:

Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

In fact, the section does not set out a defence but seems to take away a defence, the one of – I-did-not-know-that-was-a-crime – kind of defence. We know that mistake of fact is an excuse, which if accepted goes to the mens rea or criminal intention required but why should ignorance of the law not be accepted as an excuse considering there are so many laws. Not even a lawyer can keep track of the myriad of laws and regulations out there so why deem knowledge to seemingly naïve citizens?

This presumption of knowledge has actually been in place a long time: not only since the Code’s inception but also since laws were even glimmers in Hammurabi’s eyes.  The actual section comes from the English common law, which hails from a Latin maxim found in Roman law: ignorantia juris non excusat. Once laws were codified and therefore written down for all to see, this idea, that a breach of the law cannot be excused through lack of knowledge, became an important aspect of the internal workings of the law.

One reason for this presumption is to ensure that people did not become a law unto themselves – one cannot pick and choose the laws he or she wishes to follow. Everyone is considered to be equally knowledgeable and therefore equally liable if the law is breached.

Practically, it is about incentives – ignorance is no excuse so you better inform yourself before you do it. This ensured people did not remain willfully blind. Of course, as already mentioned, to inform oneself of all the laws is an almost impossible burden, but section 19 places the information burden, to a certain extent, on the individual as opposed to the state. The government does inform the general public of our laws through publications on websites, books, and, formally, in the Canada Gazette. It is then the responsibility of the specific individual to take advantage of these publications and inform him or her as needed. Putting it into historical context, if a citizen breaks the law, Hammurabi need only say “there is no excuse, the law is clearly here on the Stele!”

Histrionics aside, as I said earlier in the podcast/posting, section 19 “seems” to take away the defence of ignorance of the law. There are two reasons for this caveat.

First, there are numerous scholarly articles on how ignorance is in fact an excuse, in certain circumstances, and that the blanket statement in section 19, and found in the legal principles of most western legal systems, simply does not reflect the true state of the law. In support of this view, I recommend just some of the following articles: “Ignorance of the Law is No Excuse?,” “Ignorance of the Law is No Excuse, Except for Tax Crimes,” “Ignorance of the Law IS an Excuse, But Only for the Virtuous,” and my favourite, “The Death of a Maxim: Ignorance of the Law is No Excuse (Killed By Money, Guns, and a Little Sex.”

Second, there is a defence known as mistake of law, which I submit is not exactly an ignorance of the law excuse, and has found only limited success in the criminal law arena. This defence, known as the defence of officially induced error, is not so much about ignorance as it is about knowledge and from where that knowledge comes. This defence, which has its origins in the regulatory context, is a form of due diligence, which exonerates an accused who reasonably relies upon an erroneous legal opinion or relies upon incorrect advice from an official responsible for that particular area of law. So, the defence does not revolve around a complete failure to inform but around a mistaken but reasonable belief in the interpretation of the law. This exception to section 19 is permitted, as stated in the Supreme Court of Canada Jorgensen case, to ensure “that the morally blameless are not made criminally responsible for their actions.”

The main conceptual difficulty with s.19 is that knowing the law, as in knowing what the section says, does not mean one understands the law or understands what kind of behaviour a particular section may or may not prohibit. Meaning hinges on interpretation and therefore depends upon case law. To access this judge-made law one must have legal expertise. Surely, s. 19 does not take into account the seemingly endless complexities of our laws and of the legal interpretation of them.

On that note, I leave you to consider another Supreme Court of Canada decision, in the McIntosh case, wherein the then Chief Justice Lamer, on behalf of the majority, disapproved of reading-in words into the then s.34, self-defence section, as:

Under s. 19 of the Criminal Code, ignorance of the law is no excuse to criminal liability. Our criminal justice system presumes that everyone knows the law. Yet we can hardly sustain such a presumption if courts adopt interpretations of penal provisions, which rely on the reading-in of words, which do not appear on the face of the provisions. How can a citizen possibly know the law in such a circumstance?

The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach, which is sensitive to liberty interests. Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law.

Section 19 may provide certainty in the criminal law but the real question is whether it provides clarity.

Section 19 - Ignorance and the Law: Episode 21 of the Ideablawg Podcast on the Criminal Code

Let’s Be Clear: The Supreme Court of Canada and the Enhanced Credit Cases

The enhanced credit trilogy cases released by the Supreme Court of Canada are truly a lesson in clarity on many levels. First, the main judgment in the Summers case, written by Madame Justice Karakatsanis, is clear, concise (at least for a SCC judgment) and readable. Second, the main basis for dismissing the Crown appeal is the government’s lack of clarity in defining the meaning of “circumstances” that justify enhanced credit under s. 719(3.1). Conversely, third, is the seemingly clear intention of the government to “cap” the credit at a 1:1.5 ratio. However, fourth, are the clearly defined and “well-established” and “long-standing” sentencing principles, which included enhanced credit for the lack of parole eligibility during pre-trial custody. In order to “overturn” these principles, Parliament must, fifthly, use clear and explicit language in the legislation.

What is also clear about this judgment (sixth) is that the Court is engaging in a dialogue with the government. If the government wants to change the law, they must do so, well, clearly – the government cannot hide behind value-laden words such as “truth” and “transparency.” However, the Court, albeit in an aside in paragraph 56 of the Summers judgment, also places a caveat on the government’s ability to change entrenched legal principles when Justice Karakatsanis states “Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge).” Certainly, this advice is clear: if the government chooses to change legislation, then any changes must be consistent with the Charter.

 

Parliament, the ball is now in your “court!”

 

 

 

Making A Split-Decision In The Supreme Court of Canada

Last month the Supreme Court of Canada released their statistics covering the last decade of decisions. The graphs make interesting reading if you want to know how long it takes for decisions to be rendered or which provinces send the most appeals. If those issues are not at the top of your must-know list, the graph on the number of unanimous decisions versus split decisions may be the graph to pique your interest. The lowest percentage of split decisions in a given year was in 2006, where 20% of the cases heard resulted in a dissenting decision. The highest percentage of dissenting decisions occurred in 2007 with 38% of the cases. Last year, 32% of the cases produced dissents.

What could have made these statistics even more enticing would be a break down on who sits in dissent most often and why. Are there thematic connections? Well, of course there are: a justice dissenting on a specific issue would not be expected to change his or her mind if the same or even similar issue arises. However, change does occur, as we know when reviewing the decade of cases from the 1990s on the mens rea requirements for criminal negligence. This change or shift in the court’s decision-making is appropriate and welcome: we want our courts to be reflective of societal fundamental values and this ability for change in legal principles permits this. We also want our jurists to be open to this change, in a principled way, of course. So, analyzing SCC decisions is a way to track change and to better understand the court’s position or change in position on any given issue.

Instead of waiting another decade for these interesting numerical tidbits, I crunched the criminal law numbers for this year. From January to mid-March there have been 13 criminal cases in which written decisions were rendered. Out of the 13 cases, nine of the cases resulted in unanimous decisions. Quite frankly these unanimous decisions are very short and merely the Court agreeing with the lower level appeal courts. Four cases, however, were split decisions. Roughly, 30.7% of the cases are therefore split or dissent decisions. This percentage is fairly consistent with last year.

 

Now, let’s move away from the empirical side and look at these four decisions for meaning. What kind of split decisions are these?

I have spoken about the Babos case in a previous blog entitled When Dissent In The Supreme Court Matters. This type of split decision, where there is only one Justice in dissent, signifies a fundamental difference in opinion between the majority written by Justice Moldaver, on behalf of the five other justices on the panel, and the lone dissenter, Justice Abella. As such, the dissent is heartfelt and invokes value-laden terms such as the “exceptional assault on the public’s sense of justice” in the face of “egregious state conduct.” Justice Abella, with her background in human rights, is speaking out in a case where her dissent may not really matter in legal principle terms but is a matter with which she disagrees “on principle.” I would call this a “moral/ethical” decision.

The MacDonald case is more benign. It is a “true application” decision. The disagreement does not involve a direct disagreement on the issue at hand but a disagreement on the true or correct application of previously decided legal principles. Thus, the dissent written by Justice Moldaver and Justice Wagner with Justice Rothstein concurring takes umbrage with the majority’s application or misapplication of the Mann case, decided a decade earlier, on the reasonableness of protective police searches. Ironically, Justice LeBel, who wrote the majority decision, was a member of the majority Mann decision. The dissent does not fail to appreciate this irony when they write:

The majority in this case purports to apply Mann.  Respectfully, however, it does not.  Instead, it renders Mann redundant, depriving police officers of the limited search powers they need to protect themselves and the public in fluid and often unpredictable situations of potential danger.

Such a case leaves the legal profession wondering if the Court can’t apply its own case properly, who can? Keep an eye on how this decision, which did not cause the flurry of attention in the legal profession it should have, will affect trial matters in the lower courts.

In Sekhon, the court considered the admissibility of a police officer’s “expert” evidence on drug couriers pursuant to the Mohan criteria. Although, both the majority decision, written by Justice Moldaver, and the dissent, written by Justice LeBel (notice how quickly the tables turn in the SCC in terms of who is in the dissent and who is in the majority!), agree that the evidence was inadmissible, the differences come in the application of s. 686(1)(b)(iii) and whether the appeal should be dismissed as there was no substantial wrong or miscarriage of justice. Again, both the majority and dissent agree on the basics: that the admission of the evidence was not a trivial error. However, in Justice Moldaver’s view the evidence of guilt was overwhelming and therefore it is within the public’s interest not to send the matter back to trial considering the costs to the criminal justice system. Justice LeBel agreed “that ordering a new trial places demands on judicial resources,” however, “this cannot override the appellant’s right to a fair trial based solely on admissible evidence.” In Justice LeBel’s view, the inadmissible evidence went to the very issue before the court – the guilt or innocence of the accused. This kind of decision is the “tug of war” decision.

Finally, the Hutchinson case is the “throw-back” decision. What did we say in Mabior again? While this case does not re-litigate the issues, as Mabior was a unanimous decision written by Chief Justice McLachlin, it does build upon some of the key pronouncements in that case. Thus, in Hutchinson, the majority, written by Chief Justice McLachlin and Justice Cromwell, agree that sexual assault offences protect sexual autonomy but not absolutely as the “blunt instrument of the criminal law” must be used with “appropriate restraint.” On the other hand, the dissent written by Justice Moldaver and Justice Abella view the protection of the sexual integrity of a person, as the controlling issue in the meaning of consent, within the broader context of public policy. Interesting to see the majority speak of traditional criminal law principles in the context of offences, which, for public policy reasons, are the least traditional criminal law offences in the Code. Clearly, there is much more to be said on the issue and a further “throw-back’ decision would not be unlikely.

So, there is a lot to be said about the court’s decisions over and beyond the simple statistical graphs we review every ten years. I wonder what the next few weeks will tell us? 

When Dissent In the Supreme Court of Canada Matters

Have you ever wondered about the significance of a dissenting opinion in the Supreme Court of Canada? To use one of their favoured terms, dissenting decisions may be signifiers of “incremental change.” Overtime, however, these dissenting opinions may become the majority decision. Certainly, some of Chief Justice McLachlin’s dissents are an example of this – most recently in the air of reality line of cases – see my previous blog on the issue here. Of course, sometimes a dissenting opinion does not signify change but simply signifies dissent – a vocalization of a differing viewpoint or to use probably a trite yet apt Robert Frost analogy “the road not taken.”  The recent Supreme Court of Canada Babos case on prosecutorial misconduct is an example of when dissent for dissent's sake matters.

Justice Abella’s dissent on the issue makes for powerful reading, invoking the sanctity of the justice system and the high standard we expect from our quasi-judicial prosecutors, who stand on behalf of the state as upholders of society’s fundamental values. Even in the adversarial system, the duties of the Crown prosecutor transcend the arena of dispute, as they must defend the law in the pursuit of justice. Justice does not have a stake in the ultimate outcome of guilt or innocence but does impact how the ultimate outcome is achieved.

This role is, as suggested by Madame Justice Abella, timeless and does not crystallize at particular points of a prosecution but must permeate every action or inaction of the Crown.  As she so eloquently said, “Time is not a legal remedy for a fundamental breach of the Crown’s role, and cannot retroactively cure intolerable state conduct.”  Difficult balancing must be done to fulfill this duty but it is of utmost importance in the viability and credibility of the criminal justice system.

So I encourage you to read the dissent and envision an alternate view where “an exceptional assault on the public’s sense of justice” is deemed worthy of dissent.

Poof! Into Thin Air – Where Have All The Defences Gone?: The Supreme Court of Canada And The Air Of Reality Test

THE FOLLOWING BLOG BECAME THE BASIS OF A PUBLISHED ARTICLE NOW IN  (2014) 61 Criminal Law Quarterly 531

Last week the Supreme Court of Canada, yet again, restricted access to criminal defences. The Court, in the earlier Ryan case, signaled their desire to limit criminal defences to the realm of the reasonable person. This objectifying of defences, which in the Ryan case involves the defence of duress, places a barrier between the specific accused, as a thinking and feeling person, and her culpable actions by assessing the individual through the lens of the general; that of the reasonable person, who has no fixed address but, apparently, a lot of common sense. This external assessment, which looks outside the confines of the Court for direction, fails to appreciate the humanity before it in the shape of an accused faced with a dire choice whereby breaking the law means survival. For more on Ryan read my blog here.

Now in the Cairney and Pappas cases, the Court has added an additional barrier to all justifications and excuses through the “clarification” of the air of reality test. I have considered the lower Courts decisions on these cases in an earlier blog.

To discuss these decisions, we must first understand the antecedents of the air of reality test in Supreme Court of Canada cases. The phrase “air of reality” comes from the 1980 Pappajohn case. Pappajohn was charged with the rape of a real estate agent who was trying to sell his home. The accused and the complainant had diametrically opposed versions of the incident. According to the complainant, she was violently raped and according to the accused, they had consensual intercourse. The defence argued for the defence of mistake of fact to be left to the jury for their consideration. This mens rea defence, if accepted, would entitle the accused to an acquittal on the basis the accused had an honest but mistaken belief the complainant was consenting and therefore did not have the requisite mens rea to commit the offence. The trial judge refused to leave the defence to the jury and Mr. Pappajohn was convicted of rape.

It is in the majority judgment, written by Justice McIntyre, where the term “air of reality” is first used in relation to defences. In dismissing the appeal, Justice McIntyre finds the trial judge was correct in refusing to consider the defence of honest but mistaken belief as there was no “air of reality” to it. According to Justice McIntyre, for such a defence to be considered there must be “some evidence beyond the mere assertion of belief in consent” found in evidential sources other than the accused.

This air of reality requirement was used two years later in the SCC Brisson case, where self-defence was at issue. In Brisson, although all justices dismissed the accused’s appeal against conviction for first degree murder, there were three concurring judgments, with one such judgment written by Mr. Justice McIntyre who again finds that a trial judge must only instruct a jury on a defence, which has “some evidence sufficient to give an air of reality.” Interestingly, in the later 1985 Sansregret case, again on the application of the defence of mistake of fact in a rape case, Justice McIntyre does not refer specifically to the “air of reality” test but to the “air of unreality” of the defence.

The term “air of reality” is finally elevated to a “test” by Justice McIntyre in another mistake of fact rape case, Bulmer, from 1987. Here, Justice McIntyre fills in the phrase, “air of reality,” with a framework for trial judges to apply. He explains the test as a preliminary step in which the trial judge “is not concerned with the weight of the evidence or with the credibility of the evidence.” The simple question to be answered at this initial stage is: in all of the circumstances of this case, is there an air of reality in the defence?” The accused’s evidence will therefore become a factor but not the determining factor in deciding if there is, on the whole of the evidence, an air of reality. None of the cases I have referred to above were considered in the Pappas and Cairney cases.

After the Bulmer case, most SCC air of reality cases relate to the defence of mistaken belief until the 2002 Cinous case, which considered the defence of self-defence. Six of the nine-member Court in Cinous agreed to allow the appeal and enter a conviction. The majority reasons written by Chief Justice McLachlin and Justice Bastarache emphatically upheld previous enunciations on the test and viewed the air of reality test in the singular with no need to modify it for differing defences. They reaffirmed that the test “does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences.”

Even with this clear admonishment, the majority did modify the air of reality test by introducing the concept of the limited weighing of evidence

“where the record does not disclose direct evidence as to every element of the defence, or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component.” (underlining added)

It is the last part of this quote which concerns the use of the defences known as justifications and excuses – necessity, duress, self defence and defence of the person including provocation, the defence raised in Pappas and in Cairney. These defences all have subjective and objective elements. All of these defences are subject to the air of reality test and subsequently all of these defences are open to the limited weighing of the evidence to determine whether or not the defence will be available to the accused.

In Cinous, for example, the Court referred to the proportionality requirement of the defence of necessity as requiring the trial judge to balance the various social values at play with public policy in deciding if the harm inflicted was proportionate to the harm avoided. This objective assessment requires the trial judge to draw inferences from the world outside of the accused and thus, according to the SCC, the trial judge must employ the limited weighing of the factors underlying the defence, which may impact this assessment. 

But from where did this concept of “limited weighing” come, if as Chief Justice McLachlin maintains in the majority judgments of Pappas and of Cairney the air of reality test has never changed?

This limited weighing does not come from the assessment of defences but from directed verdict/preliminary hearing cases. The first SCC mention of “limited weighing” comes from the 1998 Charemski case on a directed verdict where the case was based on circumstantial evidence. Unsurprisingly, it is Chief Justice McLachlin who consistently approves of limited weighing and is the torchbearer of Justice McIntyre’s air of reality test. Charemski is a case heard by only a five-member court with the then Justice McLachlin in dissent. Justice McLachlin disagreed with the majority and pointedly suggested that “while some judges,” (hint as to who those “judges” are – just take a look at the majority decision), “have referred to a distinction between “no evidence” and “some evidence”, this distinction is nonsensical.” According to McLachlin, it is the sufficiency of evidence at issue. To determine sufficiency in the circumstantial world, McLachlin further explained, trial judges must “engage in a limited evaluation of inferences.”

In the SCC 2001 Arcuri case, the extent to which the trial judge or, in this case the preliminary inquiry judge, must enter into this limited weighing was clarified by Chief Justice McLachlin on behalf of the full Court. Arcuri wanted the preliminary inquiry judge to weigh the evidence as the evidence was purely circumstantial and the witnesses evidence arguably exculpatory. In dismissing the appeal, the Chief Justice explained that limited weighing did not mean the judge was actually weighing the evidence in determining guilt or innocence but engaged in limited weighing as follows:

In the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.  This weighing, however, is limited.  The judge does not ask whether she herself would conclude that the accused is guilty.  Nor does the judge draw factual inferences or assess credibility.  The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. 

This means the trial judge when engaging in limited weighing of the evidence is considering the reasonable possibilities of such evidence and not considering the quality of the evidence. In the Court’s view it is for the trier of fact to decide what inference should be taken in determining guilt or innocence.

The nuances of this test are obvious: the idea the judge must draw a reasonable inference is importing, into yet another stage of a criminal trial, the objective standard. Such limited weighing may go the accused’s benefit such as in the Charmeski case where the then Justice McLachlin would have restored the acquittal. However, to apply the same standard of assessment to defences, may be the way of the Musketeers – all for one test and one test for all – but it fails to recognize the importance and uniqueness of justifications and excuses as the last bastion against the power of the State. Almost akin to a “faint hope” clause, when an accused turns to a justification or excuse as a defence, the case has essentially been made out against the accused as both the mens rea and actus reus, the dual requirements for a crime,  have been established beyond a reasonable doubt. Guilt is nigh and the only reasonable doubt becomes whether or not this accused, faced with dire circumstances, made the only choice available.

These defences are not broadly based and are not a concrete lifeline. They are subject to both subjective and objective elements and if the accused does not fulfill the prerequisites of the reasonable person portion of the defence, the defence fails. To then superimpose the limited weighing concept of the air of reality test, which is also based on an objective assessment, is to further restrict an already narrowly based defence.

Through this limited weighing on an air of reality test, the SCC has effectively increased the standard with which the evidence of the defence is to be assessed. One wonders if this kind of restriction is truly in the spirit of Charter values. It would be worthwhile, in a year from now, to study the impact this case will have on the ability of the accused to make full answer in defence and whether, like a transient puff of air, all of the defences are gone.

 

 

 

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"

Reasonable Suspicion Part Two: Business As Usual At the Supreme Court of Canada

The much-anticipated Chehil case seems to disappoint. Why? Is it because the case fails to deliver the legal community a clear and workable standard of reasonable suspicion? Or perhaps the decision disappoints because it adds nothing new to legal discourse? I believe it is the latter as the Supreme Court of Canada attempts to invoke the “kiss” or “keep it simple & straightforward” principle.

Instead of breaking new ground on the concept of reasonable suspicion, the Court opts for consistency. No question the Court is consistent when they admonish trial judges to look at a “constellation of factors” in determining the presence of reasonable suspicion: this warning to take into account the “totality of the circumstances” is an accustomed refrain in many of the SCC’s criminal decisions. It has even been referred to as “the totality of the circumstances test” as in the SCC cases of Tessling or, more recently, Cole in determining “reasonable expectation of privacy.” Of interest, this test was also referred to in the SCC Garafoli decision on wiretap authorizations where the “source” of the test is found in the American Illinois v. Gates case from 1983 on “probable cause,” which states:


The elements under the "two-pronged test" concerning the informant's "veracity," "reliability," and "basis of knowledge" should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. This flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Pp. 462 U. S. 230-241. (emphasis added)

As indicated from the excerpt above, the Chehil decision feels like a paraphrasing of a tried and true standard. The only difference is the “reasonable suspicion” standard must be down-graded to a search for “possibilities” as opposed to “probabilities” as required for RPG.

What is familiar is the court’s penchant for the “common-sense” approach. In my previous post on Is the Supreme Court of Canada Kicking It Old School, I suggested Justice Moldaver’s decisions were a flash from the past as he relied on his experience as a trial judge where common sense ruled. So too Madame Justice Karakatsantis is reliving old times when she emphasizes how the inquiry “must be fact-based, flexible, and grounded in common sense and practical, everyday experience.” In the SCC universe, the judicial lens is not rose coloured neither is judicial decision making “rocket science” either.

Also familiar in Chehil is the “tweaking” of the Kang-Brown case by requiring sufficiently probative evidence that specifically links this accused to the crime alleged as opposed to relying on generalities. This seemingly new approach is really just an old approach as the SCC renders another decision in support of the “contextual approach.” The real and only question to be answered by the trial judge is the an old one: “Is the totality of the circumstances, including the specific characteristics of the suspect, the contextual factors, and the offence suspected, sufficient to reach the threshold of reasonable suspicion?” Thus, context is everything and everywhere in the realm of judicial possibilities.

Even Madame Justice Karakatsantis’s caution not to base the assessment on investigative profiling is no different than the SCC’s earlier positions on racial profiling and gender-based stereotyping. Thus, we are reminded that “stereotyping and discriminatory factors” are not a justification for intrusive investigative techniques. Yet, a police officer’s “knowledge, training, and experience” are appropriate justifications even though such knowledge is gleaned from profile training.

Another “been there, done that” aspect to this decision is a throw back to my previous post Is Reasonable Suspicion Going To The Dogs? in which I speculate on the forthcoming Chehil case, hoping it will not simply be a re-working of the modified objective standard so popular in the judicial assessment of defences. Unfortunately, this is the case as the trial judge is urged to consider the objective standard in context and in light of the circumstances of the case. Such modification, when done contextually, does not advance the legal issues but obfuscates them. It is difficult enough to use an objective standard based on an artificially designed reasonable person but to use it in the context of real facts and real people is mind boggling at the very least. It would be like taking the facsimile of the reasonable person and pasting it into a personal photo album. The result? Consistent artifice. Now isn’t that contrary to common sense?

Part One of the Supreme Court of Canada’s Decisions In The Sniffer Dog Cases: Don’t Throw Out The Principle With The Bath Water!

Question: When is a legal principle clarified by unanimous court but when the principle must subsequently be applied, unanimity goes out the window? Answer: When the Supreme Court of Canada delivers a much anticipated and needed decision on an issue, which, depending on the outcome, may change the face of police investigatory practice. That is the case, of course, in the two sniffer dog decisions in Chehil and MacKenzie, which were supposed to clarify the standard of “reasonable suspicion.” However, instead of the much-needed direction from the Court, the Supreme Court of Canada leaves us with a ruling that fails to clarify. As we all know, legal principles do not live in a vacuum and if they cannot be applied consistently and with some prediction, then the principle becomes a tool of the law and not the rule of law.

Still, the cases do tell us something, about which I have consistently written: that a seemingly objective standard is a fallacy as it is applied through the subjective sensibilities of the assessor, the judge, and in the context of facts, which themselves are founded on a subjective view of the receiver. Chehil and MacKenzie are cases in point: Chehil sets out the principle, to which everyone on the Court agrees, while MacKenzie applies it through the judicial lens. Unfortunately, the judicial lens is of varying strengths and degrees: not everyone on the Court sees matters the same way. The decision is therefore a fractious one. If our Supreme Court of Canada cannot agree then how can the majority, written by Justice Moldaver as I predicted, find the trial judge, who heard the evidence, is wrong. Can one even be wrong when applying an objective reasonable person standard? Are there two reasonable people? Do we even know how a reasonable person thinks? Ah, there’s the rub and there is the tautology: objective standards are only as good as the facts behind them.

If the above seems like a rant, well I suppose it is: the decisions, when read together are puzzling. Moldaver’s MacKenzie decision is even more so when read against the trial judge’s reasons. Unfortunately, one cannot get beyond the admonition of the trial judge when he found it possible “that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.” This kind of after the fact decision-making seems to permeate the SCC decision too but understandably so as in fact there were drugs found and the accused was a drug courier. But what we must all keep in mind is the purpose of the Charter is not to exonerate criminals but to provide oversight when the awesome powers of the state are used,  in whatever circumstances. Just as innocent people may come under scrutiny in a criminal investigation, as pointed out by Madame Justice Karakatsanis in Chehil, so too seemingly guilty people will benefit from inappropriate state intrusion. This is what safeguards our fundamental principles in a free and democratic society.

It is in this context that we must review and analyze these cases. In part two of my case comment, I will do just that.

 

 

The Subjective/Objective Debate Explained

Over the past year, I have detected a theme in the criminal cases decided by the Supreme Court of Canada: is the criminal law objectively or subjectively based? This is a crucial yet traditional argument touching upon almost every aspect of a criminal charge, including the mental element or mens rea for a crime and criminal law defences. In other words, this issue or debate, impacts all areas of substantive criminal law and therefore is seminal to our understanding of the law and the appropriate and fair application of the law.

As punishment is the ultimate outcome of a finding of guilt in a criminal case, the standard of assessing the accused’s behaviour is of vital importance. Indeed, it is at the core of the presumption of innocence as it provides the tools by which a trier of fact, be it judge or jury, decides whether the prosecutor has proven the case beyond a reasonable doubt.

As discussed in a previous posting, the standard of assessment can make all the difference between a finding of guilt and a finding of innocence. The subjective standard requires the prosecutor to prove, beyond a reasonable doubt, that this accused intended his or her actions while the objective standard requires the prosecutor to prove, beyond a reasonable doubt, that a reasonable person would have not acted as the accused did in the circumstances of the case. By using a standard of reasonableness as opposed to the particular accused’s awareness, the objective liability is a lower standard and therefore easier for the prosecutor to prove. Yet, objective liability crimes, such as manslaughter, carry the maximum sentence of punishment of life imprisonment. The objective standard is harsh and can result in a conviction of a person, who due to personal frailties and inabilities, could never come up to the standard of a reasonable person. These individuals may be viewed as morally innocent as they do not have an intention to commit the prohibited act. In criminal law we justify this conviction by applying the principle of the utilitarian concept of the “greater good,” which emphasizes the “commonweal” and the importance of preventing societal harm. However by doing so, we ignore the societal interest in preventing the punishment of the morally innocent or those who are, to put it bluntly, “substandard” individuals.

The issue of subjective/objective mens rea came to the foreground after the Charter of Rights and Freedoms was implemented. Section 7 of the Charter requires that no one is to face a loss of liberty except in accordance with the principles of fundamental justice. Harkening back to the presumption of innocence, section 7 seemed to require a conviction based on subjective mens rea or individual awareness of the risk of his or her conduct. In a series of cases in the late 1980s and the 1990s, the Supreme Court of Canada agreed, yet disagreed. The Court agreed certain traditional crimes, such as murder and theft, which attracted great social stigma upon conviction (one is branded as a murderer or a thief), required subjective liability. However, other crimes, particularly those requiring a duty of care such as in the licensed activities of driving, need only require objective liability.

Although, the court arrived at a “modified” objective standard in a split decision in Hundal, the end result was far from a true modification. Unlike Justice Lamer’s dissent position, which called for an allowance for personal characteristics in the objective assessment, the majority preferred to “soften” the harshness of the objective standard by requiring the trier of fact to determine liability “contextually” in the circumstances of the particular facts of the case. Instead of taking heed to the specifics of the individual, the person whose liberty interests were at issue, the court preferred to focus on a construct of reality as revealed by the facts of the case. Justice Lamer’s stance, interestingly and importantly for my analysis, was supported by the now Chief Justice McLachlin.   At the end of the 1990s, it was clear that not only was the objective standard here to stay, it had reached constitutional status. Thus, the standardization of crime came into being.

This penchant for objectiveness also began to permeate the defences available to the accused. Certainly, the assessment of defences on a reasonable or objective standard was not new as seen in the assessment of the common law defences of justifications (self-defence) and excuses (duress and necessity). However, the objective assessment was always tempered with a subjective inquiry to ensure that this accused’s actions in face of a subjectively perceived threat were taken into account. However, I would argue that with the passing of the new defence of the person section in the Criminal Code, the objective requirement is forefront and again, the subjective assessment is left to a factual analysis, devoid of any personal viewpoints. See a previous blog I have done on this very issue. As argued by George Fletcher in an essay on the defences, The Individualization of Excusing Conditions, by turning the focus away from the accused, we are imposing an artificiality into the criminal law process wherein we sacrifice the individual in favour of the rule of law. Thus, we forget that defences, such as excuses, are “an expression of compassion for one of our kind caught in a maelstrom of circumstance.”

In the next posting, I will review the past year of SCC cases on the objective/subjective debate to determine if the Supreme Court of Canada has gone too far into the objective territory.

 

This Is Thought-Provoking: Supreme Court of Canada To Hear Provocation Cases

In my last post, I considered the new defence of the person section in the Criminal Code, ruminating on the increased reliance this new section appears to have on the “reasonableness” or “reasonable person” standard of assessing the defence. Although the previous defence of the person sections cried out for modernization, the heavy reliance the government and the courts seem to place on the objective versus subjective standard of assessment, leaves one wondering where the individual fits into the new regime. This approach may make it easier for the trier of fact to determine responsibility but at the cost of dehumanizing the criminal law process by shifting the focus from this individual, who may have been justified in committing the crime, to the community norm of how people ought to act.  It is therefore of interest to see the Supreme Court of Canada hearing two Alberta cases, on the provocation defence found in section 232 of the Criminal Code, this April 26, 2013.

In the first case, R v Cairney, the accused was acquitted of second-degree murder but convicted of the lesser and included offence of manslaughter on the basis of the codified provocation defence in the Code. This defence stands apart from the self-defence sections (now section) of the Code and provides for a very specific partial defence based on very specific circumstances. Typically, the class of defences known as justifications and excuses, when accepted, exonerate the accused completely. Provocation, as a justification, only partially relives the accused from culpability, providing for a reduced charge where the defence is made out. Provocation can only be used as a defence where the accused is being tried for murder and the only possible outcome, if the defence is accepted, is a diminishment of the murder charge to the lesser crime of manslaughter. Often the defence is used in conjunction with other defences, such as the more general defence of the person or even the excuses of duress or necessity. In those instances, although provocation as a defence is raised, an accused may be acquitted if the trier of fact accepts these other defences or simply has a reasonable doubt on the accused’s guilt based on the totality of the evidence. Indeed, often the judge in instructing the jury on a murder trial may instruct that even if a particular defence itself does not raise a reasonable doubt, criminal intention may be negated on the basis that all of the defences “rolled up” together may raise a reasonable doubt. Thus, the whole is greater than the parts. In the Cairney case, this instruction was given, but by the conviction for manslaughter, provocation seems to be the controlling factor.

On the Crown appeal, the Alberta Court of Appeal was unanimous in allowing the appeal and sending the matter back, as a murder charge, to trial. In the court’s opinion, the defence of provocation had “no air of reality” and was therefore not properly before the jury. The concept of “air of reality” creates a threshold test, which requires there to be some evidence, upon which a properly instructed jury, acting judicially, could render a verdict based on the defence. In other words, there must be an evidential basis for the defence before the jury should consider it.  The judge does not weigh the evidence, she merely ensures that such evidence is present. It is the function of the jury to weigh the evidence, in its totality, to come to a final decision on guilt or innocence.

This threshold test is not, however, without controversy, as it does require the accused to point to some evidence, which may result in requiring the accused to lead evidence. Although this is viewed as an “evidential” burden only, where the accused has only one defence and is unable to overcome the threshold test, the accused will have no defence at all. On the other hand, there is a public interest in ensuring that a person is tried on the evidence and not on a fanciful doubt.

In the Cairney case, the Alberta Court of Appeal found there was no “air of reality” to the defence based on the objective assessment required for determining whether the wrongful act or insult directed toward the accused, was “sufficient to deprive an ordinary person of the power of self-control” and on the subjective element of the defence, which required the accused to act “on the sudden.” As, in the Court of Appeal’s view, there was no evidence supporting these factors, the defence was not viable and should not have been left to the jury.

There are two concerns here: first, whether or not the Court of Appeal is substituting their opinion when the trial judge, who was present at the trial, decided otherwise and second, whether or not the jury made their decision based on something other than provocation, which would make the manslaughter finding appropriate. Certainly, Cairney could have been acquitted of murder – not having the subjective foresight of death – and yet convicted of manslaughter as he had the objective foreseeability of bodily harm, all without consideration of the provocation defence. The Appellant’s Factum filed on behalf of Cairney at the SCC can be viewed here.

The other Alberta appeal case on provocation, R v Pappas, suggests a more nuanced point. Although Pappas raised the provocation defence, he was convicted of murder at trial. At issue, besides the argument that the trial judge misdirected the jury on the defence, was the post conduct evidence of Pappas disposing of some of the victim’s personal belongings and attempting to leave the country, and whether this evidence was relevant on the issue of provocation. Crown counsel thought it was and so urged the jury to consider the post conduct evidence as negating the provocation defence. Counsel for the accused argued the evidence was irrelevant and should not have been left to the jury on their consideration of provocation.

The majority of the Court of Appeal found there was no error as the trial judge, when referring to the evidence, instructed the jury that the evidence “has no relevance to the issues you must decide,” which was effectively telling the jury the evidence had “no probative value.” However, the trial judge connected the irrelevancy to the issue of identification and did not specifically refer to the defence of provocation. Furthermore, evidence, which has no probative value but is highly prejudicial to the accused, as this evidence may be, should be deemed inadmissible at trial. If the evidence and the manner in which the Crown referred to it in his jury address effectively “took away” the provocation defence from the jury, then the accused should have a new trial. Certainly Justice Berger, in dissent, disagreed with the majority on this issue, finding that the jury instruction did not clearly and unequivocally direct the jury not to use the evidence. Both the respondent and the Appellant’s Factum for the SCC can be viewed here.

Another issue raised on Pappas is the whether or not the defence had an “air of reality” to it. Although the majority preferred not to second-guess the trial judge and proceeded on the basis the defence was viable, Justice Berger came out strongly in the dissent for the defence being left to the jury as it was “for the jury to measure the Appellant’s conduct at the critical moment.” This brings us back to the Cairney case and the role of the jury. These cases may provide some needed guidance on not only provocation as a defence but generally on the issue of threshold tests and on the level of deference appellate courts should have for the jury process.

Canada’s New Defence of the Person Section: Is It Too Reasonable?

Quietly, Canada’s criminal law changed dramatically, without a word of criticism, on March 13, 2013 with the coming into force of the Citizen's Arrest and Self Defence Act. Perhaps, everyone was too focused on the broadened citizen arrest powers to notice the dramatic change in law or perhaps the legal community is at a loss for words. Without fanfare or discussion, Canada’s self-defence laws, from sections 34 to 42, were swept away on March 13, 2013 to be replaced by two broad sections: the new section 34, which outlines the defence of the person and the new section 35, which is defence of property. For purposes of this post, I will be making reference to the defence of the person found in section 34 and not defence of property under section 35. Although the new section 34 appears to be broader – no more does the law distinguish between provoked and unprovoked attacks – there is a noticeable emphasis on the reasonableness of the response as the standard for assessment.

Admittedly the old sections were cumbersome and confusing: section 34(1) offered a different defence from 34(2) and they both differed from sections 35 and 37. Then there were the myriad of defence of property sections from sections 38 to 42. Self-defence, as codified before the amendments, distinguished between a provoked and unprovoked attack. Section 34(1) could only be used as a defence by an accused who was subject to an unprovoked attack by the victim and who did not intend to cause death or grievous bodily harm in responding to that attack. In those very limited circumstances, the accused could use this self-defence section if the force used was no more than necessary to repel the attack.

Subsection 2 of that same section 34 offered a different and much broader defence. The section was silent as to who started the initial assault and therefore could be used by an accused who provoked an assault as well as an accused who did not provoke the assault. Additionally, the section applied where the accused intended to cause death or grievous bodily harm or did not intend it – as long as the victim died as a consequence of the action. The accused must have a reasonable apprehension of risk of death or grievous bodily harm from the victim to use the defence. The accused must believe on reasonable grounds that he or she could not otherwise be preserved from death or grievous bodily harm other than to use the force, which resulted in the victim’s death. The assessment was not totally objective, however, as the accused must have a subjective belief that force was necessary but must have a reasonable basis for the belief. Therefore, the defence a blending of objective and subjective elements.

Self-defence in section 35 was not used as often as section 34. The section restricts self-defence in circumstances where accused, without justification, assaults another or provokes an assault. The accused must not intend to cause death or grievous bodily harm before the need to defend self arose. However, to use the section, the accused must have a reasonable apprehension of death or grievous bodily harm and had a reasonable belief that force was necessary to preserve himself from death or grievous bodily harm. Finally, the accused must have attempted to retreat from the situation.

The final defence of the person section, under s. 37, is again a broader section of self-defence, which also extends the defence to the defence of another person under the accused’s protection. This section permits force only where the accused is preventing an assault or a further assault. Although the response of the accused must be reasonable there is no requirement that there be a reasonable apprehension of death or harm or a reasonable belief force was necessary to prevent death or harm.  The only requirement is the need for proportionality and therefore the force used must be no more than is necessary to repel the assault.

There are many difficulties with these sections, including the sheer difficulty in actually reading these sections and making sense of them.

Of course, these old sections come to us through the English common law, hence the requirement to retreat in where the accused is the aggressor. The sections thus deals with the seemingly “innocent” accused differently than the “aggressor” accused. The self-defence section 35, for the aggressor accused, is much more restrictive than s.34(1), for the innocent accused unjustly provoked. Contrasting the two sections, section 35 requires the accused, although the aggressor, not to intend death or grievous bodily harm but to have a reasonable belief that he would be subject to death or grievous bodily harm unless he acted. The force used must be no more than necessary and there must be an attempt to retreat. Indeed, a very difficult section to use considering the prerequisites. However, section 34(2), as broadly interpreted by the courts, filled that gap to include virtually any situation. The interpretation was so expansive, it seemed a wonder why section 35 was required at all. However, even with s. 34(2) expanding who could use self-defence, the objective/subjective assessment ensured that only those accused who fulfilled the objective/subjective requirements could use the defence successfully.

Two major difficulties are identified with this approach: firstly, to assess an accused’s actions at a time of split-second decision-making seemed mechanical and unrealistic. For an accused faced with an aggressive victim or for an accused in a highly emotional circumstance, the requirement that the accused use no more force than necessary was difficult to determine. Thus, the law stepped back from the emotions and required an objective assessment as well. This perhaps made it easier for the trier of fact, who was not faced with these circumstances and who could not possibly appreciate the life and death decision-making arising at that instance. But, it also made it much more difficult for an accused, who made a decision at the time in a heightened situation, to be then thinking of what application force, in response to that situation, is no more than necessary.

Secondly, the self-defence laws were so limiting that it failed to allow for exceptional circumstances, such as what arose in the Lavallee case, where a battered woman killed her husband. This case, in light of the recent SCC Ryan case (upon which I wrote a previous post here) also raises issue with other defences such as duress and defences – known as excuses – as opposed to self-defence, which are considered justifications. I will not delve into the these cases, other than to say a deeper analysis of them is required in light of this new legislation.

For further explanation, justifications such as self-defence, recognize that the elements of the crime have been made out – that both actus reus and mens rea are present – but the accused actions are justified as the accused faced external pressures (in the case of self-defence from another person) which caused the accused to act contrary to the law. As the major theme of our criminal law is choice and the ability of an actor to make the right choice, such pressures effectively take away choice, leaving the accused no other choice but to act as he or she did. In a justification defence, the accused challenges the wrongfulness of an action which would technically be a crime. In the circumstances the fundamental values of society and of the criminal law are promoted by disobeying the law rather than following it. Therefore, in self-defence there is a crime but the actions of the accused are not “wrong” and therefore the accused should not be held responsible for the crime and should therefore not be punished by the criminal justice system. Of course the real question is: how far does society want to go in justifying these criminal acts? Are our self-defence laws truly a reflection of our society’s fundamental values if they do not offer a defence for a battered spouse or a psychologically bullied child?

Do these changes then rectify the two problems as identified above? On the issue of creating an artificial scenario upon which the accused is to be assessed, the new section does little to alleviate this by imposing very clearly an objective assessment of the circumstances and leaving little room for individualization. Although the new amendments do equalize the section in the sense that now “any person” can use the defence, the list of factors to be considered in assessing the reasonableness of the criminal act ensures that all of the limiting circumstances, which were clearly set out in the old sections, are now found, not as clearly, in a list of factors which must be considered by the trier of fact.

Additionally, the assessment, which was viewed under the old sections as a blending of subjective/objective considerations, now appears to be more decidedly objective. There is no longer a consideration of the accused’s subjective belief in the force used being necessary. Now, stepping back, this change should be welcome as it does move away from the idea that an accused must weigh to the niceties the level of force used at the time. However, it also takes away any assessment of the accused’s subjective belief that the force used at the time was necessary. Instead the subjective belief only goes to whether or not the accused believed, reasonably of course, that the “force is being used against them or another person or that a threat of force is being made against them or another person.” After that “concession” to human frailty, the assessment is all done through the eyes of the reasonable man in an almost regulatory offence manner reminiscent of the due diligence or all due care defence in which the defendant will be acquitted if he or she or it (corporation) acted reasonably in all of the circumstances and took all reasonable steps required to avoid the harm. The only factor missing is the burden of proof, which in a regulatory scheme is “balance of probabilities” as opposed to the higher standard of proof “beyond a reasonable doubt.” Even in the criminal law’s cherished burden of proof the concept of “reasonableness” is present!

As to whether the new section will support extraordinary circumstances of a battered spouse or abused child will remain to be seen. Again, the lack of individualization in the assessment is concerning and although one of the factors to consider in determining the reasonableness of the act involves a review of the nature of the relationship between the accused and victim, the fact this must be assessed through the reasonableness lens does not permit a full consideration of the complexities of an abusive relationship.

Only the use of this section in court with a real set of facts will enlighten us on the viability and justiciability of this new defence of the person section. However, at first blush, it appears this is yet another example of how our criminal law is becoming more objective in outlook and less like the traditional principles of individualization, which was the hallmark of the criminal law as a humane law.

 

 

 

The SCC’s Whatcott Decision Explores The Meaning Of “Hatred’ While Continuing The Subjective/Objective Debate

As discussed in previous blog postings, the Supreme Court of Canada appears to be moving towards the objective standard in criminal law – a standard in antithesis to the subjective standard which requires the trier of fact to determine the accused’s perception of the facts in deciding upon guilt or innocence. The objective standard found in objective mens rea offences and used as a standard of assessment in many defences, relies upon the seemingly objective perception of the reasonable person – a legal construct endowed with the standard of a standard citizen from a standard community.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

 

Reasonable And Probable Grounds and Philosophy’s Theory of Knowledge

In an effort to increase my knowledge, I decided to take a MOOC or Massive Open On-line Course offered by Coursera. I chose Introduction of Philosophy taught through the University of Edinburgh. Admittedly, I am finding the course a bit elementary but what did interest me was the lecture on Epistemology and the Theory of Knowledge, a philosophical area concerned with “knowledge-that” as opposed to “knowledge-how.” “Knowledge how” is how we know to do certain tasks – how to build a birdhouse, for instance. “Knowledge that” or propositional knowledge involves knowing that birds fly or knowing that s.265 is the assault section in the Criminal Code.

Plato was the first philosopher to detail the requirements of propositional knowledge, which is known as the “traditional” analysis of knowledge. Propositional knowledge or how someone knows a proposition is true, according to Plato, is based on three criteria. First, the knowledge must be believed by the person proposing it, meaning that one can only know something if they believe it. Second, the knowledge must be true. Thus, even if we believe in a state of facts, if that belief state is not true, there is no knowledge. This criterion requires objective truth. Third and lastly, there must be a justification for believing the knowledge is true. In other words, we must be able to articulate, based on “sound reasoning and solid evidence,” why we believe the knowledge to be true. If all three criteria are present, then the knowledge is accepted as true knowledge as opposed to “random” knowledge, which is based on a “lucky guess.”

All of this sounds very familiar and it should sound familiar as indeed in the legal arena, this Theory of Knowledge is used. For example, in criminal procedure, before a police officer can arrest an accused he must have reasonable and probable grounds or RPG for the arrest. There is no “fixed” definition of rpg, primarily due to the Charter, which prefers a contextual approach to determining whether or not an officer has RPG in the circumstances of each case. However, there are descriptions of rpg in differing areas of the law, which seem to be consistent. For instance, RPG is similar to the traditional English concept of “reasonable and probable cause” required for prosecuting a malicious prosecution case. The term is defined in the 1938 English House of Lords case Herniman v. Smith where Lord Atkin described it as


… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

In the Supreme Court of Canada, the Court came to similar conclusions in Bernshaw when Madame Justice L’Heureux-Dube commented on previous decisions, which called rpg “credibility-based probability” and “reasonable probability.” Despite, no single definition for the concept, there seems to be a very good general understanding of what RPG means. This differs from the concept of “reasonable suspicion,” which, according to Kang-Brown “means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” As discussed in a previous blog, the SCC will clarify “reasonable suspicion,” hopefully, when they release the judgments on two sniffer dog cases, MacKenzie and Chehil.

Clearly, the concept of RPG is Plato’s propositional knowledge, which is fulfilled when the person has a sincere belief in a true set of facts based on justifiable reasons.

However, not all philosophers have agreed with Plato’s Theory of Knowledge. Edmund Gettier did not agree that justified true belief was knowledge. To support his dissent, he created what is known as Gettier Counterexamples or Gettier Cases, which present situations where Plato’s Theory fails.

Two Gettier Counterexamples were given in the lecture I watched. One counterexample was called The Stopped Clock Case. In this case, every day you pass by a clock and check the time. One morning you pass by the clock, which shows the time as 7:00 a.m. As you have taken time from this clock countless of times before, you sincerely believe the time is correct and your objective belief is justified, as the clock has been correct every other time you have used the clock. Indeed, it is 7:00 a.m. However, the clock is not working and had stopped at 7:00 a.m. the previous morning. It is just luck that you happened to glance at the clock when it apparently showed the correct time. Although on the surface, Plato’s Theory was fulfilled, in actuality the sincere belief was not premised on truth.

These fallacies show that knowledge is not necessarily justifiable true belief. Yet, it is this very premise – that knowledge can be justified if it is based on a true belief – which lies at the heart of reasonable and probable grounds. It is possible, therefore, that what is accepted as RPG is merely a Gettier Case and should not form the basis of a criminal charge. Perhaps, it is time to rethink even the basic propositions of criminal law to ensure we have a relevant and viable system.

Not only, did this MOOC make me think, but it also left me wondering; does the law need fewer lawyers and more philosophers?